Volume 345 — North Carolina Reports

<bold>1. Workers' Compensation § 41 (NCI4th) — prisoner injured</bold> <bold>on prison job — workers' compensation as exclusive remedy</bold> Workers' compensation is the exclusive remedy for prisoners injured while working on prison jobs because the effect of N.C.G.S. § <cross_reference>97-13</cross_reference> (c) is that a working prisoner whose injuries arise out of and in the course of his work may get workers' compensation benefits by applying to the Industrial Commission within twelve months after discharge from prison, as long as the prisoner is still disabled from the injury at the time of discharge; section <cross_reference>97-13</cross_reference> (c) further provides that a prisoner who is entitled to such compensation is subject to section <cross_reference>97-10.1</cross_reference> to the same extent as any other employee or employer; and section <cross_reference>97-10.1</cross_reference> establishes that workers' compensation is the exclusive remedy for injured workers. Therefore, plaintiff prisoner did not have the right to file a claim under the Tort Claims Act for injuries suffered while working on a prison farm. <bold>Am Jur 2d, Workers' Compensation § 157</bold>. <bold>2. Workers' Compensation § 41 (NCI4th) — working prisoners — workers'</bold> <bold>compensation as exclusive remedy — equal protection — public</bold> <bold>policy</bold> The limitation of working prisoners to workers' compensation as their exclusive remedy does not violate their rights to<page_number>Page 129</page_number> equal protection by discriminating between working and nonworking prisoners and by discriminating between working prisoners and other employees. Nor does the exclusivity provisions of the Workers' Compensation Act in N.C.G.S. §§ <cross_reference>97-13</cross_reference> (c) and <cross_reference>97-10.1</cross_reference> contravene sound public policy by lowering the incentive for prisons to provide safe working conditions for prisoners. <bold>Am Jur 2d, Workers' Compensation § 157</bold>.

<bold>1. Criminal Law § 914 (NCI4th Rev.) — first-degree</bold> <bold>murder — instructions — premeditation and deliberation and felony</bold> <bold>murder — no denial of unanimous verdict</bold> The trial court did not violate defendant's constitutional right to a unanimous jury verdict in its instructions informing the jury that it could convict defendant of first-degree murder under<page_number>Page 373</page_number> either or both theories of premeditated and deliberate murder and felony murder, and the instructions did not constitute plain error, where the instructions made it clear to the jury that it had to be unanimous on both the verdict and the basis for that verdict; the instructions could not have been interpreted by the jury to permit different jurors to convict defendant on the basis of different theories; and the verdict sheet and the jury poll show that the jury did not construe the instructions to allow it to convict defendant of first-degree murder on a basis that was not unanimously found beyond a reasonable doubt in that the jury found defendant guilty of both premeditated and deliberate murder and felony murder and each juror indicated that he or she found defendant guilty of first-degree murder based on both theories. <bold>Am Jur 2d, Criminal Law § 1014</bold>. <bold>2. Homicide § 727 (NCI4th) — first-degree murders — premeditation</bold> <bold>and deliberation and felony murder — sentence for</bold> <bold>underlying felony</bold> Where defendant was convicted of two first-degree murders based upon theories of premeditation and deliberation and felony murder, the underlying felony of arson did not merge with the murders, and the trial court did not err by sentencing defendant separately for each of the murders and for the underlying felony of arson. <bold>Am Jur 2d, Homicide §§ <cross_reference>44-48</cross_reference>, 52, 184, 439, 501</bold>. <block_quote> <bold>Modern status of the rules requiring malice "aforethought,"</bold> <bold>"deliberation," or "premeditation," as elements</bold> <bold>of murder in the first degree. 18 ALR4th 961</bold>.</block_quote> <bold>3. Homicide § 727 (NCI4th) — two first-degree murders — premeditation</bold> <bold>and deliberation and felony murder — each murder</bold> <bold>as underlying felony — sentences for both murders</bold> Where defendant was convicted of two first-degree murders based upon theories of premeditation and deliberation and felony murder, there was no merger of either murder conviction by its use as an underlying felony for the other murder, and the trial court did not err by sentencing defendant separately for each murder. <bold>Am Jur 2d, Homicide §§ <cross_reference>44-48</cross_reference>, 52, 184, 439, 501</bold>.<page_number>Page 374</page_number> <block_quote> <bold>Modern status of the rules requiring malice "aforethought,"</bold> <bold>"deliberation," or "premeditation," as elements</bold> <bold>of murder in the first degree. 18 ALR4th 961</bold>.</block_quote> <bold>4. Criminal Law § 1156 (NCI4th Rev.) — arson — nonstatutory</bold> <bold>aggravating factor — course of conduct endangering others —</bold> <bold>contemporaneous murder convictions not used</bold> The trial court did not improperly use defendant's contemporaneous murder convictions as a nonstatutory aggravating factor for an arson conviction when it found that "the arson was committed during a course of conduct in which other crimes endangered the lives of others" where the "other crimes" involved assaults on one murder victim's children rather than the murders. Furthermore, this "course of conduct" clearly related to the purposes of sentencing and was properly found as a nonstatutory aggravating factor. <bold>Am Jur 2d, Arson § 31</bold>. <bold>5. Criminal Law § 1218 (NCI4th Rev.) — arson — aggravating</bold> <bold>factor — armed with deadly weapon — not basis for joinable</bold> <bold>crimes</bold> The trial court could properly find as an aggravating factor for an arson conviction that "defendant was armed with a deadly weapon at the time of the crime" where defendant was convicted of two counts of first-degree murder and one count of first-degree arson, and the act of carrying the deadly weapon could have been, but was not, the basis for other joinable criminal convictions. <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <bold>6. Criminal Law § 697 (NCI4th Rev.) — requested instruction</bold> <bold>given in substance — no error</bold> The trial court did not err by refusing to give the jury in a first-degree murder prosecution defendant's requested instruction on lack of mental capacity where the court instructed the jury in substantial conformity with the specific instruction requested by defendant. <bold>Am Jur 2d, Trial §§ 1259, 1260</bold>.