Volume 346 — North Carolina Reports

<bold>1. Evidence and Witnesses § 1220 (NCI4th) — first-degree</bold> <bold>murder — defendant's statement to officers — probable</bold> <bold>cause to arrest — statement admissible</bold> The trial court did not err by not suppressing a first-degree murder defendant's statements in their entirety for lack of probable cause for his arrest and interrogation where the evidence indicated that Woods told a Special Agent when arrested that he had an accomplice; his earlier questions to the Sanford Police Department during a 911 call about what would happen to an accomplice intimated the same and the officers therefore knew that Woods had not acted alone; their suspicions were confirmed when a witness informed an officer that Woods had told her that he and defendant had broken into the victim's home and that defendant had killed the victim; that information was relayed to other investigating officers, who had examined the body at the scene and determined that the victim had been beaten to death with a blunt object; and a detective saw a hammer in defendant's truck that he thought could have been the murder weapon The officers had probable cause to believe defendant had participated in the murder and burglars and therefore to place him under arrest. <bold>Am Jur 2d, Evidence § 752</bold>. <bold>2. Evidence and Witnesses § 1224 (NCI4th) — confession — delay of four</bold> <bold>hours in appearance before a magistrate — confession admissible</bold> The trial court did not err by not suppressing a first-degree murder defendant's statement where he was arrested at 9:50 p.m. and interrogated from 11:00 p.m. until 12:30 p.m.; warrants for his arrest were served between 1:30 and 2:00 a.m.; he was brought before a magistrate at 2:00 a.m.; and defendant contended that his statement should have been suppressed in its entirety because of the delay in taking him before a magistrate. The delay was four hours; a delay of four and one-half hours has been found not unreasonable or prejudicial. More importantly, defendant has failed to show that he would not have made an inculpatory statement absent the delay.<page_number>Page 27</page_number> <bold>Am Jur 2d, Evidence §§ 732, 734</bold>. <block_quote> <bold>Admissibility of confession or other statement made by</bold> <bold>defendant as affected by delay in arraignment — modern</bold> <bold>state cases. 28 ALR4th 1121</bold>.</block_quote> <block_quote> <bold>Construction and application of provision of Omnibus</bold> <bold>Crime Control and Safe Streets Act of 1968, as amended</bold> <bold>(<cross_reference>18 USCS sec. 3501</cross_reference> (c)), that defendant's confession shall</bold> <bold>not be inadmissible in evidence in federal criminal prosecution</bold> <bold>solely because of delay in presentment before magistrate.</bold> <bold>124 ALR Fed. 263</bold>.</block_quote> <bold>3. Searches and Seizures § 87 (NCI4th) — search warrant — blood</bold> <bold>samples from defendant — probable cause</bold> The trial court did not err in a first-degree murder prosecution by failing to suppress blood samples drawn from defendant pursuant to a search warrant where defendant argued that there was no forecast of evidence that defendant's blood either constituted evidence of murder or would assist in identifying the perpetrator, but the affidavit signed by an agent to support the issuance of the warrant contained ample data to support the warrant and the cumulative effect of the information establishes that the blood samples seized from defendant provide evidence of the offense and the identity of the person participating in the crime. <bold>Am Jur 2d, Searches and Seizures §§ 118, 119, 123, 125</bold>. <bold>4. Homicide § 374 (NCI4th) — first-degree murder — sufficiency</bold> <bold>of evidence — acting in concert</bold> The trial court did not err by instructing the jury in a first-degree murder prosecution that it could convict defendant on the basis of malice, premeditation, and deliberation under the theory of acting in concert where the evidence indicated that an accomplice, Woods, initially told defendant a story about being able to break into the victim's trailer without being caught; defendant suggested that they break in and steal something; they drove to the victim's trailer together, pried open window panes to the back door, and entered; and, when the victim discovered them, Woods grabbed her hands and forced her into the bedroom, whereupon defendant delivered the fatal blows. This evidence sufficiently indicates that the two men were acting together pursuant to a common plan. <bold>Am Jur 2d, Homicide § 445</bold>.<page_number>Page 28</page_number> <bold>5. Criminal Law § 473 (NCI4th Rev.) — first-degree murder — prosecutor's</bold> <bold>argument — comment on legal maneuvering</bold> The trial court did not err during a first-degree murder prosecution by overruling defendant's objection to the prosecutor's argument that prosecutors don't normally enter into plea agreements "until all of the defense legal maneuvering is over" where the State had entered into a plea agreement with an accomplice by which he received two life sentences in exchange for his truthful testimony, defense counsel suggested during closing arguments that the accomplice's testimony was tainted because of the plea agreement, and the State argued in response that the defense lawyers had suggested that there was something amiss because the State waited until the eve of trial to enter into this agreement. The prosecutor was merely informing the jury that the timing of the plea agreement was normal and did not affect the veracity of Woods' testimony; there was no suggestion that defense counsel was lying to the jury or of an intention to disparage counsel's credibility. <bold>Am Jur 2d, Trial §§ 497, 499, 566, 683, 684</bold>. <block_quote> <bold>Propriety and effect of attack on opposing counsel during</bold> <bold>trial of a criminal case. 99 ALR2d 508</bold>.</block_quote> <bold>6. Jury § 35 (NCI4th) — first-degree murder — supplemental</bold> <bold>list of jurors three days before trial — no error</bold> The trial court did not err during jury selection in a first-degree murder prosecution where a supplemental list of jurors was prepared three days before trial and defendant's motion that these jurors be discharged because N.C.G.S. § <cross_reference>9-5</cross_reference> requires that prospective jurors be selected for service at least thirty days prior to the session was denied. It is true that N.C.G.S. § <cross_reference>9-5</cross_reference> mandates that jurors be selected at least thirty days in advance of the scheduled session, but N.C.G.S. § <cross_reference>9-11</cross_reference> specifically allows a trial court to summon a special venire of jurors at any time and the thirty-day notice provision in N.C.G.S. § <cross_reference>9-5</cross_reference> therefore did not apply to the trial court's selection of a supplemental jury panel. <bold>Am Jur 2d, Jury §§ 126-130</bold>.<page_number>Page 29</page_number> <bold>7. Jury § 99 (NCI4th) — first-degree murder — jury selection — excusal of</bold> <bold>accepted juror — no additional peremptory challenge</bold> The trial court did not err in a first-degree murder prosecution by failing to award defendant an additional peremptory challenge following the reexamination and excusal for cause of one of the supplemental jurors where the juror was initially passed by both sides before further examination revealed reasons supporting removal for cause N.C.G.S. § <cross_reference>15A-1214</cross_reference> (g) allows the trial court for good cause to examine and excuse a juror already accepted and provides that any replacement juror is subject to examination and challenge, but does not afford additional peremptory challenges. Indeed, the trial court is precluded from authorizing any party to exercise more peremptory challenges than specified by statute. <bold>Am Jur 2d, Jury §§ 234, 235, 238-240</bold>. <bold>8. Jury §§ 203, 206, 215 (NCI4th) — first-degree murder — jurors</bold> <bold>not excused for cause — having read newspaper accounts — related</bold> <bold>to state troopers — belief in capital punishment</bold> The trial court did not abuse its discretion in a first-degree murder prosecution by failing to excuse two jurors for cause where the first admitted to reading about defendant's case in the newspaper, specifically noting the information concerning jury selection because she had been summoned for jury service, the court further discovered that this juror's son was a state trooper and her husband a retired state trooper, and the second juror was challenged based on her unequivocal statement that she believed in the death penalty and favored it as a punishment for first-degree murder. The record reveals that the first juror demonstrated a conscientious resolve to be fair and impartial and indicated that she had formed no opinion about defendant's guilt or innocence, and, while the second juror believed in the death penalty, she clearly stated that she could impose life imprisonment as punishment for first-degree murder and that she could follow the law with respect to the capital sentencing procedure. <bold>Am Jur 2d, Jury §§ 266, 267, 279, 289, 304</bold>. <block_quote> <bold>Comment Note. — Beliefs regarding capital punishment</bold> <bold>as disqualifying juror in capital case — post-</bold><bold><italic>Witherspoon</italic></bold> <bold>cases. 39 ALR3d 550</bold>.</block_quote><page_number>Page 30</page_number> <bold>9. Searches and Seizures § 114 (NCI4th) — first-degree murder — search</bold> <bold>warrant — tires seized from defendant's vehicle — affidavit sufficient</bold> The trial court did not err in a first-degree murder prosecution by not suppressing tires seized from defendant's vehicle where defendant argued that the warrant application lacked sufficient information to support probable cause for issuance of a search warrant. The affidavit accompanying the warrant application avers that police officers found tire tracks in the sand about twenty-five yards below the victim's trailer; plaster impressions of the tracks were taken; and an accomplice indicated that he and defendant drove to the victim's trailer in defendant's truck and parked the truck below the trailer on a sand driveway. These facts and circumstances create a reasonable ground to believe that the proposed search would reveal the presence of the objects sought and that those objects would aid in the apprehension or conviction of the offender. <bold>Am Jur 2d, Searches and Seizures §§ 118-121, 123, 125</bold>. <block_quote> <bold>Propriety of considering hearsay or other incompetent</bold> <bold>evidence in establishing probable cause for issuance of</bold> <bold>search warrant. 10 ALR3d 359</bold>.</block_quote> <bold>10. Evidence and Witnesses §§ 1700, 1704 (NCI4th) — first-degree</bold> <bold>murder — photographs of body at scene — autopsy photographs — admissible</bold> The trial court did not abuse its discretion in a first-degree murder prosecution by permitting the State to introduce five autopsy photographs as well as six photographs of the body as found at the crime scene. The autopsy photographs were used to illustrate the testimony of the medical examiner and demonstrated with clarity the nature and placement of the wounds and supported the State's theory that the cause of the victim's death was repeated blows to the head with a blunt weapon. The crime scene photographs were introduced to illustrate the testimony of officers with respect to the crime scene and the position of the body. <bold>Am Jur 2d, Evidence §§ 960-965</bold>. <block_quote> <bold>Admissibility of photograph of corpse in prosecution</bold> <bold>for homicide or civil action for causing death.</bold> <bold>73 ALR2d 769</bold>.