<page_number>Page 375</page_number> <bold>7. Homicide § 33 (NCI4th) — first-degree murder — premeditation</bold> <bold>and deliberation — cool state of blood — sufficiency</bold> <bold>of evidence</bold> The State's evidence was sufficient to support a finding by the jury that defendant killed the victims in a cool state of blood so as to support his conviction of two first-degree murders based upon the theory of premeditation and deliberation, notwithstanding defendant may have been angry or in an emotional state at the time he shot the victims, where the evidence tended to show that defendant entered one victim's apartment without a pistol, argued with this victim, left the apartment, and then returned to the apartment with a pistol; after again arguing with such victim, defendant shot his way into a bathroom where the two victims and three small children had locked themselves away from defendant's reach; once inside the bathroom, defendant, a Marine experienced with firearms, took aim and fired a bullet into the first victim's neck; and defendant then placed the muzzle of the gun next to the hand the second victim had raised to defend herself and shot her in the head. <bold>Am Jur 2d, Homicide §§ 60, 115, 292</bold>. <bold>8. Evidence and Witnesses § 2302 (NCI4th) — first-degree</bold> <bold>murders — expert testimony that defendant "snapped" — exclusion</bold> <bold>as harmless error</bold> The trial court erred in excluding testimony by a forensic psychologist that defendant had "snapped" at the time of two murders because this testimony tended to show that defendant was not in a cool state of blood when he shot the victims and was thus relevant to show that defendant did not premeditate and deliberate the killings. However, this error was not prejudicial where the witness was allowed to give testimony about defendant's mental state at the time of the murders which indicated that defendant did not form the specific intent to kill, and the jury's verdicts would not have been different if the witness had given his opinion that defendant "snapped." <bold>Am Jur 2d, Expert and Opinion Evidence §§ 193, 194, 362, 363</bold>. <block_quote> <bold>Admissibility of expert testimony as to whether</bold> <bold>accused had specific intent necessary for conviction.</bold> <bold>16 ALR4th 666</bold>.</block_quote><page_number>Page 376</page_number>

<bold>1. Appeal and Error § 291 (NCI4th) — notice of appeal not</bold> <bold>given — treated as petition for certiorari</bold> The Court of Appeals had the authority to review a trial court's judgment in an automobile accident case even though plaintiff never filed a notice of appeal from the judgment. Construing Appellate Rules 27 (c) and 21 (a)(1) together, the appellate court has the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely matter. <bold>Am Jur 2d, Appellate Review § 339</bold>. <bold>2. Trial § 526 (NCI4th) — automobile accident — damages —</bold> <bold>verdict of one dollar — motion to set aside denied — no</bold> <bold>abuse of discretion</bold> There was no abuse of discretion in an automobile accident case where the jury awarded $1.00 in damages and the trial court denied plaintiff's motion to set aside the verdict as against the weight of the evidence. The record demonstrates that defendant contested the existence of all of plaintiff's alleged injuries and the jury was presented with all of the evidence, was instructed properly on the law, and made its decision accordingly. It cannot be concluded from the "cold record" that the trial court's ruling in denying plaintiff's motion to set aside the verdict on the issue of damages probably amounted to a substantial miscarriage of justice. <bold>Am Jur 2d, Judgments § 331</bold>.

<bold>Jury § 146 (NCI4th) — capital murder — jury selection —</bold> <bold>instruction — no error</bold> There was no prejudicial error during jury selection for a capital first-degree murder prosecution where the court instructed prospective jurors that "[i]f the jury finds beyond a reasonable doubt the existence of all facts necessary to impose the death penalty, the law of North Carolina requires that the juror vote to recommend that the defendant be sentenced to death." The judge emphasized to the jury that the instruction contained general information about the proceedings, explained that he would give full instructions after the presentation of the evidence, and full and proper instructions were given at the sentencing proceeding. <bold>Am Jur 2d, Criminal Law § 628; Homicide § 510</bold>. <bold>2. Jury § 119 (NCI4th) — capital murder — jury selection —</bold> <bold>defense questions excluded — no error</bold> The defendant in a capital first-degree murder prosecution did not show an abuse of discretion or prejudice where the court sustained the State's objections to two of defendant's questions during jury selection. Defendant was allowed to ask other questions to achieve the same inquiry sought by both questions and no juror was accepted to whom defendant had legal objections upon any ground. <bold>Am Jur 2d, Criminal Law § 913; Jury § 210</bold>. <bold>3. Jury § 112 (NCI4th) — capital murder — jury selection —</bold> <bold>motion for individual voir dire — victim a police officer —</bold> <bold>relevant — denial of motion not error</bold> The trial court did not err during jury selection for a capital first-degree murder prosecution by denying defendant's motion for individual <italic>voir dire</italic> of prospective jurors or by denying defendant's motion to disqualify the venire where both motions were based on defendant's contention that the fact that the victim was a police officer was not relevant. The court did not err by allowing the State to present evidence that the victim was a<page_number>Page 498</page_number> police officer, there was no need for individual <italic>voir dire</italic> to prevent prospective jurors from learning that fact, and no error in not disqualifying the jury because they heard some of the prospective jurors volunteer that they knew this case involved the killing of an officer. <bold>Am Jur 2d, Evidence § 328; Jury § 198</bold>. <bold>4. Criminal Law § 363 (NCI4th Rev.) — murder of police officer</bold> <bold>— uniformed police officers in courtroom — motion to</bold> <bold>exclude denied — no abuse of discretion</bold> The trial court did not abuse its discretion in a capital first-degree murder prosecution for the killing of an off-duty police officer by denying defendant's motion to exclude uniformed police officers from the courtroom because they would improperly influence the jury. The court stated in denying the motion that it would consider the motion further if there was anything that went beyond an occasional appearance on an individual basis by a uniformed officer who might be a witness or a spectator. <bold>Am Jur 2d, Trial § 254</bold>. <bold>5. Homicide § 257 (NCI4th) — capital murder — premeditation and</bold> <bold>deliberation — sufficiency of evidence</bold> There was sufficient evidence of premeditation and deliberation in a capital first-degree murder prosecution where defendant's conduct before and after the killing supports a finding that the scuffle with the victim did not overcome defendant's faculties and reason. Defendant carried a loaded gun into a Food Lion and used it to accomplish a robbery; a witness testified that she saw defendant point the gun at the victim and say, "If you move, you're dead"; a Food Lion cashier who witnessed the incident heard the robber say, "Don't move or I'll kill you"; and several witnesses testified that defendant fired two or more shots with a pause in between. <bold>Am Jur 2d, Homicide §§ 46, 52, 228, 439, 472</bold>. <block_quote> <bold>Jury instructions as to presumption of deliberation and</bold> <bold>premeditation. 96 ALR2d 1435</bold>.</block_quote> <block_quote> <bold>Modern status of the rules requiring malice aforethought,</bold> <bold>deliberation, or premeditation as elements of murder in the first</bold> <bold>degree. 18 ALR4th 961</bold>.</block_quote><page_number>Page 499</page_number> <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to</bold> <bold>establish statutory aggravating circumstance that murder was</bold> <bold>committed to avoid arrest or prosecution, to effect escape from</bold> <bold>custody, to hinder governmental function or enforcement of law,</bold> <bold>and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 755</bold>.</block_quote> <bold>6. Criminal Law § 914 (NCI4th Rev.) — capital murder —</bold> <bold>instructions — unanimity on theory of murder — no plain</bold> <bold>error</bold> There was no plain error in a capital first-degree murder prosecution where defendant contended that the instructions given by the court did not require the jury to be unanimous on the theory of first-degree murder it used to support its verdict. A similar argument was overruled in <italic>State v. Alford</italic>, <cross_reference>339 N.C. 562</cross_reference>, the record of which included a verdict sheet similar to the one in this case, as well as a polling of the jurors. The jury here received proper instructions and there is no risk that the jury was not unanimous as to either theory upon which it based its finding of guilty of first-degree murder. <block_quote> <bold>Am Jur 2d, Criminal Law §§ 675, 918; Homicide § 511; Trial §§</bold> <bold>838, 1437</bold>.</block_quote> <bold>7. Homicide § 552 (NCI4th) — capital murder — instruction on</bold> <bold>second-degree murder refused — no error</bold> The trial court did not err in a capital prosecution for first-degree murder by not instructing the jury on the lesser included offense of second-degree murder. Although defendant contends that it is unconstitutional to require him to negate premeditation and deliberation in order to be entitled to an instruction on second-degree murder, the State has the burden of proving the elements of first-degree murder beyond a reasonable doubt. Due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. <block_quote> <bold>Am Jur 2d, Homicide §§ 496, 511, 530, 533, 544.5; Trial §§</bold> <bold>1427, 1430</bold>.</block_quote> <block_quote> <bold>Modern status of law regarding cure of error in instruction</bold> <bold>as to one offense by conviction of higher or lesser offense.</bold> <bold>15 ALR4th 118</bold>.</block_quote><page_number>Page 500</page_number> <bold>8. Homicide §§ 552, 558 (NCI4th) — capital murder — instruction</bold> <bold>on second-degree murder and manslaughter — carrying gun to</bold> <bold>robbery — refusal to give instruction — no error</bold> The evidence in a capital prosecution for first-degree murder did not support an instruction on the lesser included offenses of second-degree murder and manslaughter; the uncontradicted evidence that defendant carried a loaded gun to commit a robbery and threatened to kill the victim if the victim moved is sufficient positive evidence of premeditation and deliberation. <block_quote> <bold>Am Jur 2d, Homicide §§ 496, 511, 530, 533, 544.5; Trial §§</bold> <bold>1427, 1430</bold>.</block_quote> <block_quote> <bold>Modern status of law regarding cure of error in instruction</bold> <bold>as to one offense by conviction of higher or lesser offense.</bold> <bold>15 ALR4th 118</bold>.</block_quote> <bold>9. Homicide § 588 (NCI4th) — capital murder — imperfect</bold> <bold>self-defense — instruction refused — no error</bold> The trial court did not err in a capital prosecution for first-degree murder by not instructing the jury on imperfect self-defense where there was positive, uncontradicted evidence that defendant formed an intent to kill with malice and after premeditation and deliberation. Defendant did not act without murderous intent. <bold>Am Jur 2d, Homicide §§ 249, 519</bold>. <block_quote> <bold>Modern status and rules as to burden and quantum of proof to</bold> <bold>show self-defense. 43 ALR3d 221</bold>.</block_quote> <block_quote> <bold>Accused's right in homicide case to have jury instructed as</bold> <bold>to both unintentional shooting and self-defense. 15 ALR4th 983</bold>.</block_quote> <bold>10. Evidence and Witnesses § 82 (NCI4th) — capital murder —</bold> <bold>victim's status as police officer — relevant</bold> The trial court did not err in a first-degree murder prosecution by allowing the State to present evidence that the decedent was a police officer. Although defendant contends that this evidence was not relevant and that the danger of prejudice outweighed the probative value, the victim's status as a police officer led him to pursue defendant, which led to defendant shooting him. The actions of an officer who arrived at the scene of the crime shortly after the shooting and the identity of the victim as<page_number>Page 501</page_number> a police officer are clearly circumstances which throw light upon the crime. Other witnesses' references to the victim as "Officer Buitrago" simply incorporated the title "Officer." <bold>Am Jur 2d, Criminal Law § 378; Evidence § 328</bold>. <block_quote> <bold>Sympathy to accused as appropriate factor in jury</bold> <bold>consideration. 72 ALR3d 842</bold>.