</block_quote><page_number>Page 31</page_number> <bold>11. Evidence and Witnesses § 1209 (NCI4th) — first-degree</bold> <bold>murder — gestures and comments by defendant in jail — admissible</bold> The trial court did not abuse its discretion in a first-degree murder prosecution by permitting a State's witness to testify about gestures and comments defendant made in jail where defendant contended that the testimony was unfairly prejudicial and of no probative value. Defendant's anger toward his visitor and threats to his accomplice constituted self-incriminating actions probative of defendant's awareness of his guilt. <bold>Am Jur 2d, Evidence §§ 327, 328, 333, 763</bold>. <bold>12. Evidence and Witnesses § 2811 (NCI4th) — first-degree</bold> <bold>murder — defendant's girlfriend — State permitted to lead — no abuse of</bold> <bold>discretion</bold> The trial court did not abuse its discretion in a first-degree murder prosecution by permitting the prosecutor to lead a State's witness where the witness had been defendant's girlfriend for five years, did not wish to testify against him and was evasive in response to questions from the State, and the State informed the court that the witness was not cooperating and had refused to talk with prosecutors the day before she was to take the witness stand. <bold>Am Jur 2d, Witnesses § 754</bold>. <bold>13. Criminal Law § 1242 (NCI4th Rev.) — first-degree burglary —</bold> <bold>sentencing — nonstatutory mitigating factors — not found — no abuse</bold> <bold>of discretion</bold> The trial court did not abuse its discretion by sentencing defendant to life imprisonment for first-degree burglary where the presumptive sentence is only fifteen years and defendant had requested that the court find nonstatutory mitigating factors regarding defendant's age, his support system in the community, and his positive employment history. The evidence in support of defendant's proposed nonstatutory mitigating factors all came from interested witnesses and substantially supported the statutory mitigator that defendant was a person of good character or had a good reputation in the community, which the court found. Defendant was sentenced under the Fair Sentencing Act, so that the Structured Sentencing Act and its statutory mitigating factors had no relevance. <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>.<page_number>Page 32</page_number> <bold>14. Evidence and Witnesses § 2047 (NCI4th) — first-degree</bold> <bold>murder — demeanor of witness during interview — testimony</bold> <bold>of detective — admissible</bold> The trial court did not err in a first-degree murder prosecution by allowing a detective to testify about the demeanor of a State's witness, who was also defendant's girlfriend, during interviews with law enforcement officers where he testified that she was uncooperative and reluctant to answer questions the first time he talked with her and more open the second N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 701 permits a lay witness to testify as to opinions or inferences which are rationally based on that witness's perceptions and are helpful to a clear understanding of the testimony or a determination of a fact in issue. <block_quote> <bold>Am Jur 2d, Expert and Opinion Evidence §§ 26, 29-31,</bold> <bold>53, 54</bold>.</block_quote> <bold>15. Evidence and Witnesses § 887 (NCI4th) — first-degree</bold> <bold>murder — tape of 911 call — proof that call made — not hearsay</bold> The trial court did not err in a first-degree murder prosecution by admitting a tape recording and transcript of a 911 call in which an accomplice called the Sanford Police Department and asked hypothetically "if two guys broke in a place, and one guy killed somebody right in there, how much time would that guy get that didn't do the killing?" The tape and transcript were not offered to prove the truth of the matter asserted, but that the 911 call was made. <bold>Am Jur 2d, Evidence §§ 664, 665</bold>. <bold>16. Evidence and Witnesses § 3027 (NCI4th) — first-degree</bold> <bold>murder — accomplice's prior violent conduct — excluded</bold> The trial court did not err in a first-degree murder prosecution by excluding evidence of an accomplice's prior violent conduct based on N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 608 (b), which bars introduction of evidence of specific instances of conduct to attack or support the credibility of a witness, with a limited exception for evidence clearly probative of truthfulness or untruthfulness. Although defendant contends that the evidence was offered to show that it was the accomplice who actually inflicted the fatal blows, the conduct must be sufficiently similar to support a reasonable inference that the same person committed both the earlier<page_number>Page 33</page_number> and the later acts and there is here no commonality between the proffered evidence and the events surrounding this murder. <bold>Am Jur 2d, Witnesses §§ 901-904</bold>. <bold>17. Evidence and Witnesses § 119 (NCI4th) — first-degree</bold> <bold>murder — accomplice's prior misconduct — properly</bold> <bold>excluded</bold> The trial court did not err in a first-degree murder prosecution by excluding evidence of an accomplice's prior violent conduct where the alleged misconduct indicates only that the accomplice had in the past displayed aggression toward other men upon being provoked, not that he mercilessly beat to death an eighty-nine-year-old woman, and in no way exculpates defendant or provides any inconsistency with his guilt. It appears that defendant attempted to introduce the evidence to show conformity with past violent acts, the only purpose specifically prohibited by N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404 (b). <bold>Am Jur 2d, Evidence § 587</bold>. <block_quote> <bold>Admissibility of evidence of commission of similar</bold> <bold>crime by one other than accused. 22 ALR5th 1</bold>.</block_quote> <bold>18. Evidence and Witnesses § 2750.1 (NCI4th) — first-degree</bold> <bold>murder — accomplice's prior violent acts — door not opened</bold> The State did not open the door to evidence of an accomplice's prior violent conduct where a witness testified that she believed the accomplice when the accomplice said that defendant killed the victim, when the accomplice read to the jury a letter he had written to the victim's grandson in which he said he could not have done it, or when the State asked the accomplice if he had ever been convicted of any crimes. The statement of the witness does not raise the issue of the accomplice's prior violent conduct or reflect in any way upon the likelihood that the accomplice rather than defendant committed the murder, the statement in the letter referred not to the physical inability of the accomplice to kill the victim but to emotional ties to the victim and her family, and defendant may not avail himself of N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 609 (a) because he sought to introduce instances of conduct rather than convictions. <block_quote> <bold>Am Jur 2d, Evidence §§ 404, 408, 412-414, 417, 418,</bold> <bold>421</bold>.</block_quote><page_number>Page 34</page_number>

<bold>1. Constitutional Law § 264 (NCI4th) — announcement of ruling —</bold> <bold>absence of defendant and attorney — no violation of right to</bold> <bold>counsel</bold> A superior court judge's announcement in open court of his ruling on the State's request for release of defendant's prison records to the State was not a hearing, and the absence of defendant and his counsel when the announcement was made did not violate defendant's Sixth Amendment right to counsel, where the attorneys for both sides had been heard twice in separate pretrial hearings on this issue. <bold>Am Jur 2d, Criminal Law §§ 743 et; seq., 972 et seq</bold>. <bold>2. Constitutional Law § 343 (NCI4th) — announcement of ruling —</bold> <bold>no right of defendant to be present</bold> A defendant charged with a capital first-degree murder did not have a right under Art I, § 23 of the N.C. Constitution to be present when a superior court judge announced in open court his ruling on the State's request for release of defendant's prison records to the State after pretrial hearings on the issue had been held with defendant and his counsel both present. Assuming <italic>arguendo</italic> that defendant should have been present for this ruling, his absence was harmless error since the judge had already decided the issue and was merely announcing his ruling. <bold>Am Jur 2d, Criminal Law §§ 695, 696, 910 et seq</bold>. <bold>3. Constitutional Law § 161 (NCI4th) — opportunity to be</bold> <bold>heard before final ruling — statement by judge — failure to</bold> <bold>comply — no due process violation</bold> The trial judge did not violate defendant's due process rights by his failure to comply with his statement; that defendant would have an opportunity to be heard prior to any final ruling on disclosure of his prison records to the prosecution where defendant and his attorneys were on notice that the State had subpoenaed the prison records and twice had the opportunity to be heard about the release of those records; they knew that disclosure to<page_number>Page 51</page_number> the State was a possibility; and the trial judge's failure to carry out his commitment was inadvertent and harmless. <bold>Am Jur 2d, Criminal Law §§ 996, 997</bold>. <bold>4. Criminal Law §§ 179, 205 (NCI4th Rev.) — incompetency to</bold> <bold>waive counsel or proceed — appointment of mental health</bold> <bold>expert</bold> If a defendant demonstrates or if matters before the trial court indicate that there is a significant possibility that a defendant is incompetent to waive counsel or to proceed to trial, the trial court must appoint an expert or experts to inquire into defendant's mental health in accord with N.C.G.S. § <cross_reference>15A-1002</cross_reference> (b)(1). <bold>Am Jur 2d, Criminal Law §§ 95 et seq</bold>. <bold>5. Criminal Law §§ 179, 205 (NCI4th Rev.) — waiver of counsel —</bold> <bold>failure to have mental evaluation of defendant</bold> The trial court did not err by allowing defendant to waive counsel and proceed <italic>pro se</italic> in a capital trial without having defendant evaluated by a mental health professional where there was nothing in the record tending to indicate that defendant was incompetent to waive his right to counsel or to proceed <italic>pro se;</italic> defendant was adamant and unequivocal about not wanting a mental health examination and insisted that he would not cooperate with a psychiatrist; and the trial court elicited the required information from defendant which was sufficient for the court to determine that defendant's decision was knowing and voluntary N.C.G.S. § <cross_reference>15A-1242</cross_reference>. <bold>Am Jur 2d, Criminal Law §§ 95 et seq</bold>. <bold>6. Criminal Law § 1346 (NCI4th Rev.) — capital sentencing —</bold> <bold>two aggravating circumstances — failure to instruct not to</bold> <bold>use same evidence — not plain error</bold> The trial court did not commit plain error by failing to instruct the jury in a capital sentencing proceeding that it could not consider the same evidence to find the aggravating circumstances that the murder was committed by a person lawfully incarcerated and that defendant had been previously convicted of a felony involving the use or threat of violence to the person where the evidence showed that defendant had been convicted of shooting into an occupied vehicle and of second-degree murder<page_number>Page 52</page_number> and was serving a life sentence for the second-degree murder when he killed the victim in this case; there was separate and independent evidence to support each of the aggravating circumstances; the aggravating circumstances were not interdependent; and there was no reasonable basis for suspicion that the jury used the evidence of defendant's prior convictions as evidence that he was incarcerated at the time of this killing. <bold>Am Jur 2d, Trial §§ 1441 et seq</bold>. <bold>7. Criminal Law § 692 (NCI4th Rev.) — capital sentencing —</bold> <bold>mitigating circumstances — peremptory instructions not required</bold> The trial court did not err by refusing to give peremptory instructions on the (f)(2) emotional disturbance and the (f)(6) impaired capacity mitigating circumstances in a capital sentencing proceeding where testimony by defendant's psychiatrist tended to show that defendant had a learning disability, attention deficit hyperactivity disorder, and mixed personality disorder, but the existence of these mitigating circumstances was negated by evidence of actions and statements by defendant tending to show that this murder was deliberated and carefully planned and that defendant was fully capable of appreciating the criminality of his conduct N.C.G.S. § <cross_reference>15A-2000</cross_reference> (f)(2), (f)(6). <bold>Am Jur 2d, Trial § 1021</bold>. <bold>8. Criminal Law § 1402 (NCI4th Rev.) — killing of another</bold> <bold>inmate — death penalty not disproportionate</bold> A sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate to the penalty imposed in similar cases where defendant pled guilty to first-degree murder; defendant was serving a life sentence for second-degree murder at the time he committed this murder of another inmate, and the jury found the (e)(1) aggravating circumstance that the murder was committed by a lawfully incarcerated person; and defendant killed the victim because he knew that such action would get him transferred from the Eastern Correction Center to Central Prison where he wanted to be. <bold>Am Jur 2d, Criminal Law § 628</bold>.