</block_quote> <bold>11. Criminal Law § 1366 (NCI4th Rev.) — capital sentencing —</bold> <bold>killing during course of robbery — theory of conviction —</bold> <bold>no error in submitting</bold> The trial court did not err during a capital sentencing proceeding by submitting the aggravating circumstance that the killing was committed during the course of an armed robbery where defendant argued that the conviction based on premeditation and deliberation was infirm, so that the only theory of conviction was the felony murder rule and the court erred by submitting the underlying felony as an aggravating circumstance. However, the trial court did not err in relation to the conviction based on premeditation and deliberation and the trial court properly submitted the circumstance. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(5). <bold>Am Jur 2d, Homicide §§ 43, 46, 554</bold>. <block_quote> <bold>Sufficiency of evidence, for purpose of death penalty, to</bold> <bold>establish statutory aggravating circumstance that murder was</bold> <bold>committed to avoid arrest or prosecution, to effect escape from</bold> <bold>custody, to hinder governmental function or enforcement of law,</bold> <bold>and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 755</bold>.</block_quote> <block_quote> <bold>Sufficiency of evidence, for death penalty purposes, to</bold> <bold>establish statutory aggravating circumstance that murder was</bold> <bold>committed in course of committing, attempting, or fleeing from</bold> <bold>other offense, and the like — post</bold> <bold><italic>Gregg</italic></bold> <bold>cases. 67 ALR4th 887</bold>.</block_quote> <bold>12. Criminal Law §§ 1381, 694 (NCI4th Rev.) — capital sentencing</bold> <bold>— victim an off-duty police officer — mitigating</bold> <bold>circumstance that victim a voluntary participant in crime —</bold> <bold>not submitted</bold> The trial court did not commit plain error in a capital sentencing proceeding by failing to submit the statutory mitigating circumstance that the victim was a voluntary participant in<page_number>Page 502</page_number> defendant's homicidal conduct or consented to the homicidal act where the victim was an off duty police officer who pursued defendant after a robbery. The evidence did not support the submission of the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(3) mitigating circumstance in that the victim had nothing to do with the armed robbery and merely attempted to apprehend defendant when defendant fled. Furthermore, the court submitted a nonstatutory mitigating circumstance of whether the shot was fired as a result of a struggle between defendant and the victim and whether that had mitigating value. <block_quote> <bold>Am Jur 2d, Criminal Law §§ 598, 599, 628; Homicide § 554;</bold> <bold>Trial § 1760</bold>.</block_quote> <bold>13. Evidence and Witnesses § 2877 (NCI4th) — capital sentencing</bold> <bold>— cross-examination of defendant</bold> Defendant was not prejudiced in a capital sentencing hearing by the prosecutor's cross-examination of him where defendant argued that the total effect of the prosecutor's questions about defendant's reliance on counsel, his plea to a prior crime, and a suggestion that defendant testified because his counsel told him that was the only way to save his life violated his constitutional rights to counsel and to enter a plea of guilty to the prior crime while maintaining his innocence. Defendant did not request a jury instruction on these rights, concedes that the prosecutor is allowed to impeach by evidence of prior crimes, and the court sustained defendant's objections to improper questions or comments by the prosecutor. <bold>Am Jur 2d, Criminal Law § 985</bold>. <block_quote> <bold>Modern status of rules and standards in state courts as to</bold> <bold>adequate representation of client. 2 ALR4th 27</bold>.</block_quote> <block_quote> <bold>Adequacy of defense counsel's representation of criminal</bold> <bold>client regarding prior conviction. 14 ALR4th 227</bold>.</block_quote> <bold>14. Criminal Law §§ 433, 475 (NCI4th Rev.) — capital sentencing</bold> <bold>— prosecutors' argument — defendant's failure to testify at</bold> <bold>guilt phase — failure to plead guilty</bold> References in the prosecutor's closing argument in a capital sentencing proceeding to defendant's failure to testify or to his election to plead not guilty were harmless beyond a reasonable doubt. The prosecutor's single reference to defendant's failure to<page_number>Page 503</page_number> testify at the guilt innocence proceeding could not have contributed to the imposition of the death penalty because the reference was made during the sentencing proceeding in which defendant testified; the jury had already found defendant guilty and there is no danger that the reference caused the jury to presume defendant's guilt or to regard his silence as indicative of guilt. The single reference to defendant's failure to plead guilty was made during an argument that the jury should not find the existence of the nonstatutory circumstance that defendant had acknowledged wrongdoing and the prosecutor offered other reasons for not finding this circumstance. While there may be a possibility that the reference could have persuaded one or more jurors not to find the existence of this mitigating circumstance, the weighing process was not compromised. <block_quote> <bold>Am Jur 2d, Appellate Review § 763; Criminal Law § 705; Trial</bold> <bold>§ 577</bold>.</block_quote> <block_quote> <bold>Violation of federal constitutional rule (</bold><bold><italic>Griffin v.</italic></bold> <bold><italic>California</italic></bold><bold>) prohibiting adverse comment by prosecutor or court</bold> <bold>upon accused's failure to testify, as constituting reversible or</bold> <bold>harmless error. 24 ALR3d 1093</bold>.</block_quote> <bold>15. Criminal Law §§ 464 (NCI4th Rev.) — capital sentencing —</bold> <bold>prosecutor's argument — possibility of parole — death as</bold> <bold>deterrent</bold> Any error in a capital sentencing hearing was harmless beyond a reasonable doubt where defendant contended that the prosecutor improperly urged the jury to consider the possibility of parole in its sentencing deliberations in three sections of his argument. The court sustained defendant's objections to the first statement, and the defendant failed to object to the second and third. These arguments focused on the importance of the jury's duty and suggested that the death penalty would specifically deter defendant from committing future crimes, both permissible lines of argument. <bold>Am Jur 2d, Criminal Law § 628; Trial §§ 566, 575, 576</bold>. <block_quote> <bold>Prejudicial effect of statement of prosecutor as to</bold> <bold>possibility of pardon or parole. 16 ALR3d 1137</bold>.