<bold>Workers' Compensation § 259 (NCI4th) — temporary total</bold> <bold>disability — permanent partial disability — plaintiff not</bold> <bold>entitled — supporting evidence</bold> The Industrial Commission's determination that plaintiff is not entitled to temporary total disability compensation for a back injury after a certain date and that plaintiff is not entitled to permanent partial disability compensation was supported by the evidence where an investigator testified that she videotaped plaintiff performing various physical activities, and an orthopedic surgeon who examined plaintiff opined that plaintiff could return to regular employment with certain restrictions, testified that plaintiff's responses during the examination caused him to question plaintiff's credibility regarding his statements of pain, and stated that plaintiff did not have any objective findings on which to base a permanent partial disability rating. <bold>Am Jur 2d, Worker's Compensation §§ 381, 382</bold>.<page_number>Page 155</page_number>

1. <bold>Criminal Law § 889 (NCI4th Rev.) — noncapital first-degree</bold> <bold>murder — jury not reaching verdict — additional instructions</bold> There was no error in a noncapital first-degree murder prosecution in the court's instructions to the jury on failure to reach a verdict where defendant contended that a statement by the court was in violation of N.C.G.S. § <cross_reference>15A-1235</cross_reference>, but defendant did not object at trial. Reading the instructions as a whole, the court twice admonished jurors not to compromise their convictions or do violence to their consciences; the substance of the instructions was to ask the jury to continue its deliberations and the instructions were not coercive. Am Jur 2d, Trial §§ 1580, 1581, 1585, 1588. 2. <bold>Criminal Law § 805 (NCI4th Rev.) — noncapital</bold> <bold>first-degree murder — acting in concert — instructions</bold> The trial court did not err in its instructions on acting in concert in a noncapital first-degree murder prosecution where defendants contended that the instructions permitted the jury to convict defendants without determining that each possessed the requisite mens rea to commit premeditated and deliberate murder. Since the crime was committed prior to 29 September 1994, the certification date of State v. Blankenship, <cross_reference>337 N.C. 543</cross_reference>, the application of acting in concert as enunciated in State v. Erlewine, <cross_reference>328 N.C. 626</cross_reference>, and reinstated in State v. Barnes, <cross_reference>345 N.C. 184</cross_reference><page_number>Page 222</page_number> does not violate the constitutional ex post facto prohibitions. Moreover, the instructions comport with the Blankenship mandate in that the portions of the instructions which contain the phrase "or someone acting in concert with defendant" related only to the general intent elements of first-degree murder and Blankenship was inapplicable to general intent crimes. As to the specific intent elements of first-degree murder, the instructions did not permit the jury to convict defendants without determining that each possessed the mens rea to commit first-degree murder. Moreover, the use of the conjunctive in referring to defendants on the specific intent elements of the offense did not constitute error. Am Jur 2d, Trial §§ 1255-1257. 3. <bold>Homicide § 478 (NCI4th) — noncapital first-degree</bold> <bold>murder — instructions — transferred intent</bold> There was no plain error in a noncapital first-degree murder prosecution where defendant contended that the trial court's instructions on transferred intent were erroneous in that they permitted the jury to convict him based on the intent of his codefendant, but, viewed as a whole, the transferred intent instruction did not detract from the instructions on the elements of the crime. Am Jur 2d, Homicide §§ 499, 507. 4. <bold>Criminal Law § 826 (NCI4th Rev.) — noncapital first-degree</bold> <bold>murder — requested instruction — character for peacefulness</bold> <bold>— not given — no prejudice</bold> There was no prejudicial error in a noncapital first-degree murder prosecution where the trial court denied defendant Gillis's proffered instruction on his character for peacefulness. Given the substantial evidence of his participation in the crime, Gillis cannot show that he was prejudiced by the omission of this instruction. Am Jur 2d, Homicide § 503; Trial §§ 1338, 1340, 1341, 1344. 5. <bold>Homicide § 374 (NCI4th) — noncapital first-degree murder</bold> <bold>— acting in concert — sufficiency of evidence —</bold> <bold>defendant not merely present</bold> The trial court did not err in a noncapital first-degree murder prosecution by submitting the case against defendant Gillis to the<page_number>Page 223</page_number> jury even though defendant contended there was no evidence beyond mere presence to support a conviction. The trial testimony tended to show that Gillis was robbed of his necklace by three men in the parking lot of a club; Gillis immediately thereafter conferred with Evans, who had a gun and opened fire on the three men; Gillis and Evans followed the three men to another club; Gillis and Evans drove by the club, with Evans hanging out the window and shooting; according to one witness, Gillis was driving the car; and the victim, a bystander, was shot and killed while running toward the doorway of the club. The evidence was sufficient to support a reasonable inference that Gillis and Evans killed the victim pursuant to a common plan to kill the three men who had robbed Gillis and that Gillis was not merely present at the scene. Am Jur 2d, Homicide §§ 445, 507. 6. <bold>Criminal Law § 325 (NCI4th Rev.) — noncapital</bold> <bold>first-degree murder — multiple defendants — severance</bold> <bold>of trial denied — no error</bold> The trial court did not err in a noncapital first-degree murder prosecution by denying defendant Evans' motion to sever his trial from that of codefendant Gillis. There was no Bruton violation because Gillis took the stand, testified, and was subject to cross-examination. The principles set out in Bruton apply only to the extrajudicial statements has not been deprived of his right to confrontation. Neither was there a violation of due process and N.C.G.S. § <cross_reference>15A-927</cross_reference> because there was plenary evidence, irrespective of Gillis' statements, that Evans was involved in the shooting. Additionally, any error in the admission of these statements was cured by a limiting instruction. Am Jur 2d, Trial §§ 157, 158, 172. <block_quote> Antagonistic defenses as ground for separate trials of codefendants in criminal case. 82 ALR3d 245.</block_quote>

<bold>False Pretenses, Cheats, and Related Offenses § 39 (NCI4th) —</bold> <bold>obtaining property by false pretenses — writing an passing a</bold> <bold>worthless check in exchange for property — sufficient</bold> An unpublished opinion by the Court of Appeals was reversed where that opinion vacated judgments after concluding as a matter of law that a person cannot be prosecuted on an indictment for obtaining property by false pretenses where the indictment alleges nothing more than the defendant's passing of a worthless check in exchange for property. Writing and passing a worthless check in exchange for property, standing alone, is sufficient to uphold a conviction for obtaining property under false pretenses and language in State v. Freeman, <cross_reference>308 N.C. 502</cross_reference>, is disavowed and disapproved to the extent it may tend to indicate that an additional misrepresentation beyond the presentation of a worthless check in exchange for property is required to uphold a conviction for obtaining property by false pretenses in violation of N.C.G.S. § <cross_reference>14-100</cross_reference>. In addition, State v. Freeman, <cross_reference>79 N.C. App. 177</cross_reference> and State v. Hopkins, <cross_reference>70 N.C. App. 530</cross_reference>, are overruled insofar a they require proof of some additional misrepresentation beyond the presentation of a worthless check in such cases. Am Jur 2d, Property § 36.

<bold>1. Evidence and Witnesses § 876 (NCI4th) — statements by murder</bold> <bold>victim — state of mind exception to hearsay rule</bold> Statements by a murder victim to a banker and to her brother expressing her concern about defendant's handling of her real estate transactions and her intent to document defendant's debt to her, to seek repayment, and to confront defendant about her concern that defendant had stolen from her were properly admitted into evidence pursuant to the state of mind exception to the hearsay rule because those statements bore directly on the relationship between the victim and defendant at the time of the killing and were relevant to show a motive for the killing. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(3). <bold>Am Jur 2d, Evidence §§ 658-707</bold>. <block_quote> <bold>Admissibility of statement under Rule 801(d)(2)(B) of Federal</bold> <bold>Rules of Evidence, providing that statement is not hearsay if</bold> <bold>party-opponent has manifested his adoption or belief in its truth.</bold> <bold>48 ALR Fed. 721</bold>.</block_quote> <bold>2. Evidence and Witnesses § 876 (NCI4th) — statements by victim</bold> <bold>— improper admission under state of mind exception —</bold> <bold>absence of prejudice</bold> Assuming arguendo that a murder victim's statement to her brother indicating that she had not been paid for horses that defendant had sold for her and her statement to her mother indicating that she had sent money to defendant to lift restrictions on property which defendant was selling for her were improperly admitted under the state of mind exception to the hearsay rule, defendant was not prejudiced by the admission of this testimony in light of other evidence that defendant's motive for the murder was the victim's insistence that defendant pay money defendant owed her, the accomplice's testimony that defendant planned, directed, and participated in the murder of the victim, and evidence that after the murder defendant took the lead in creating and refining an alibi for the accomplice and herself. <bold>Am Jur 2d, Evidence §§ 679-703</bold>.<page_number>Page 366</page_number> <block_quote> <bold>Admissibility of statement under Rule 801(d)(2)(B) of Federal</bold> <bold>Rules of Evidence, providing that statement is not hearsay if</bold> <bold>party-opponent has manifested his adoption or belief</bold> <bold>in its truth. 48 ALR Fed. 721</bold>.</block_quote> <bold>3. Evidence and Witnesses § 881 (NCI4th) — promissory note —</bold> <bold>not hearsay — relevancy to show motive</bold> A $40,750 promissory note signed by defendant and made payable to a murder victim was not admitted solely to show the truth of the matter asserted but was admitted to show that the victim sought repayment for money defendant owed her and was thus relevant to establish a motive for the killing. <bold>Am Jur 2d, Evidence §§ 301-323</bold>. <bold>4. Evidence and Witnesses § 881 (NCI4th) — financial</bold> <bold>transactions — writings in victim's possession —</bold> <bold>admissibility to show motive</bold> A murder victim's check register books showing checks and wire transfers to defendant, a list made by the victim documenting checks, money orders, and wire transfers to defendant, handwritten calculations corresponding to amounts the victim believed defendant owed her, a spiral notebook containing various notes, and a writing by the victim placing a $40,753 value on cash advances and on land and horses sold by defendant were admissible for the non-hearsay purpose of showing that the victim had followed through on her stated intention to document defendant's debt to her and to establish a motive for the killing. Even if some or all of the victim's writings were inadmissible hearsay, defendant was not prejudiced by any error in admitting them in light of the overwhelming evidence that defendant planned, directed, and participated in the victim's killing. <bold>Am Jur 2d, Evidence § 359</bold>. <bold>5. Evidence and Witnesses § 179 (NCI4th) — cash advances — real</bold> <bold>estate dealings — defendant's tax returns — admissibility to</bold> <bold>show motive</bold> Evidence of a murder victim's cash advances to defendant and the victim's real estate dealings with defendant shed light on their relationship at the time of the victim's death and, in conjunction with the victim's statements suggesting that the victim intended to confront defendant about defendant's debt to her and<page_number>Page 367</page_number> defendant's statement to her boyfriend that the victim actually confronted defendant, was relevant to show that defendant had a motive to kill the victim. Furthermore, evidence of defendant's tax returns tending to show that defendant did not earn enough money to lend the victim $30,000 was relevant to refute defendant's contention that money given to her by the victim was in repayment for loans made by defendant to the victim. The trial court did not abuse its discretion by declining to exclude this evidence under Rule 403 on the ground that any probative value was substantially outweighed by the danger of unfair prejudice. <bold>Am Jur 2d, Evidence §§ 558 et seq</bold>. <bold>6. Evidence and Witnesses § 179 (NCI4th) — life insurance —</bold> <bold>change of beneficiary — motive for killing</bold> Evidence that defendant sold a murder victim two life insurance policies and that both policies were amended to make defendant the primary beneficiary was relevant to show a motive for the killing. Assuming arguendo that the order of a superior court judge requiring the insurance company to pay $300,000 into court pending a determination of the parties' rights should not have been admitted, defendant cannot show that there is a reasonable possibility that, had the order not been admitted, a different outcome would have been reached at trial. <bold>Am Jur 2d, Evidence §§ 558 et seq</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to</bold> <bold>establish statutory aggravating circumstance that murder was</bold> <bold>committed for pecuniary gain, as consideration or in expectation</bold> <bold>of receiving something of monetary value, and the like — post-</bold> <bold><italic>Gregg</italic></bold> <bold>cases. 66 ALR4th 417, sec. 1</bold>.