</block_quote> <block_quote> <bold>Propriety, under Federal Constitution, of evidence or</bold> <bold>argument concerning deterrent effect of death penalty. 78 ALR</bold> <bold>Fed. 553</bold>.</block_quote><page_number>Page 504</page_number> <bold>16. Criminal Law § 458 (NCI4th Rev.) — capital sentencing —</bold> <bold>prosecutor's argument — characterizations of mitigating</bold> <bold>circumstances</bold> The prosecutor's argument in a capital sentencing hearing was not improper where defendant argued that the prosecutor misrepresented the nature of mitigation by characterizing mitigation as credit for defendant or an excuse for his crime. Prosecutors may legitimately attempt to deprecate or belittle the significance of mitigating circumstances, and the trial court correctly instructed the jury on mitigation. <block_quote> <bold>Am Jur 2d, Criminal Law § 598; Homicide §§ 463, 464; Trial §</bold> <bold>572</bold>.</block_quote> <bold>17. Criminal Law § 444 (NCI4th Rev.) — capital sentencing —</bold> <bold>prosecutor's argument — defendant's character</bold> The prosecutor's arguments about defendant's character in a capital sentencing hearing were not improper; the character of a defendant is an appropriate consideration during sentencing and several of defendant's nonstatutory mitigating circumstances placed his character at issue. <block_quote> <bold>Am Jur 2d, Criminal Law § 598; Homicide §§ 298, 463; Trial §</bold> <bold>682</bold>.</block_quote> <bold>18. Criminal Law § 454 (NCI4th Rev.) — capital sentencing —</bold> <bold>prosecutor's argument — victim a police officer — a martyr</bold> <bold>to the cause of good</bold> The prosecutor's argument in a capital sentencing hearing did not render the trial fundamentally unfair where the defendant contended that the prosecutor's argument that the victim, a police officer, was a martyr to the cause of good was improperly designed to appeal to the jury's sympathy for the victim. <bold>Am Jur 2d, Criminal Law § 291; Trial §§ 572, 649, 666</bold>. <block_quote> <bold>Sympathy to accused as appropriate factor in jury</bold> <bold>consideration. 72 ALR3d 842</bold>.</block_quote> <bold>19. Criminal Law § 449 (NCI4th Rev.) — capital sentencing —</bold> <bold>prosecutor's argument — judgment of prosecutor</bold> The prosecutor in a capital sentencing hearing did not improperly ask the jury to rely on the judgment of the prosecutor.<page_number>Page 505</page_number> <block_quote> <bold>Am Jur 2d, Criminal Law § 291; Homicide § 463; Trial §§ 499,</bold> <bold>572</bold>.</block_quote> <block_quote> <bold>Propriety and prejudicial effect of prosecutor's argument to</bold> <bold>jury indicating his belief or knowledge as to guilt of accused —</bold> <bold>modern state cases. 88 ALR3d 449</bold>.</block_quote> <bold>20. Criminal Law § 467 (NCI4th Rev.) — capital sentencing —</bold> <bold>prosecutor's argument — presumptions from the evidence</bold> Statements by the prosecutor in a capital sentencing hearing which defendant contended were outside the evidence were based on reasonable inferences from the evidence presented and were within the wide latitude allowed to counsel during jury arguments in the sentencing proceeding. <bold>Am Jur 2d, Criminal Law § 940; Homicide § 560</bold>. <block_quote> <bold>Propriety and prejudicial effect of prosecuting attorney's</bold> <bold>arguing new matter or points in his closing summation in criminal</bold> <bold>case. 26 ALR3d 1409</bold>.</block_quote> <bold>21. Criminal Law § 1366 (NCI4th Rev.) — capital sentencing —</bold> <bold>prior robbery convictions — separate aggravating</bold> <bold>circumstances</bold> The trial court did not err in a capital sentencing hearing by submitting each of defendant's four prior robbery convictions as separate aggravating circumstances under N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(3). The State presented distinct evidence that defendant had been convicted for committing one common law robbery and three separate armed robberies. Although defendant argues that the prior robbery convictions should have been submitted under one aggravating circumstance, this would not have altered the evidence in aggravation received and considered by the jury, and weighing aggravators and mitigators is not a process of mathematical computation. <bold>Am Jur 2d, Criminal Law §§ 572, 598, 599; Homicide § 554</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to</bold> <bold>establish statutory aggravating circumstance that defendant was</bold> <bold>previously convicted of or committed other violent offense, had</bold> <bold>history of violent conduct, posed continuing threat to society,</bold> <bold>and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 65 ALR4th 838</bold>.</block_quote><page_number>Page 506</page_number> <bold>22. Criminal Law § 690 (NCI4th Rev.) — capital sentencing —</bold> <bold>nonstatutory mitigating circumstances — peremptory</bold> <bold>instruction different from statutory circumstances</bold> The trial court did not err in a capital sentencing hearing by refusing to give a peremptory instruction for nonstatutory mitigating circumstances that was similar to that for statutory mitigating circumstances. Although defendant argues that there is no constitutionally valid basis for treating nonstatutory mitigating circumstances differently than statutory ones and states that the jury should be required to give some weight to both, the Constitution does not require a State to ascribe any specific weight to particular circumstances. The rule in North Carolina does not prevent the sentencing jury from considering or from giving effect to any mitigating evidence in recommending a sentence. <bold>Am Jur 2d, Criminal Law §§ 598, 599; Trial §§ 841, 1760</bold>. <bold>23. Criminal Law § 1402 (NCI4th Rev.) — death sentence —</bold> <bold>proportionate</bold> A death penalty for a first-degree murder was proportionate where the record supported the five aggravating circumstances found by the jury; the jury's failure to find certain mitigating circumstances was a rational result from the evidence; and there is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration. This case is distinguishable from each of those cases in which the North Carolina Supreme Court has found the death penalty disproportionate. Defendant was convicted under the theory of premeditation and deliberation as well as under the felony murder rule; the finding of premeditation and deliberation indicates a more cold-blooded and calculated crime. The jury's finding of the four prior conviction of a violent felony aggravating circumstances is also significant; none of the cases in which the death sentence was disproportionate have included this aggravating circumstance. This case is more similar to cases in which the death penalty was found proportionate than to those in which the sentence was found disproportionate or those in which juries have consistently returned recommendations of life imprisonment. <bold>Am Jur 2d, Criminal Law § 628; Homicide § 556</bold>.<page_number>Page 507</page_number>