</block_quote> <bold>7. Evidence and Witnesses § 1259 (NCI4th) — exercise of right to</bold> <bold>remain silent — testimony by SBI agent — not plain error</bold> Assuming that an SBI agent's testimony that he did not interview defendant again because he was advised by her boyfriend that she had an attorney and that he should not attempt to interview her again constituted improper evidence of defendant's exercise of her right to remain silent, the admission of this testimony was not plain error since any damage to defendant's credibility caused by the SBI agent's statement was de minimis compared with defendant's own trial testimony in which she<page_number>Page 368</page_number> abandoned her alibi and asserted that she was an innocent bystander while her boyfriend, acting alone, killed the victim. <bold>Am Jur 2d, Criminal Law §§ 788 et seq.; Evidence §§ 748-753</bold>. <bold>8. Evidence and Witnesses § 2942 (NCI4th) — prearrest —</bold> <bold>impeachment of defendant — no denial of federal constitutional</bold> <bold>rights</bold> The use of defendant's prearrest silence to impeach defendant during cross-examination when the prosecutor inquired into defendant's failure to talk with law officers after her interview by an SBI agent a few days after a murder did not violate defendant's federal constitutional rights where defendant was not induced to remain silent prior to her arrest by any government assurances that her silence would not be used against her; defendant did not invoke or rely upon her right to remain silent; and defendant denied any involvement in the crime when she talked with the SBI agent. U.S. Const. amends. V and XIV. <bold>Am Jur 2d, Witnesses § 539</bold>. <bold>9. Evidence and Witnesses § 2942 (NCI4th) — prearrest silence —</bold> <bold>impeachment of defendant — improper under N.C. law — no</bold> <bold>plain error</bold> Assuming arguendo that the prosecutor's questions on cross-examination of defendant inquiring into defendant's failure to talk with law officers after her interview by an SBI agent a few days after a murder constituted an improper use of her prearrest silence for impeachment pursuant to rules of evidence formulated by our jurisdiction, any error in the trial court's failure to limit the prosecutor's questions did not rise to the level of plain error where there was evidence tending to show that defendant made a false statement to the SBI agent, this statement was inconsistent with defendant's trial testimony and was highly damaging to her credibility, and questions about her subsequent failure to speak to law officers did not further damage her credibility. <bold>Am Jur 2d, Witnesses § 539</bold>.<page_number>Page 369</page_number> <bold>10. Evidence and Witnesses § 264 (NCI4th) — character of victim</bold> <bold>— improper testimony — not plain error</bold> Assuming that testimony by a murder victim's mother that the victim was "beautiful," "loving," "very gentle," and "her best friend" was improper character evidence, the admission of this testimony was not plain error where evidence by both the State and the defendant tended to characterize the victim in positive terms. <bold>Am Jur 2d, Evidence §§ 363 et seq</bold>. <block_quote> <bold>Admissibility, in prosecution for maintaining liquor</bold> <bold>nuisance, of evidence of general reputation of premises.</bold> <bold>68 ALR2d 1300</bold>.</block_quote> <bold>11. Evidence and Witnesses § 1688 (NCI4th) — photograph of murder</bold> <bold>victim while alive — adssible for illustrative purposes</bold> A photograph of a murder victim while she was alive was admissible to illustrate her mother's testimony which described the color of her daughter's hair and which was relevant to show that the victim did not fit the description of a woman seen on the day before the murder purchasing oil lamps found in the mother's house where the victim was killed. <bold>Am Jur 2d, Evidence § 1451</bold>. <bold>12. Evidence and Witnesses § 3019 (NCI4th) — prior convictions</bold> <bold>— misleading testimony — opening door — details of crimes</bold> Where defendant gave misleading testimony on direct examination that her two prior fraud convictions resulted from a mere failure to report two insurance premiums, defendant opened the door to the prosecutor's questions about the details of her prior crimes. <bold>Am Jur 2d, Witnesses §§ 905-909</bold>. <bold>13. Evidence and Witnesses § 3027 (NCI4th) — taking money from</bold> <bold>boyfriend — character for untruthfulness — inquiry properly</bold> <bold>allowed</bold> The purpose of the prosecutor's cross-examination of a defendant charged with murder as to whether she had taken money from her former boyfriend by forging his name on both a<page_number>Page 370</page_number> loan application and a check and cashing the check without his permission was to show conduct indicative of defendant's character for untruthfulness, and the trial court did not abuse its discretion under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 608(b) by allowing this inquiry. <bold>Am Jur 2d, Witnesses §§ 901-904, 968, 969</bold>. <bold>14. Evidence and Witnesses § 2786 (NCI4th) — cross-examination —</bold> <bold>assumption of fact not in evidence — absence of prejudice</bold> Even if the trial court erred by permitting the prosecutor to ask the defendant in a murder trial whether she was "aware that [the victim] also went to her attorney . . . and expressed concern that you hadn't paid her" because the question assumed a fact not in evidence, defendant cannot show prejudice by the court's ruling where three witnesses gave testimony suggesting that defendant owed the victim money, that the victim had begun to document that debt, and that the victim intended to seek repayment of the money defendant owed her. <bold>Am Jur 2d,, Witnesses § 750</bold>. <bold>15. Criminal Law § 478 (NCI4th Rev.) — prosecutor's question —</bold> <bold>not attempt to humiliate defendant — legitimate purpose</bold> The trial court could have reasonably concluded that the prosecutor's question to a defendant on trial for murder as to whether she cried more at the crime scene "than you cried today" was not designed to simply badger and humiliate the witness but rather was designed to challenge defendant's testimony on direct examination that she was hysterical and crying at the scene of the crime. <bold>Am Jur 2d, Trial §§ 1562, 1564</bold>. <bold>16. Evidence and Witnesses § 607 (NCI4th) — instances of bad</bold> <bold>character — admissibility for rebuttal — another instance</bold> <bold>not plain error</bold> Testimony by defendant's former boyfriend that defendant changed the beneficiary on his life insurance policy without his knowledge and that defendant took the accrued value of his life insurance policy without his consent, even though ordinarily inadmissible as specific instances of bad character, was properly<page_number>Page 371</page_number> admitted to rebut and discredit defendant's testimony that her actions were taken with the boyfriend's knowledge and consent. Even if further testimony by the boyfriend that defendant moved out of his home because he and defendant had a disagreement over a horse sale and "there was some money missing" did not relate to any of defendant's testimony and was inadmissible for rebuttal or any other purpose, any error in the trial court's failure to exclude this testimony did not amount to plain error where the State presented substantial evidence tending to impeach defendant's credibility, and the former boyfriend testified that defendant subsequently moved back into his home. <bold>Am Jur 2d, Witnesses §§ 837-844, 900, 956</bold>. <bold>17. Criminal Law § 431 (NCI4th Rev.) — closing argument —</bold> <bold>mother's failure to testify — avoidance of perjury — no gross</bold> <bold>impropriety</bold> Any impropriety in the prosecutor's argument to the jury in a murder case suggesting that defendant's mother did not take the stand in order to avoid committing perjury was not so grossly improper as to require the trial court to intervene ex mero motu where the State's evidence suggested that defendant's mother agreed after the murder to support any story that defendant and her accomplice might tell, and the absence of contradictory evidence was the essence of the prosecutor's argument. <bold>Am Jur 2d, Trial §§ 609 et seq</bold>. <bold>18. Criminal Law § 445 (NCI4th Rev.) — closing argument —</bold> <bold>criminal conduct will "cost" witness — no impropriety</bold> The prosecutor's closing argument in a first-degree murder trial that defendant's boyfriend, an accomplice in the murder and a witness for the State, would be found guilty of second-degree murder and that his criminal conduct would "cost him" was supported by the evidence presented at trial and was properly made in response to defense counsel's argument that the boyfriend had not been punished for his role in the crime. <bold>Am Jur 2d, Trial §§ 632-639</bold>. <bold>19. Criminal Law § 436 (NCI4th Rev.) — closing argument — no</bold> <bold>misstatement or misleading statement of evidence</bold> The prosecutor's closing argument in a first-degree murder case that he didn't ask defendant about the number of car keys<page_number>Page 372</page_number> because her answer would be, "May I explain? There were two car keys" did not misstate defendant's testimony or mislead the jury concerning what was in evidence; rather, the purpose of the argument was to show that defendant's testimony that her boyfriend asked her for her car keys while he was driving her car from the crime scene did not make any sense and to question defendant's credibility by noting her manner of answering questions. Therefore, the argument was not so grossly improper as to require the trial court to intervene ex mero motu. <bold>Am Jur 2d, Trial § 611</bold>. <bold>20. Criminal Law § 448 (NCI4th Rev.) — closing argument —</bold> <bold>community sentiment — no impropriety</bold> The prosecutor's closing argument in a first-degree murder case did not improperly urge the jury to "lend its ear" to anticrime sentiment in the community and to convict defendant in order to "do something" about crime but merely referred to community sentiment and urged the jury to render a verdict justified by the evidence. <bold>Am Jur 2d, Trial §§ 644 et seq</bold>. <bold>21. Homicide § 374 (NCI4th) — first-degree murder — acting in</bold> <bold>concert — sufficiency of evidence</bold> The trial court did not err by instructing the jury that it could find defendant guilty of first-degree murder under the theory of acting in concert where the State's evidence tended to show that defendant asked her boyfriend to help her "rough up" the victim, that the boyfriend went to the home of the victim's mother with the intent of helping defendant assault the victim, and that defendant and her boyfriend acted together to beat and stab the victim to death; defendant provided her boyfriend with a wooden baton and knife that the boyfriend used to beat and stab the victim, defendant personally beat the victim, and defendant personally inflicted the stab wounds that caused the victim's death; defendant started a fire after killing the victim, took the lead in concocting and refining an "alibi story," and urged her boyfriend to "stick" to this story, and the boyfriend helped defendant dispose of evidence and made statements to law officers that he and defendant were together at the time of the killing. The evidence was sufficient to show that defendant acted with premeditation and deliberation and to show not only that the victim's murder<page_number>Page 373</page_number> was a natural or probable consequence of the joint purpose of defendant and her boyfriend to commit a crime, but that defendant and her boyfriend acted together pursuant to a joint purpose to murder the victim. <bold>Am Jur 2d, Trial §§ 1077 et seq</bold>. <bold>22. Arson and Other Burnings § 29 (NCI4th); Criminal Law § 805</bold> <bold>(NCI4th Rev.)-second-degree arson — acting in concert —</bold> <bold>sufficiency of evidence</bold> The trial court did not err by instructing the jury that it could find defendant guilty of second-degree arson under the theory of acting in concert where the State's evidence tended to show that defendant and her boyfriend acted together to kill the victim and that the boyfriend was present when defendant poured oil over the victim's body and set it on fire; the boyfriend subsequently drove defendant to defendant's trailer and assisted defendant in disposing of their bloody clothing; defendant and her boyfriend agreed on an alibi; and both initially gave statements to the police denying any involvement in the crime. <bold>Am Jur 2d, Arson and Related Offenses § 55</bold>. <bold>23. Homicide § 583 (NCI4th) — first-degree murder — acting in</bold> <bold>concert — instructions on specific intent</bold> The trial court's instructions on acting in concert in a first-degree murder trial were not erroneous under State v. Barnes, <cross_reference>345 N.C. 184</cross_reference>, <cross_reference>481 S.E.2d 44</cross_reference>, because they included the phrase "either acting by herself or together with another" in the instruction on each of the elements relating to specific intent. Moreover, the instructions also complied with the rule in State v. Blankenship, <cross_reference>337 N.C. 543</cross_reference>, <cross_reference>447 S.E.2d 727</cross_reference>, which was overruled by Barnes, where they made it clear that, in order to convict defendant, defendant herself must have had the requisite specific intent. <bold>Am Jur 2d, Trial §§ 1077 et seq</bold>. <bold>24. Criminal Law § 771 (NCI4th Rev.) — instructions — reasonable</bold> <bold>doubt — insufficient evidence as basis</bold> The trial court's instructions on reasonable doubt sufficiently informed the jury that reasonable doubt could arise out of the insufficiency of the evidence where the instruction informed the jury that a reasonable doubt may arise out of "some or all of<page_number>Page 374</page_number> the evidence that has been presented, or a lack of that evidence, as the case may be" and that a reasonable doubt may be generated by an "insufficiency of the proof." <bold>Am Jur 2d, Trial §§ 1371 et seq</bold>. <bold>25. Criminal Law § 770 (NCI4th Rev.) — instructions — reasonable</bold> <bold>doubt — ingenuity of counsel — what reasonable doubt was</bold> <bold>not</bold> The trial court's instruction that a "reasonable doubt is not a doubt suggested by ingenuity of counsel or by your own ingenuity not legitimately warranted by the testimony" did not preclude the jury from considering ingenuity of counsel legitimately warranted by the testimony. Furthermore, the trial court did not err by instructing the jury as to what reasonable doubt was "not." <bold>Am Jur 2d, Trial §§ 1371 et seq</bold>. <bold>26. Criminal Law § 773 (NCI4th Rev.) — instructions — reasonable</bold> <bold>doubt — use of "moral certainty" and "honest substantial</bold> <bold>misgiving"</bold> The trial court did not use the phrases "moral certainty" and "honest substantial misgiving" in its instructions on reasonable doubt in a manner that unconstitutionally reduced the State's burden of proof. <bold>Am Jur 2d, Trial §§ 1371 et seq</bold>. <bold>27. Criminal Law § 1200 (NCI4th Rev.) — arson — aggravating</bold> <bold>factor — damage causing great monetary loss</bold> The evidence supported the trial court's finding as an aggravating factor for arson that the offense involved property damage causing great monetary loss where the State presented evidence that the house that was burned was a frame, single-story house with two bedrooms, a living room, a kitchen, a den, and a porch; two persons resided in the house; the owner testified that the house had a replacement value of $80,000 and was a "complete loss"; an assistant fire marshal! testified that it took firemen two hours to suppress the flames and that one-third of the house had flames coming through the roof; and the State presented photographs showing the house as it appeared before and after the fire. N.C.G.S. § <cross_reference>15A-1340.16</cross_reference>(d)(14). <bold>Am Jur 2d, Arson and Related Offenses §§ 33, 40-51</bold>.<page_number>Page 375</page_number> <bold>28. Criminal Law § 970 (NCI4th Rev.) — first-degree murder —</bold> <bold>denial of motion for appropriate relief — new witness not</bold> <bold>truthful</bold> The trial court did not abuse its discretion in denying defendant's motion for appropriate relief in a first-degree murder case on the basis of newly discovered evidence where a witness who contacted defendant's attorney after the jury found defendant guilty of murder testified that he was an eyewitness to the murder and that defendant's boyfriend was solely responsible for the victim's killing; the evidence at the hearing supported the trial court's finding that the State's cross-examination of the witness and the testimony of other witnesses "tended to substantially question his character for truthfulness and veracity"; and this finding supported the trial court's conclusions that the testimony of the new witness was not true and that the testimony was not of such a nature as to show that a different result would probably be reached at another trial. <block_quote> <bold>Am Jur 2d, Coram Nobis and Allied Statutory Remedies §§ 44 et</bold> <bold>seq</bold>.</block_quote>

<bold>1. Evidence and Witnesses § 1694 (NCI4th) — capital sentencing</bold> <bold>— photographs of victim at scene — admissible</bold> The trial court did not abuse its discretion in a capital resentencing hearing by admitting into evidence three photographs of the victim's body where the photographs were admitted to illustrate testimony describing the appearance of the victim's body when it was found. <bold>Am Jur 2d, Evidence §§ 327, 963; Homicide §§ 417, 419</bold>. <bold>Admissibility of photograph of corpse in prosecution for</bold><bold>homicide or civil action for causing death. 73 ALR2d 769</bold>. <bold>2. Criminal Law § 1342 (NCI4th Rev.) — capital resentencing —</bold> <bold>four prior unadjudicated sexual assaults — admissible</bold> The trial court did not abuse its discretion during a capital resentencing proceeding by admitting testimony relating to four prior unadjudicated sexual assaults where the evidence was relevant<page_number>Page 405</page_number> to establishing the aggravating circumstance that the murder was committed while defendant was engaged in an attempt to commit rape. The circumstances of the four prior unadjudicated assaults were virtually identical to the circumstances surrounding the attempted rape of the victim here. <bold>Am Jur 2d, Criminal Law § 598; Evidence §§ 408, 421, 450;</bold><bold>Rape § 71</bold>. <bold>Remoteness in time of other similar offenses committed by</bold><bold>accused as affecting admissibility of evidence thereof in</bold><bold>prosecution for sex offense. 88 ALR3d 8</bold>. <bold>Admissibility, in rape case, of evidence that accused raped</bold><bold>or attempted to rape person other than prosecutrix. 2 ALR4th 330</bold>. <bold>3. Criminal Law § 1335 (NCI4th Rev.) — capital resentencing —</bold> <bold>evidence of aggravating circumstance — defendant's offer to</bold> <bold>stipulate — evidence admissible</bold> Evidence of prior sexual assaults was admissible in a capital resentencing in support of the aggravating circumstance that the murder was committed while defendant was engaged in an attempt to commit rape even though defendant offered to stipulate to intent. Defendant's offer to stipulate to intent did not preclude the State from introducing evidence which tended to establish defendant's intent to rape the victim. <bold>Am Jur 2d, Criminal Law §§ 598, 599, 628; Homicide §§ 72,</bold><bold>442</bold>. <bold>Remoteness in time of other similar offenses committed by</bold><bold>accused as affecting admissibility of evidence thereof in</bold><bold>prosecution for sex offense.</bold><bold>88 ALR3d 8</bold>. <bold>Admissibility, in rape case, of evidence that accused raped</bold><bold>or attempted to rape person other than prosecutrix. 2 ALR4th 330</bold>. <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>.<page_number>Page 406</page_number> <bold>4. Criminal Law § 1335 (NCI4th Rev.) — capital resentencing —</bold> <bold>aggravating circumstance — murder committed while engaged in</bold> <bold>other crime — conviction for other crime in guilt phase —</bold> <bold>evidence admissible in sentencing phase</bold> Evidence of defendant's prior sexual misconduct was admissible in a capital resentencing in support of the aggravating circumstance that the murder was committed while defendant was engaged in an attempt to commit rape even though defendant argued that the evidence was inadmissible because he had been found guilty of attempted rape. The evidence presented during the guilt-innocence phase of defendant's first trial was not before this resentencing jury and the State was required to resubmit the evidence from the original trial to have it considered. Furthermore, the State was entitled to present additional competent evidence that tended to show that defendant attempted to rape the victim. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(a)(3). <bold>Am Jur 2d, Criminal Law § 527; Evidence §§ 328, 421; Rape §§</bold><bold>73, 75</bold>. <bold>Remoteness in time of other similar offenses committed by</bold><bold>accused as affecting admissibility of evidence thereof in</bold><bold>prosecution for sex offense. 88 ALR3d 8</bold>. <bold>Admissibility, in rape case, of evidence that accused raped</bold><bold>or attempted to rape person other than prosecutrix. 2 ALR4th 330</bold>. <bold>5. Criminal Law § 1336 (NCI4th Rev.) — capital resentencing —</bold> <bold>physical evidence — admission not prejudicial</bold> There was no prejudice in a capital resentencing hearing in the admission of a pocketknife, a fillet knife, and a pair of scissors where the evidence at trial tended to show that the victim suffered a cut in her neck which officers initially believed was the cause of death and that the items were seized the next day from defendant's residence and the car he had been driving. Assuming error, the evidence tended to show that defendant shot the victim and caused her death and forensic evidence linked cartridges from the scene to defendant's handgun. Defendant cannot show a reasonable possibility that a different outcome would have been reached had the knives and scissors not been admitted. N.C.G.S. § <cross_reference>15A-1443</cross_reference>(a). <bold>Am Jur 2d, Appellate Review §§ 713, 753; Criminal Law § 598;</bold><bold>Homicide §§ 273, 554</bold>.<page_number>Page 407</page_number> <bold>Prejudicial effect of prosecuting attorney's misconduct in</bold><bold>physically exhibiting to jury objects or items not introduced as</bold><bold>evidence. 46 ALR2 1423</bold>. <bold>6. Criminal Law § 1345 (NCI4th Rev.) — capital resentencing —</bold> <bold>instructions — necessity for jury to keep open mind</bold> There was no error in a capital resentencing hearing where the trial court instructed the jury that it must not have any preconceived ideas as to whether defendant should receive life or death and that a juror's mind must not be closed on either of those propositions. The court's statement properly informed the jury that it should not decide the case until after it had heard the evidence presented at trial and the court did not state that a juror's feelings about a life sentence or the death penalty, standing alone, could render the juror unqualified to serve. <bold>Am Jur 2d, Trial §§ 1120-1175</bold>. <bold>7. Criminal Law § 372 (NCI4th Rev.) — capital resentencing —</bold> <bold>judge's comment — role of jury</bold> There was no error in a capital resentencing hearing entitling defendant to a new sentencing hearing where, out of the presence of the jury and after granting defendant's pretrial motion to preclude the district attorney and any witness from mentioning that defendant had been previously sentenced to death, the court expressed its opinion that juries should not be permitted to sentence capital defendants. The court did not express any opinion on the merits of the case, did not make any comment expressing contempt for defendant or defendant's counsel, and the comments were not in the presence of the jury. <bold>Am Jur 2d, Criminal Law §§ 295, 483, 919; Judges § 170; New</bold><bold>Trial § 150; Trial §§ 284, 288, 289</bold>. <bold>Indoctrination by court of persons summoned for jury service</bold><bold>as prejudicial error. 89 ALR2d 197</bold>. <bold>Pretrial comments indicating fixed view as to proper</bold><bold>punishment for particular type of crime as basis for judge's</bold><bold>disqualification under <cross_reference>28 USCS § 144</cross_reference>. 29 ALR Fed. 588</bold>.<page_number>Page 408</page_number> <bold>8. Criminal Law § 402 (NCI4th Rev.) — capital resentencing —</bold> <bold>court's introductory comments to prospective jurors —</bold> <bold>Simpson trial</bold> There was no error in a capital resentencing proceeding where the court told prospective jurors that the O.J. Simpson murder trial was not the way court should be run, that the media would not be in the courtroom because that was how Judge Ito "lost his hammer," and that capital sentencing required a lot of study and ought not to be assigned to laymen. The court's opinions with respect to how the Simpson trial was conducted and whether lay juries should make the capital sentencing decision were extraneous but were made in the context of admonishing the jury that both the State and defendant were entitled to a fair trial and of charging the jury not to read, watch, or listen to any media accounts relating to the case. Nothing in the court's comments constituted an expression of opinion on any fact to be decided by the jury in the present case and did not denigrate defendant or defendant's trial counsel. <bold>Am Jur 2d, Criminal Law §§ 295, 483, 919; Judges § 170; New</bold><bold>Trial § 150; Trial §§ 284, 288, 289</bold>. <bold>Indoctrination by court of persons summoned for jury service</bold><bold>as prejudicial error. 89 ALR2d 197</bold>. <bold>Pretrial comments indicating fixed view as to proper</bold><bold>punishment for particular type of crime as basis for judge's</bold><bold>disqualification under <cross_reference>28 USCS § 144</cross_reference>. 29 ALR Fed. 588</bold>. <bold>9. Criminal Law § 402 (NCI4th Rev.) — capital resentencing —</bold> <bold>court's introductory comments to jurors</bold> There was no error in a capital resentencing proceeding where the court, in comments after swearing in the venire members, stated that jurors did not know much about the court system, that jurors did not know much about the trial court specifically or their elected officials in general, that the Oklahoma bombing was a terrible thing, that "[s]omething is bad wrong and it's us," and gave a lengthy discourse expressing its disdain for the use of the term "African-American." These comments did not include an opinion on any fact to be decided by the jury and did not disparage defendant or defendant's counsel. <bold>Am Jur 2d, Criminal Law §§ 295, 483, 919; Judges § 170; New</bold><bold>Trial § 150; Trial §§ 284, 288, 289</bold>.<page_number>Page 409</page_number> <bold>Indoctrination by court of persons summoned for jury service</bold><bold>as prejudicial error. 89 ALR2d 197</bold>. <bold>Pretrial comments indicating fixed view as to proper</bold><bold>punishment for particular type of crime as basis for judge's</bold><bold>disqualification under <cross_reference>28 USCS § 144</cross_reference>. 29 ALR Fed. 588</bold>. <bold>10. Jury § 146 (NCI4th) — capital sentencing — court's statement</bold> <bold>to venire — not an expression of opinion</bold> There was no error in a capital sentencing proceeding where the court made a statement to the venire which defendant contended expressed the court's disdain for a life sentence but which was part of a more lengthy discourse apparently in response to a prospective juror having attempted to speak with a court reporter during the lunch recess. The import of the entire statement was to assure jurors that all of the information they needed would be given to them in the courtroom and to inform them of their responsibility; the court did not express a disdain for a life sentence. <bold>Am Jur 2d, Trial § 1633</bold>. <bold>Pretrial comments indicating fixed view as to proper</bold><bold>punishment for particular type of crime as basis for judge's</bold><bold>disqualification under <cross_reference>28 USCS § 144</cross_reference>. 29 ALR Fed. 588</bold>. <bold>11. Evidence and Witnesses § 125 (NCI4th) — capital resentencing</bold> <bold>— sexual behavior of victim — not admissible</bold> In a capital resentencing for a first-degree murder where defendant had also been convicted of rape, the trial court did not err by excluding evidence that the victim had engaged in sexual intercourse with a third party on the night of the killing. The evidence did not relate to any aspect of defendant's character, his record, or any other circumstance which a jury could deem to have mitigating value. There was no evidence that defendant was aware that the victim had engaged in sexual intercourse on the night in question and, even considering defendant's limited intellectual capacity, the evidence did not shed any light on whether defendant believed that the victim had consented to having sexual intercourse with him or on his capacity to appreciate the criminality of his conduct. <bold>Am Jur 2d, Criminal Law §§ 598, 599; Evidence § 504; Rape §</bold><bold>86</bold>.