<bold>1. Criminal Law § 115 (NCI4th Rev.) — discovery — psychiatric</bold> <bold>examination of defendant — preparation of written report for</bold> <bold>State</bold> The trial court did not err by ordering defendant's psychiatrist, who had delivered an oral report of his examination of defendant to defense counsel, to prepare a written report of his findings for the State pursuant to N.C.G.S. § <cross_reference>15A-905</cross_reference>(b). There is nothing in the statute that limits the trial court to production of existing written reports, and it would be unacceptable to allow the defense to keep secret critical evidence solely because that evidence was never placed in written form. <bold>Am Jur 2d, Depositions and Discovery §§ 464-466</bold>. <bold>2. Evidence and Witnesses § 2675 (NCI4th) — psychiatric</bold> <bold>examination of defendant — evaluation for trial — not</bold> <bold>privileged</bold> A psychiatrist's report of the results of his examination of defendant was not protected by the psychologist-client privilege of N.C.G.S. § <cross_reference>8-53.3</cross_reference> where the psychiatrist was appointed by the trial court at the request of defense counsel to evaluate defendant's mental status rather than to treat defendant. Moreover, even if the examination results were privileged, the trial court could properly compel their disclosure on the ground that it was necessary to the administration of justice. <bold>Am Jur 2d, Witnesses § 451</bold>. <block_quote> <bold>Validity and construction of statutes providing for</bold> <bold>psychiatric evaluation of accused to determine mental condition.</bold> <bold>32 ALR2d 434</bold>.</block_quote><page_number>Page 536</page_number> <block_quote> <bold>Privilege, in judicial or quasi-judicial proceedings, arising</bold> <bold>from relationship between psychiatrist or psychologist and</bold> <bold>patient. 44 ALR3d 24</bold>.</block_quote> <bold>3. Jury § 153 (NCI4th) — capital trial — jury selection —</bold> <bold>imposition of death penalty — question not improper</bold> The prosecutor's question to each prospective juror in a capital trial, "And after having made that decision, if the people of the State of North Carolina prove to you beyond a reasonable doubt that the death penalty was the appropriate punishment you would vote to impose it?" was not a misstatement of the law and did not violate defendant's due process rights. Any prejudice to defendant from this single question was ameliorated by the trial court's instructions prior to the <italic>voir dire</italic> and prior to the sentencing determination. <bold>Am Jur 2d, Jury §§ 205, 208, 210</bold>. <block_quote> <bold>Propriety and effect of asking prospective jurors</bold> <bold>hypothetical questions, on voir dire, as to how they would decide</bold> <bold>issues of case. 99 ALR2d 7</bold>.</block_quote> <bold>4. Jury § 226 (NCI4th) — capital trial — excusal of veniremen</bold> <bold>for cause — no blanket denial of rehabilitation</bold> The trial court's excusal for cause of eleven prospective jurors without allowing defendant the opportunity to rehabilitate those jurors did not constitute an improper "blanket ruling" against rehabilitation where the trial court personally questioned the eleven jurors at issue, and there is no evidence in the record that the trial court automatically rejected defendant's requests to rehabilitate those jurors. The fact that the trial court disallows all of defendant's requests for rehabilitation does not, in the absence of other evidence, amount to a <italic>de facto</italic>, blanket ruling against all rehabilitation. <bold>Am Jur 2d, Jury §§ 185, 228</bold>. <bold>5. Evidence and Witnesses § 1694 (NCI4th) — photographs of</bold> <bold>murder victims — crime scene and autopsy — not excessive</bold> The trial court did not abuse its discretion in the admission of color photographs of the bodies of two murder victims at the crime scene and during the autopsy where each photograph was different from the others and was used to illustrate an S.B.I. agent's testimony about the crime scene or the medical examiner's<page_number>Page 537</page_number> testimony or to support the medical examiner's opinions about the wounds and the causes of the deaths. <bold>Am Jur 2d, Homicide §§ 417, 418</bold>. <block_quote> <bold>Admissibility of photograph of corpse in prosecution for</bold> <bold>homicide or civil action for causing death. 73 ALR2d 769</bold>.</block_quote> <bold>6. Evidence and Witnesses § 876 (NCI4th) — statement by murder</bold> <bold>victim — hearsay — state of mind exception</bold> A murder victim's statement to a neighbor several hours before the murder that she had to return to her home because she saw defendant coming and her pocketbook was in the house was admissible under the state of mind exception to the hearsay rule where the victim's state of mind regarding her intention not to give defendant the money he wanted was relevant to the issue of defendant's motive for the murder. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(3). <bold>Am Jur 2d, Evidence § 667</bold>. <bold>7. Evidence and Witnesses § 2261 (NCI4th) — S.B.I. agent —</bold> <bold>expert testimony — victim standing and door closed</bold> The trial court did not abuse its discretion in permitting an S.B.I. agent to give expert opinion testimony in a prosecution for two murders that the male victim was standing when first hit with a blunt-force instrument and that the door to the house was closed at the time he was accosted, although the S.B.I. agent was not an expert in blood-spatter evidence, where the witness had extensive training and experience in forensic crime-scene collection and processing; she had a bachelor's degree in criminology and a master's degree in criminal justice; she had testified as a crime-scene specialist in over seventy-five cases; and her opinions were not based solely on blood-spatter evidence but were deduced from a combination of blood spatters, the location of the victim's glasses, the relationship between the body and the door, and the location of wounds on the victim's head. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 702. <bold>Am Jur 2d, Expert and Opinion Evidence §§ 55-59</bold>. <block_quote> <bold>Admissibility, in criminal Prosecution, of expert opinion</bold> <bold>evidence as to "blood splatter" interpretation. 