<page_number>Page 410</page_number> <bold>Constitutionality of rape shield statute restricting use of</bold><bold>evidence of victim's sexual experiences. 1 ALR4th 283</bold>. <bold>12. Criminal Law § 690 (NCI4th) — capital resentencing —</bold> <bold>mitigating circumstances — directed verdict — peremptory</bold> <bold>instruction — not given</bold> The trial court did not err in a capital resentencing by refusing to grant defendant's motions for a directed verdict on three statutory mitigating circumstances. A peremptory instruction rather than a directed verdict is the appropriate device for submitting to the jury uncontradicted evidence supporting a mitigating circumstance, but even where all of the evidence supports finding a mitigating circumstance and a peremptory instruction is given, the jury may reject the evidence and not find that fact if it does not believe the evidence. Although there was an exception in <italic>State v. Flippen</italic>, <cross_reference>344 N.C. 689</cross_reference>, entitling a defendant to a mandatory peremptory instruction where the State and defendant had stipulated to a mitigating circumstance, the mitigating circumstances at issue here were not established by stipulation. <bold>Am Jur 2d, Trial §§ 841, 865, 1883</bold>. <bold>Propriety and prejudicial effect of counsel's argument or</bold><bold>comment as to trial judge's refusal to direct verdict against him.</bold><bold>10 ALR 3d 1330</bold>. <bold>13. Jury § 99 (NCI4th) — capital resentencing — reopening voir</bold> <bold>dire — peremptory challenge — no error</bold> The trial court did not abuse its discretion in a capital resentencing hearing by reopening <italic>voir dire</italic> after the jury was impaneled and permitting the State to exercise a peremptory challenge where the prosecutor informed the court after the close of all the evidence that he had learned from "an officer of the court" that a juror had in the last few years presented an argument against the death penalty; the juror was brought into the courtroom for questioning and stated that she currently believed that some people should receive the death penalty, that she had never stated that the death penalty was not being fairly administered or that the death penalty should not be imposed, and that her responses on <italic>voir dire</italic> were correct; and the trial court declined to excuse the juror for cause but the prosecutor exercised one of his remaining<page_number>Page 411</page_number> peremptory challenges. The information provided by the prosecutor established good reason to reopen <italic>voir dire</italic> to inquire into whether the juror made the statements attributed to her, whether she continued to hold these beliefs and whether her beliefs would prevent or substantially impair the performance of her duties as a juror. <bold>Am Jur 2d, Jury § 243</bold>. <bold>Comment note on beliefs regarding capital punishment as</bold><bold>disqualifying juror in capital case — post-</bold><bold><italic>Witherspoon</italic></bold> <bold>cases.</bold><bold>39 ALR3d 550</bold>. <bold>14. Criminal Law § 461 (NCI4th Rev.) — capital resentencing —</bold> <bold>prosecutor's argument — comfortable life in prison</bold> The trial court did not err in a capital resentencing by allowing the prosecutor to comment, over defendant's objection, on the quality of life defendant would have in prison where a prison guard had testified that defendant was permitted to watch television, play cards, lift weights, play basketball, go to the music room, and eat lunch with other inmates. It was reasonable to infer that defendant would continue to enjoy these privileges if sentenced to life imprisonment. <bold>Am Jur 2d, Criminal Law §§ 291, 917; Homicide §§ 463, 464;</bold><bold>Trial §§ 496, 582</bold>. <bold>15. Criminal Law § 460 (NCI4th Rev.) — capital resentencing —</bold> <bold>prosecutor's argument — mitigating circumstances — no error</bold> The trial court did not err in a capital resentencing hearing by overruling defendant's objection to an argument which defendant contended improperly told jurors that circumstances not sufficient to excuse the killing or to reduce it to a lesser included offense did not have mitigating value. The prosecutor did not state that mitigating circumstances were limited to facts which would justify the killing or to facts which would be sufficient to reduce the crime to a lesser included offense of murder, the argument that the victim did not provoke the killing was supported by the evidence, and the prosecutor was entitled to argue that no mitigating circumstances existed. <bold>Am Jur 2d, Criminal Law § 917; Homicide §§ 463, 464; Trial §§</bold><bold>496, 568</bold>.<page_number>Page 412</page_number> <bold>16. Criminal Law § 440 (NCI4th Rev.) — capital resentencing —</bold> <bold>prosecutor's argument — prior rapes by defendant</bold> There was no gross error requiring the trial court to intervene <italic>ex mero motu</italic> in a capital resentencing where defendant contended that the prosecutor made improper use of defendant's prior unadjudicated sexual assaults where the prosecutor briefly mentioned testimony relating to the prior assaults, commented that it is unfortunate that all rapes are not reported, reminded the jury that defendant had been convicted of attempted rape and noted that this conviction was possible only because the victim had reported defendant's actions to the police, and argued that defendant had learned a lesson and decided to kill his next victim to prevent her from testifying against him. The prosecutor's argument was supported by the evidence presented in the sentencing proceeding. <bold>Am Jur 2d, Criminal Law § 917; Evidence § 421; Homicide §§</bold><bold>463, 464; Trial § 496</bold>. <bold>Remoteness in time of other similar offenses committed by</bold><bold>accused as affecting admissibility of evidence thereof in</bold><bold>prosecution for sex offense. 88 ALR3d 8</bold>. <bold>Admissibility, in rape case, of evidence that accused raped</bold><bold>or attempted to rape person other than prosecutrix. 2 ALR4th 330</bold>. <bold>17. Criminal Law § 460 (NCI4th Rev.) — capital resentencing —</bold> <bold>prosecutor's argument — prior unadjudicated rapes</bold> There was no gross error requiring intervention <italic>ex mero motu</italic> in a capital resentencing where the prosecutor related the facts of four prior unadjudicated sexual assaults after telling the jury "We have to prove his intent at the time he killed [the victim] was to commit rape . . . ." The prosecutor was entitled to argue that these facts supported the conclusion that defendant intended to rape the victim and that the jury should find the aggravating circumstance that the murder was committed while in the attempt to commit a rape, and the argument was consistent with the limiting instruction given by the trial court. <bold>Am Jur 2d, Criminal Law § 917; Evidence § 421; Homicide §§</bold><bold>463, 464; Trial § 496</bold>.<page_number>Page 413</page_number> <bold>Remoteness in time of other similar offenses committed by</bold><bold>accused as affecting admissibility of evidence thereof in</bold><bold>prosecution for sex offense. 88 ALR3d 8</bold>. <bold>Admissibility, in rape case, of evidence that accused raped</bold><bold>or attempted to rape person other than prosecutrix. 2 ALR4th 330</bold>. <bold>18. Criminal Law § 460 (NCI4th Rev.) — capital resentencing —</bold> <bold>prosecutor's argument — prior sexual assaults</bold> The trial court was not required to intervene <italic>ex mero motu</italic> in a capital resentencing hearing where the prosecutor argued that defendant being good to the elderly did not allow him to do what he had done to "all these" women. In context, the prosecutor was arguing that the mitigating circumstances did not have great weight, did not outweigh the aggravating circumstances, and that the jury should recommend death. <bold>Am Jur 2d, Criminal Law §§ 598, 599, 917; Homicide §§ 463,</bold><bold>464; Trial § 496</bold>. <bold>19. Criminal Law § 473 (NCI4th Rev.) — capital resentencing —</bold> <bold>prosecutor's argument — life not sacred to defense attorneys</bold> There was no gross impropriety requiring intervention <italic>ex mero</italic> <italic>motu</italic> in a capital resentencing where the prosecutor argued that life was not sacred to defendant and his attorneys. The argument was improper but not abusive, vituperative, or opprobrious, and the prosecutor did not repeatedly attempt to diminish defense counsel before the jury. The prosecutor also stated that defendant had two fine attorneys who had done an excellent job; a careful review of the argument permits the inference that the improper reference to defense counsel was not intended. <bold>Am Jur 2d, Appellate Review § 713; Criminal Law § 917;</bold><bold>Homicide §§ 463, 464; Trial § 496</bold>. <bold>20. Criminal Law § 460 (NCI4th Rev.) — capital resentencing —</bold> <bold>prosecutor's argument — Biblical passage</bold> The trial court did not abuse its discretion by not intervening <italic>ex mero motu</italic> in a capital resentencing where the prosecutor argued that the Biblical injunction prohibited murder and quoted the New Testament in what defendant contends was an argument that Jesus would have hung a millstone around defendant's neck<page_number>Page 414</page_number> and drowned him in the depths of the sea for harming this victim. This argument did not suggest that the law enforcement powers of the state are divinely inspired or ordained and did not suggest that the death penalty is divinely required. The prosecutor anticipated that defense counsel would refer to the Bible in arguing against a death penalty recommendation and attempted to counter any such attempt. <bold>Am Jur 2d, Appellate Review § 713; Criminal law § 917;</bold><bold>Homicide §§ 463, 464; Trial 572</bold>. <bold>Prosecutor's appeal in criminal case to racial, national, or</bold><bold>religious prejudice as ground for mistrial, new trial, reversal,</bold><bold>or vacation of sentence — modern cases. 70 ALR4th 664</bold>. <bold>21. Criminal Law § 1364 (NCI4th Rev.) — capital resentencing —</bold> <bold>instructions — previous felony involving violence — no</bold> <bold>plain error</bold> There was no plain error in a capital resentencing proceeding where the court omitted "or threat" from its instruction on the aggravating circumstance of a previous felony involving violence or the threat of violence where defendant had a prior conviction for attempted second-degree rape. Although it has been held that such a conviction requires submission of this circumstance, it has not been held that attempted second-degree rape is always a crime involving the use of violence. There was error because the State did not present any evidence in support of the circumstance other than the judgment and commitment, but attempted second degree rape standing alone is sufficient to establish the existence of the circumstance and the error did not reduce the State's burden of proof or favor the State in any way and there is no reasonable probability that the jury would have reached a different result had the words "or threat" been included in the instruction. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(3). <bold>Am Jur 2d, Criminal Law § 918; Homicide § 553</bold>. <bold>22. Criminal Law § 1378 (NCI4th Rev.) — capital resentencing —</bold> <bold>mitigating circumstances — peremptory instructions —</bold> <bold>credible and convincing</bold> There was no error in a capital resentencing where the defendant contended that the trial court's peremptory instructions on the mitigating circumstances of emotional disturbance<page_number>Page 415</page_number> and impaired capacity heightened his burden of proof by requiring the jury to find the uncontradicted evidence to be credible and convincing. In the context of the entire charge, the jury would have applied the credible and convincing requirement to mean that it must believe the evidence to find that the mitigating circumstances existed and that it could reject the circumstances if it did not find the evidence to be credible and convincing. Although not a model of clarity, the court's instructions did not place a more stringent burden of proof on defendant. <bold>Am Jur 2d, Criminal Law §§ 598, 599; Homicide §§ 115, 516;</bold><bold>Trial § 841</bold>. <bold>Mental or emotional condition as diminishing responsibility</bold><bold>for crime. 22 ALR3d 1228</bold>. <bold>23. Constitutional Law § 370 (NCI4th) — death sentence —</bold> <bold>defendant mentally retarded — organic brain damage</bold> There was no state or federal constitutional violation in sentencing to death a mentally retarded defendant with organic brain damage where defendant was permitted to present evidence of his mental retardation and organic brain damage and the trial court submitted nonstatutory mitigating circumstances permitting the jury to consider whether defendant was retarded, whether he was suffering from organic brain damage, and whether either of these circumstances had mitigating value. <bold>Am Jur 2d, Criminal Law §§ 40, 628</bold>. <bold>Mental or emotional condition as diminishing responsibility</bold><bold>for crime. 22 ALR3d 1228</bold>. <bold>Adequacy of defense counsel's representation of criminal</bold><bold>client regarding incompetency, insanity, and related issues.</bold><bold>17 ALR4th 575</bold>. <bold>24. Criminal Law § 1402 (NCI4th Rev.) — death sentence —</bold> <bold>proportionate</bold> A sentence of death was proportionate where the evidence supported the aggravating circumstances, the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, and this case was not substantially similar to any of the cases in which death was found disproportionate. A death sentence has never been found disproportionate in a first-degree murder case where the victim was sexually assaulted or where<page_number>Page 416</page_number> the murder was committed for the purpose of eliminating a witness. The evidence here strongly tended to show that defendant coldly and callously planned to rape and kill the victim and that he killed her to prevent her from testifying against him. <bold>Am Jur 2d, Criminal Law §§ 527, 628; Homicide §§ 46, 464,</bold><bold>555, 556; Trial §§ 572, 841, 1760</bold>. <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 enforcement of law,</bold><bold>and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 64 ALR4th 755</bold>. <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>.

<bold>1. Indigent Persons § 19 (NCI4th) — child abuse and murder —</bold> <bold>funds for defense psychiatrist — denied — no error</bold> The trial court did not abuse its discretion in a capital prosecution for murder by torture, felony murder, and felonious child abuse which resulted in a life sentence by denying defendant's motion for funds for a psychiatrist. Indigent defendants are entitled to psychiatric experts upon a threshold showing that sanity is likely to be a significant factor in their defense. Defendant testified that he was twenty-two years old; that he had been placed in a program for the socially and emotionally disturbed in the seventh grade and remained in this program until the tenth grade; that he saw a psychiatrist during those years and had trouble with juvenile court which involved assaults and drinking; that his psychologist had told him that he had an anger control problem; that he had been placed in a juvenile facility where he had been required to see a psychologist; he was diagnosed at Dorothea Dix as suffering from polysubstance dependence and a personality disorder; the report from Dix stated that defendant did not suffer from "a severe mental disease or defect which would prevent him from understanding the difference between right and wrong at the time of the alleged offense; he was cooperative, his thought processes were logical, he did not appear to be delusional, and his intellectual functioning appeared to be "fair to impaired"; he reported occasional hallucinations and suicidal thoughts during his stay at the hospital; he was on psychotropic medications; and it was recommended that he continue to receive those medications while awaiting trial. The evidence presented by this defendant does not approach the showing found sufficient in <italic>Ake v. Oklahoma</italic>, <cross_reference>470 U.S. 68</cross_reference>, or <italic>State v. Gambrell</italic>, <cross_reference>318 N.C. 249</cross_reference>. <bold>Am Jur 2d, Criminal Law §§ 771, 985, 1006</bold>. <bold>2. Indigent Persons § 21 (NCI4th) — child abuse and murder —</bold> <bold>funds for defense pathologist — denied</bold> There was no abuse of discretion in a prosecution for murder by torture, felony murder, and felonious child abuse in the denial of defendant's motion for funds to retain a pathologist where<page_number>Page 472</page_number> defendant's pretrial statements that the victim had been attacked by the family dog and assaulted by other children in the neighborhood and that she bruised easily were overwhelmingly refuted by the evidence presented by the State. Defendant presented nothing more than an undeveloped assertion that the assistance of a pathologist would be beneficial to the preparation of his defense. <bold>Am Jur 2d, Criminal Law §§ 771, 985, 1006</bold>. <bold>3. Indigent Persons § 21 (NCI4th) — child abuse and murder —</bold> <bold>funds for child abuse expert — denied</bold> There was no abuse of discretion in a prosecution for murder by torture, felony murder, and felonious child abuse where the trial court denied defendant's request for funds for a medical expert in child abuse, determining that defendant had failed to make a particularized showing that he would be deprived of a fair trial without the assistance of a medical expert. All of the evidence suggested that the victim's injuries had been incurred as the result of child abuse and defendant did not present the court with anything other than speculation that an expert witness might testify that the victim had not been the victim of child abuse. <bold>Am Jur 2d, Criminal Law §§ 771, 985, 1006</bold>. <bold>4. Evidence and Witnesses § 1268 (NCI4th) — child abuse and</bold> <bold>murder — defendant's statement — prior reading of rights</bold> The trial court did not err in a prosecution for murder by torture, felony murder and felonious child abuse by denying defendant's motion to suppress his statement to an SBI agent where defendant had twice been advised of his rights and the agent did not readvise him. A detective and another SBI agent who had spoken with defendant earlier had fully and properly advised defendant of his rights and defendant waived his rights before giving statements to them; defendant was advised of his rights the second time five hours before this statement was taken; all three officers interviewed defendant with respect to the same subject matter; all three testified that defendant understood what they were saying and that he appeared to be alert and not under the influence of any substance; and nothing suggests that anything occurred to dilute the efficacy of the prior warnings or that defendant forgot his rights.<page_number>Page 473</page_number> <bold>Am Jur 2d, Criminal Law §§ 794, 797, 974; Evidence § 749;</bold><bold>Homicide § 338</bold>. <bold>What constitutes assertions of right to counsel following</bold><bold>Miranda warnings. 80 ALR Fed. 622</bold>. <bold>5. Evidence and Witnesses § 1694 (NCI4th) — child abuse and</bold> <bold>murder — photos of victim admissible</bold> There was no abuse of discretion in a prosecution for murder by torture, felonious child abuse, and felony murder in the admission of 26 photographs of the victim given the number, nature, and extent of the victim's injuries where each photograph illustrated testimony presented by the State and the testimony relating to the victim's injuries was unquestionably relevant. <bold>Am Jur 2d, Evidence §§ 327, 963, 970; Homicide §§ 417-419;</bold><bold>Trial § 507</bold>. <bold>Admissibility of photograph of corpse in prosecution for</bold><bold>homicide or civil action for causing death. 73 ALR2d 769</bold>. <bold>6. Evidence and Witnesses § 1679 (NCI4th) — child abuse and</bold> <bold>murder — photo of defendant — appearance on day of arrest</bold> <bold>— admissible</bold> There was no error in a prosecution for murder by torture, felonious child abuse, and felony murder in the introduction of a photograph of defendant taken on the day of his arrest which shows tattoos and long hair. The photograph was not inflammatory and, even assuming error, there was no reasonable possibility of a different result had the photograph been excluded. <bold>Am Jur 2d, Evidence §§ 630, 963, 973; Trial § 507</bold>. <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>. <bold>7. Criminal Law § 535 (NCI4th Rev.) — child abuse and murder —</bold> <bold>defendant's statement — copy provided to jury — detective's</bold> <bold>collateral notation — mistrial denied</bold> There was no abuse of discretion in a prosecution for murder by torture, felonious child abuse, and felony murder in not declaring<page_number>Page 474</page_number> a mistrial where copies of defendant's pretrial statement containing a detective's collateral notation that there were no bruises on defendant's girlfriend's kid were provided to the jury. The prosecutor discovered the notation, brought it to the attention of the court, the copies were retrieved, a <italic>voir dire</italic> revealed that three jurors had seen the notation, the court denied defendant's motion for a mistrial, and the court instructed the jury to disregard the content of the page containing the notation. Evidence at trial showed that the girlfriend abused the victim and any suggestion that she did not abuse her children is unlikely to have prejudiced defendant. The court's instruction was sufficient to cure any prejudice which defendant may have suffered. <bold>Am Jur 2d, Appellate Review §§ 716, 724, 753; Criminal Law §</bold><bold>974</bold>. <bold>8. Evidence and Witnesses §§ 351, 337 (NCI4th) — child abuse and</bold> <bold>murder — mistreatment of another child — relevant</bold> The trial court did not err in a prosecution for murder by torture, felonious child abuse, and felony murder by admitting testimony concerning defendant's alleged mistreatment of one his girlfriend's children. The testimony was relevant under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) to establish defendant's motive and intent and to show the absence of mistake in that his conduct was sufficiently similar to contradict his suggestion that the injuries to this victim were inflicted while attempting to revive her. Even assuming the testimony was not admissible under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b), there was no prejudice from its admission because the State presented overwhelming evidence that defendant and his girlfriend abused this victim over a three or four week period and that defendant and his girlfriend inflicted numerous injuries on the victim during this period of time. There is no reasonable possibility that a different result would have been reached had the evidence been excluded. The fact that the trial court conducted a <italic>voir dire</italic> suggests that it carefully weighed the probative value of the evidence against the danger of unfair prejudice to defendant and the court gave an appropriate limiting instruction. <bold>Am Jur 2d, Evidence §§ 381, 408, 421</bold>. <bold>Sufficiency of evidence, for purposes of death penalty,</bold><bold>to establish statutory aggravating circumstance that</bold><bold>defendant was previously convicted of or committed other</bold><page_number>Page 475</page_number><italic>violent offense, had history of violent conduct, posed</italic><italic>continuing threat to society, and the like — post-</italic><bold><italic>Gregg</italic></bold><bold>cases. 65 ALR4th 838</bold>. <bold>9. Homicide § 261.1 (NCI4th) — murder by torture — sufficiency</bold> <bold>of evidence</bold> The evidence was sufficient to support the submission of first-degree murder by torture to the jury where, viewed in the light most favorable to the State, it tended to show that defendant and his girlfriend punished the two and a half-year-old victim by shaking her with their hands and by beating her with their fists, a belt, a metal tray, a broken antenna, and a pair of tennis shoes; the girlfriend in defendant's presence punished the victim by making her hang from a dresser by her forearms and chin; both the girlfriend and defendant punished the victim by making her wear soiled pants on her head; and defendant admitted smacking the victim ten times in the three weeks prior to her death, slapping her on the night she was taken to the hospital, and shaking her very hard on that night. The evidence permitted the jury to conclude that defendant engaged in a course of conduct in which he intentionally inflicted grievous pain and suffering upon the victim, that he did this to punish her, and that the torture was a proximate cause of her death. <bold>Am Jur 2d, Criminal Law § 598; Homicide §§ 48, 534, 544</bold>. <bold>Inference of malice or intent to kill where killing is by</bold><bold>blow without weapon. 22 ALR2d 854</bold>. <bold>What constitutes murder by torture. 83 ALR3d 1222</bold>. <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>. <bold>10. Infants or Minors § 20 (NCI4th) — felonious child abuse —</bold> <bold>evidence sufficient</bold> The trial court properly denied defendant's motion to dismiss a charge of felonious child abuse where the State's evidence tended to show that defendant was the victim's uncle, that he and his girlfriend had custody of the victim for three or four weeks prior to her death, that the victim was two and one-half years of<page_number>Page 476</page_number> age at the time of her death, and that defendant intentionally committed an assault upon the victim resulting in her death. <bold>Am Jur 2d, Homicide § 85; Infants § 16</bold>. <bold>Inference of malice or intent to kill where killing is by</bold><bold>blow without weapon. 22 ALR2d 854</bold>. <bold>Criminal liability of parent, teacher, or one in loco</bold><bold>parentis for homicide by excessive or improper punishment</bold><bold>inflicted on child. 89 ALR2d 417</bold>. <bold>11. Homicide § 263 (NCI4th) — felony murder — based on felonious</bold> <bold>child abuse — evidence sufficient</bold> The trial court did not err by denying defendant's motion to dismiss a charge of felony murder based on felonious child abuse where the evidence that defendant caused a small child's death by shaking her with his hands was sufficient for the jury to conclude that defendant committed felonious child abuse and that he used his hands as deadly weapons. <bold>Am Jur 2d, Homicide §§ 47, 72, 265, 574</bold>. <bold>Inference of malice or intent to kill where killing is by</bold><bold>blow without weapon. 22 ALR2d 854</bold>. <bold>Parts of the human body, other then feet, as deadly or</bold><bold>dangerous weapons for purposes of statutes aggravating offenses</bold><bold>such as assault and robbery. 8 ALR4th 1268</bold>. <bold>12. Criminal Law § 806 (NCI4th Rev.) — acting in concert —</bold> <bold>instructions — general intent crimes — no plain error</bold> There was no plain error in a prosecution for murder by torture, felonious child abuse, and felony murder in the trial court's acting in concert instruction or reinstruction. Although defendant argued that the instruction permitted the jury to convict him without determining that he possessed the requisite specific intent to commit these crimes, none of these crimes requires specific intent. Moreover, defendant's argument is without merit under the statement of acting in concert adopted in <italic>State v. Barnes</italic>, <cross_reference>345 N.C. 184</cross_reference>. <bold>Am Jur 2d, Criminal Law § 167; Homicide §§ 29, 72, 445, 507;</bold><bold>Trial § 1256</bold>. <bold>What constitutes murder by torture. 83 ALR3d 1222</bold>.<page_number>Page 477</page_number> <bold>13. Criminal Law § 805 (NCI4th Rev.) — child abuse and</bold> <bold>murder — acting in concert — evidence sufficient</bold> The trial court did not err by giving acting in concert instructions with respect to first-degree murder by torture, felony murder, and felonious child abuse where the evidence, viewed in the light most favorable to the State, tended to show that defendant and his girlfriend physically abused the two and one half year old victim for three weeks prior to her death; she had been beaten with a belt, a broken antenna, a metal tray, a pair of tennis shoes, and fists; the girlfriend in defendant's presence punished the victim by making her hang by her forearms and chin from a dresser; both the girlfriend and defendant punished the victim by making her wear soiled pants on her head; and both defendant and the girlfriend struck and shook the child on the night that they took her to the hospital. The evidence was more than ample to show that defendant and his girlfriend acted together with the joint purpose to commit acts constituting felonious child abuse and torture and that the victim's death was a natural and probable consequence of their actions. <bold>Am Jur 2d, Criminal Law § 167; Homicide §§ 29, 72, 445, 507;</bold><bold>Trial § 1256</bold>. <bold>What constitutes murder by torture. 