9 ALR5th 369</bold>.</block_quote><page_number>Page 538</page_number> <bold>8. Criminal Law § 103 (NCI4th Rev.) — discovery — statements by</bold> <bold>defendant — substance of planned testimony revealed —</bold> <bold>testimony admissible</bold> Where the prosecutor informed defense counsel pursuant to a discovery request that a witness planned to testify that defendant had called a murder victim a "bitch" and had stated that he "hated" the victim, the trial court did not err by permitting the witness to testify that defendant also stated that he wished the victim was dead since the essence of the witness's testimony was that defendant had a hatred for the victim, and the substance of the planned testimony of the witness was conveyed to defense counsel as required by N.C.G.S. § <cross_reference>15A-903</cross_reference>(a)(2). Moreover, the trial court did not abuse its discretion in failing to exclude the evidence as a sanction for any failure by the State to comply with discovery. <bold>Am Jur 2d, Depositions and Discovery §§ 428, 430, 431</bold>. <block_quote> <bold>Right of accused in state courts to inspection or disclosure</bold> <bold>of evidence in possession of prosecution. 7 ALR3d 8</bold>.</block_quote> <block_quote> <bold>What is accused's "statement" subject to state court criminal</bold> <bold>discovery. 57 ALR4th 827</bold>.</block_quote> <bold>9. Homicide § 706 (NCI4th) — failure to instruct on voluntary</bold> <bold>manslaughter — error cured by verdict</bold> The trial court's failure to instruct on voluntary manslaughter was harmless error where the court properly instructed the jury on first-degree and second-degree murder and the jury returned a verdict of guilty of first-degree murder. <bold>Am Jur 2d, Homicide § 530</bold>. <block_quote> <bold>Modern status of law regarding cure of error, in instruction</bold> <bold>as to one offense, by conviction of higher or lesser offense.</bold> <bold>15 ALR4th 118</bold>.</block_quote> <bold>10. Criminal Law § 1359 (NCI4th Rev.) — capital sentencing —</bold> <bold>pecuniary gain and robbery aggravating circumstances — same</bold> <bold>evidence not used</bold> The record established that robbery and pecuniary gain aggravating circumstances were not supported by precisely the same evidence, and the trial court thus properly submitted both circumstances to the jury in this capital sentencing proceeding<page_number>Page 539</page_number> for two first-degree murders, where the evidence showed that defendant committed the murders in the course of stealing money from the victims and also in the course of stealing the keys to the victims' car; defendant stole the keys in order to use the car as transportation and not to sell the car and convert it into cash; and the theft of money supports the pecuniary gain aggravating circumstance and the theft of the keys supports the robbery aggravating circumstance. <bold>Am Jur 2d, Criminal Law §§ 598-600</bold>. <bold>11. Criminal Law § 451 (NCI4th Rev.) — argument of counsel — no</bold> <bold>injection of personal opinions</bold> The prosecutor did not inject impermissible personal opinions in his argument to the jury in a capital sentencing proceeding by his argument questioning the truth of defendant's claim that the male victim had threatened him with a knife and by his argument that "[w]e would never ask you to convict if we did not believe it was the truth." <bold>Am Jur 2d, Trial § 572</bold>. <block_quote> <bold>Propriety and prejudicial effect of prosecutor's argument to</bold> <bold>jury indicating his belief or knowledge as to guilt of accused —</bold> <bold>modern state cases. 88 ALR3d 449</bold>.</block_quote> <bold>12. Criminal Law § 1371 (NCI4th Rev.) — capital sentencing —</bold> <bold>heinous, atrocious, or cruel aggravating circumstance —</bold> <bold>sufficiency of evidence</bold> The trial court properly submitted the especially heinous, atrocious, or cruel aggravating circumstance to the jury in a capital sentencing proceeding for two first-degree murders where the evidence showed that the victims, two diminutive, peaceful persons in their seventies, were beaten to death in their own home by their 260-pound nephew with a blunt-force object; they experienced extreme pain and suffering; each suffered several defensive wounds; the male victim was struck at least fourteen times, the female victim was struck at least ten or eleven times, and many of the blows came after the victims fell to the floor; and the victims were beaten so severely that their bones were crushed, their skulls were fractured exposing brain tissue, and a finger of the female victim was amputated. <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>.<page_number>Page 540</page_number> <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to</bold> <bold>establish statutory aggravating circumstance that murder was</bold> <bold>heinous, cruel, depraved, or the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases.</bold> <bold>63 ALR4th 478</bold>.</block_quote> <bold>13. Criminal Law § 1384 (NCI4th Rev.) — mitigating circumstance</bold> <bold>— mental or emotional disturbance — peremptory instruction</bold> <bold>— failure of jury to find — no constitutional violation</bold> Failure of the jury in a capital sentencing proceeding to find the mental or emotional disturbance mitigating circumstance when the trial court had given a peremptory instruction on this mitigating circumstance did not violate defendant's rights to due process and a fair trial. Even when all of the evidence supports a finding that a mitigating circumstance exists and a peremptory instruction is given, the jury could properly fail to find the mitigating circumstance if it does not believe the evidence. <bold>Am Jur 2d, Criminal Law §§ 598, 599; Trial § 741</bold>. <bold>14. Criminal Law § 1402 (NCI4th Rev.) — death sentences not</bold> <bold>disproportionate</bold> Sentences of death imposed upon defendant for two first-degree murders were not excessive or disproportionate where the jury convicted defendant under the theory of malice, premeditation, and deliberation; the murders were found by the jury to be especially heinous, atrocious, or cruel; the jury found three additional aggravating circumstances; the victims, two elderly persons, were beaten to death by a thirty-four-year-old family member in their own home in the course of a robbery; the victims suffered numerous defensive wounds and likely experienced great pain before death; defendant did not seek medical help for the victims but fled the state in an attempt to elude law enforcement; and defendant showed no remorse for the victims. <bold>Am Jur 2d, Criminal Law §§ 628, 629</bold>.

<bold>1. Constitutional Law § 344.1 (NCI4th Rev.) — capital murder</bold> <bold>(life sentence) — bench conferences — defendant not present</bold> The trial court did not violate a first-degree murder defendant's state and federal constitutional rights by conducting ten unrecorded bench conferences at which defendant was not personally present where defendant was represented by counsel at each of the conferences. He was in position to observe the context of the conferences and to inquire of his attorneys as to the<page_number>Page 601</page_number> nature and substance of each one. Defendant had a firsthand source as to what transpired and defense counsel had the opportunity and obligation to raise for the record any matter to which defendant took exception. Defendant has failed to demonstrate that the bench conferences implicated his constitutional right to be present or that his presence would have substantially affected his opportunity to defend. <bold>Am Jur 2d, Criminal Law § 916</bold>. <block_quote> <bold>Exclusion or absence of defendant, pending trial of criminal</bold> <bold>case, from courtroom, or from conference between court and</bold> <bold>attorneys, during argument on question of law. 85 ALR2d 1111</bold>.</block_quote> <block_quote> <bold>Right of accused to be present at suppression hearing or at</bold> <bold>other hearing or conference between court and attorneys concerning</bold> <bold>evidentiary questions. 23 ALR4th 955</bold>.</block_quote> <bold>2. Criminal Law § 514 (NCI4th Rev.) — first-degree murder —</bold> <bold>bench conferences — complete record</bold> Unrecorded bench conferences did not violate a first-degree murder defendant's right to a complete recordation of proceedings in a capital case pursuant to N.C.G.S. § <cross_reference>15A-1241</cross_reference>, which requires a complete record of "all statements from the bench." "Statements from the bench" does not include routine bench conferences between the trial court and the attorneys. <bold>Am Jur 2d, Trial §§ 236-239</bold>. <block_quote> <bold>Failure or refusal of state court judge to have record made</bold> <bold>of bench conference with counsel in criminal proceeding.</bold> <bold>31 ALR5th 704</bold>.</block_quote> <bold>3. Criminal Law § 423 (NCI4th Rev.) — first-degree murder —</bold> <bold>prosecutor's opening remarks — scope exceeded — not grossly</bold> <bold>improper</bold> Remarks by a prosecutor in her opening statement in a first-degree murder prosecution exceeded the proper limited scope of an opening statement but were not so grossly improper as to merit a new trial where the prosecutor began with a quote from the Bible, invited jurors to put themselves in the place of the victim and project their fears of violent crime onto the victim, commented on the heroics of the victim, emphasizing that he was outnumbered three to one, asked for sympathy for the victims's<page_number>Page 602</page_number> "beautiful young widow," and continued her emotional pleas to the jury despite repeated admonitions to stick to the evidence. The trial court did not abuse its discretion in controlling the prosecutor's opening statement because it sustained defense counsel's objections, repeatedly admonished the prosecutor in open court, and twice instructed the jury to disregard the prosecutor's statements. The remarks were not so grossly improper as to deprive defendant of a fair trial despite the trial court's rulings and repeated warnings. <bold>Am Jur 2d, Trial §§ 554-556</bold>. <block_quote> <bold>Propriety and prejudicial effect of prosecutor's remarks as</bold> <bold>to victim's age, family circumstances, or the like. 50 ALR3d 8</bold>.</block_quote> <bold>4. Extradition § 26 (NCI4th) — first-degree murder in North</bold> <bold>Carolina — voluntary return to North Carolina — requirement</bold> <bold>of warrant and rights</bold> The trial court in a first-degree murder prosecution did not lack jurisdiction where, after the robbery and murder, defendant went to a hospital in his hometown of Cheraw, South Carolina to receive treatment for his gunshot wound, defendant was questioned while there by police officers, and he eventually signed a waiver of extradition and was transported back to Hamlet by Hamlet police officers. Although defendant contends that the extradition is not effective because the Governor did not issue a warrant and defendant was not informed of his rights, as is statutorily required, the record establishes that defendant was advised of his rights, including the right to issuance and service of a warrant of extradition and that he voluntarily consented to return. N.C.G.S. § <cross_reference>15A-746</cross_reference> governs the procedure for securing the delivery of an accused from North Carolina to a demanding state rather than returning someone accused here to North Carolina. While N.C.G.S. § <cross_reference>15A-742</cross_reference> provides a procedure for the Governor to demand the return of a person charged with a crime, nothing suggests that this is exclusive and precludes the voluntary return of the accused. <bold>Am Jur 2d, Criminal Law §§ 338-341</bold>. <block_quote> <bold>Validity, in state criminal trial, of arrest without warrant</bold> <bold>by identified peace officer outside of jurisdiction, when not in</bold> <bold>fresh pursuit. 34 ALR4th 328</bold>.</block_quote><page_number>Page 603</page_number>

<bold>1. Appeal and Error § 157 (NCI4th) — lesser-included offense —</bold> <bold>failure to request instruction — no assignment of error —</bold> <bold>reviewed only in discretion of court</bold> There was merit to the State's argument that defendant waived his right to raise on appeal the issue of whether the separate charge of DWI boating should have been submitted to the jury as a lesser-included offense of manslaughter where defendant failed to ask the trial court for a lesser-included offense instruction and did not assign the issue as error. Earlier cases implying that a defendant is entitled to assign error to the failure to give instructions on lesser-included offenses when there was no specific prayer for such instructions or objection to instructions given are no longer authoritative. However, the Supreme Court exercised its discretion to review the Court of Appeals decision so that the law will be consistent and clear. <bold>Am Jur 2d, Appellate Review § 614</bold>. <bold>2. Admiralty, Navigation, and Boating § 39 (NCI4th) — DWI</bold> <bold>boating — not a lesser-included offense of involuntary</bold> <bold>manslaughter</bold> DWI boating is not a lesser-included offense of involuntary manslaughter and defendant was not entitled to an instruction on DWI boating when the indictments against him charged only that he feloniously killed the victim. The offense of DWI boating on its face contains an essential element that is not an element of involuntary manslaughter in that it requires a finding of either impairment or a blood-alcohol concentration of .10 or higher. Although factual findings supporting this element could be used to support the culpable-negligence element of involuntary manslaughter, the finding of intoxication is not essential to a conviction of involuntary manslaughter. The jury here could have found culpable negligence on other grounds but did not; that merely creates a factual situation in which the elements of the DWI boating offense and the culpable-negligence element of involuntary manslaughter are in apparent identity but does not alter the definitional approach to the determination of lesser-included offenses followed in this jurisdiction.<page_number>Page 730</page_number> <bold>Am Jur 2d, Trial §§ 1427-1434</bold>. <block_quote> <bold>What constitutes lesser offenses "necessarily included" in</bold> <bold>offense charged, under Rule 31(c) of Federal Rules of Criminal</bold> <bold>Procedure. 11 ALR Fed. 173</bold>.</block_quote> <block_quote> <bold>Propriety of lesser-included-offense charge to jury in</bold> <bold>federal criminal case — general principles. 100 ALR Fed. 481</bold>.</block_quote>