83 ALR3d 1222</bold>. <bold>14. Criminal Law § 467 (NCI4th Rev.) — child abuse and murder —</bold> <bold>prosecutor's argument — bruises on victim — no plain error</bold> There was no plain error in a prosecution for first-degree murder by torture, felony murder, and felonious child abuse where the trial court did not intervene <italic>ex mero motu</italic> in the prosecutor's argument where the prosecutor showed the jury a pair of tennis shoes and argued that, while he couldn't say it was these shoes, the two and a half-year-old victim had been hit or kicked with a shoe. A pathologist testified that the pattern bruise was consistent with the pattern on the soles of the shoes, although he also said that he could not definitely say that a shoe caused the injury or be certain that the shoes seized from defendant's home caused any injuries to the victim. The prosecutor's comments were a reasonable inference from the evidence. <bold>Am Jur 2d, Expert and Opinion Evidence §§ 244, 261; Homicide</bold><bold>§ 442</bold>.<page_number>Page 478</page_number> <bold>Necessity and effect, in homicide prosecution, of expert</bold><bold>medical testimony as to cause of death. 65 ALR3d 283</bold>. <bold>What constitutes imminently dangerous act within homicide</bold><bold>statute. 67 ALR3d 900</bold>. <bold>What constitutes murder by torture. 83 ALR3d 1222</bold>. <bold>15. Criminal Law § 471 (NCI4th Rev.) — child abuse and murder —</bold> <bold>prosecutor's argument — victim shaken and thrown</bold> The trial court did not err in a prosecution for first-degree murder by torture, felony murder, and felonious child abuse by not intervening <italic>ex mero motu</italic> in the prosecutor's argument that the two and a half year old victim was shaken and thrown and that the back of her head hit a wall where the pathologist testified that a crack in the drywall at defendant's house was similar in appearance to an abrasion or scrape on the back of the victim's head, the State's evidence tended to show that the victim suffered severe head injuries, and the cause of death was brain injuries. This supports the inference that defendant threw the victim and that the back of her head hit the wall. <bold>Am Jur 2d, Expert and Opinion Evidence §§ 244, 261; Homicide</bold><bold>§ 442</bold>. <bold>Necessity and effect, in homicide prosecution, of expert</bold><bold>medical testimony as to cause of death. 65 ALR3d 283</bold>. <bold>What constitutes imminently dangerous act within homicide</bold><bold>statute. 67 ALR3d 900</bold>. <bold>What constitutes murder by torture. 83 ALR3d 1222</bold>. <bold>16. Criminal Law § 475 (NCI4th Rev.) — child abuse and murder —</bold> <bold>prosecutor's argument — lapsus linguae</bold> The trial court did not abuse its discretion by not intervening <italic>ex mero motu</italic> in a prosecution for first-degree murder by torture, felony murder, and felonious child abuse in the prosecutor's argument where the prosecutor misstated the evidence, but the misstatement was a <italic>lapsus linguae</italic> and there was no reasonable possibility of a different outcome had the trial court taken corrective action. <bold>Am Jur 2d, Homicide § 463; Trial §§ 499, 611</bold>.<page_number>Page 479</page_number>

<bold>1. Evidence and Witnesses § 2908 (NCI4th) — capital murder —</bold> <bold>killing cat — admissible</bold> There was no abuse of discretion in a capital prosecution for first-degree murder in the introduction of evidence that defendant Cagle had killed a cat by smashing its head against a wall and against a fish tank where, in response to pretrial written motions by both defendants, the court barred the evidence under N.C.G.S.<page_number>Page 498</page_number> § <cross_reference>8C-1</cross_reference>, Rule 403 but noted that it would reconsider if doors were opened; the court reconsidered following cross-examination and after hearing arguments from all parties; and the evidence was relevant to explain or rebut evidence elicited by defendant on cross-examination of the State's witnesses. Also, the court instructed the jurors to consider the evidence only to the extent they found it bore on defendant Cagle's state of mind, intent, malice or lack of malice. <bold>Am Jur 2d, Evidence §§ 340-342</bold>. <bold>2. Homicide § 669 (NCI4th) — first-degree murder — voluntary</bold> <bold>intoxication — requested instruction not given — no error</bold> There was no error in a prosecution for first-degree murder, robbery, and conspiracy in the trial court's failure to given defendant Cagle's requested instruction on voluntary intoxication where the evidence showed that defendant Cagle was able to have a predetermined plan, communicate the plan to another, execute the plan, flee the murder scene, and use the alibi. The evidence failed to show that at the time of the killing Cagle's mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. <bold>Am Jur 2d, Homicide § 517</bold>. <bold>3. Criminal Law § 1389 (NCI4th Rev.); Appeal and Error § 504</bold> <bold>(NCI4th) — capital sentencing — mitigating circumstance</bold> <bold>— impaired capacity — instructions — invited error — not</bold> <bold>prejudicial</bold> Any error in a capital prosecution for first-degree murder, robbery, and conspiracy in the court's instruction on the impaired capacity mitigating circumstance as to defendant Cagle was invited and not subject to review where the instruction was requested and agreed to by Cagle's counsel at the charge conference. Moreover, any error was harmless in that defendant contended on appeal that the instruction forced the jury to find both intoxication and narcotics ingestion before finding the mitigating circumstance, but the evidence was uncontradicted that Cagle consumed alcohol and smoked marijuana on the night of the murder. Also, the jury was instructed to consider mental illness in relation to several other mitigating circumstances. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(6).<page_number>Page 499</page_number> <block_quote> <bold>Am Jur 2d, Appellate Review §§ 715, 716; Criminal Law §§ 598,</bold> <bold>599</bold>.</block_quote> <bold>4. Criminal Law §§ 1375, 1392 (NCI4th Rev.) — capital sentencing</bold> <bold>— instructions — definition of mitigating circumstances</bold> The trial court did not err in a capital sentencing hearing in its definition of mitigating circumstance and by not explaining several nonstatutory mitigating circumstances. The court's instructions concerning both the definition of mitigating circumstance and the jury's duty to consider any circumstance arising from the evidence were substantially identical to the pattern jury instructions and to instructions held to be correct in other cases. The nonstatutory mitigating circumstances submitted to the jury were drafted by defendant, defendant did not object to the court's instructions on these circumstances, and the instructions on nonstatutory mitigating circumstances were clear and did not minimize the importance of the circumstances. <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <bold>5. Criminal Law § 690 (NCI4th Rev.) — capital sentencing —</bold> <bold>peremptory instruction — nonstatutory mitigating</bold> <bold>circumstance</bold> There was no error in a capital sentencing proceeding in the court's peremptory instructions on nonstatutory mitigating circumstances where the court instructed the jurors that they could refuse to find the circumstances, which all of the evidence supported, if they did not deem the circumstances to have mitigating value. <bold>Am Jur 2d, Criminal Law §§ 598, 599; Trial § 865</bold>. <bold>6. Criminal Law § 1375 (NCI4th Rev.) — capital sentencing —</bold> <bold>instruction on sympathy or mercy — refused — no error</bold> The trial court did not err in a capital sentencing proceeding by denying defendant's request for an instruction that the jury may base its sentencing recommendation upon sympathy or mercy where the court submitted the statutory catchall mitigating circumstance after proper instructions to the jury. <bold>Am Jur 2d, Trial §§ 1119, 1445-1447</bold>. <block_quote> <bold>Instructions to jury: Sympathy to accused as appropriate</bold> <bold>factor in jury consideration. 72 ALR3d 842</bold>.</block_quote><page_number>Page 500</page_number> <bold>7. Criminal Law § 1402 (NCI4th Rev.) — death sentence — not</bold> <bold>disproportionate</bold> A sentence of death was not disproportionate where the record fully supports the aggravating circumstance found by the jury, the failure to find certain submitted mitigating circumstances was a rational result from the evidence, there is no indication that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary consideration, and the case is more similar to certain cases in which death sentences were found proportionate than to those where it was found disproportionate or to those in which juries have consistently returned recommendations of life imprisonment. Although defendant Cagle argues that most robbery-murder defendants receive a life sentence, defendant was convicted on the theory of premeditation and deliberation as well as under the felony murder rule, indicating a more cold-blooded and calculated crime; the fact that the murder was committed in the victim's home is significant, as is the fact that defendant fled while the victim was still alive and suffering and that defendant never attempted to ensure that the victim received medical assistance; defendant was twenty-five years old while the defendant in <italic>State v. Young</italic>, <cross_reference>312 N.C. 669</cross_reference>, was nineteen; defendant delivered the fatal stab wounds; and the evidence suggests that the crime was motivated in part by prejudice toward homosexuals. <bold>Am Jur 2d, Criminal Law § 628</bold>. <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>8. Evidence and Witnesses § 1134 (NCI4th) — murder and robbery</bold> <bold>— codefendant killing cat — admissible</bold> The trial court did not err as to defendant Scott in a prosecution for first-degree murder, robbery, and conspiracy by admitting evidence of the killing of a cat by a codefendant. Defendant Scott's Confrontation Clause rights were not violated because the evidence was not an out-of-court statement but was trial testimony and defendant Scott had the opportunity to cross-examine. <bold>Am Jur 2d, Criminal Law §§ 723, 729; Evidence § 751</bold>.<page_number>Page 501</page_number> <bold>9. Criminal Law §§ 339; 574 (NCI4th Rev.) — murder and robbery</bold> <bold>— codefendant killing cat — severance and mistrial denied</bold> The trial court did not abuse its discretion in a prosecution for robbery and murder by denying defendant Scott's motion for severance and a mistrial after the trial court admitted evidence concerning a codefendant killing a cat. Although Scott argues that it was probative only of his codefendant's intent, Scott was convicted of first-degree murder only under the felony-murder rule, which does not require intent to kill. The introduction of the evidence against defendant Cagle about Cagle killing the cat could not have denied defendant Scott a fair trial. <bold>Am Jur 2d, Trial §§ 164-166</bold>. <bold>10. Criminal Law § 475 (NCI4th Rev.) — murder and robbery —</bold> <bold>prosecutor's argument — bruising after death — no error</bold> The prosecutor's comments in a prosecution for murder and robbery concerning bruising after death did not so infect defendant Scott's trial with unfairness as to make the resulting conviction a denial of due process where defendant Scott contended that the prosecutor argued medical facts not in evidence (that bruising stops at death), but defendant Scott was not prejudiced even if the argument was not a reasonable inference because it is irrelevant under the theory of acting in concert whether he committed any positive act in the assault. <bold>Am Jur 2d, Trial §§ 609, 632</bold>. <bold>11. Criminal Law § 475 (NCI4th Rev.) — murder and robbery —</bold> <bold>prosecutor's argument — killing of cat by codefendant —</bold> <bold>limiting instruction disregarded</bold> Defendant Scott's trial was not so infected with unfairness as to make the resulting conviction a denial of due process where he contended that the prosecutor improperly argued that the killing of a cat by a codefendant should be considered as evidence against Scott despite an instruction limiting the evidence to defendant Cagle. Intent to kill was not an element of Scott's felony murder conviction and he could not have been prejudiced by any evidence of his intent. <bold>Am Jur 2d, Criminal Law § 825; Homicide § 560</bold>.<page_number>Page 502</page_number>

<bold>1. Corporations § 143 (NCI4th) — accounting malpractice —</bold> <bold>action brought by shareholders — exceptions to general</bold> <bold>rule adopted — exceptions not satisfied</bold> The trial court properly granted summary judgment for defendant-accountants on claims for the lost value of plaintiffs' stock where defendants had been employed to provide services to The Furniture House, Inc. (TFH), plaintiffs were the sole shareholders and directors of TFH, and TFH was liquidated in bankruptcy. The general rule is that shareholders cannot pursue individual causes of action against third parties for wrongs or injuries to the corporation that result in the diminution or destruction of the value of their stock; however, two exceptions to the general rule are adopted. A shareholder may maintain an individual action against a third party for an injury that directly affects the shareholder, even if the corporation also has a cause of action arising from the same wrong, if the shareholder can show that the wrongdoer owed him a special duty or that the injury suffered by the shareholder is separate and distinct from<page_number>Page 651</page_number> the injury sustained by the other shareholders or the corporation itself. Plaintiffs here have not alleged a peculiar or personal injury, only the diminution or destruction of the value of the shares, precisely the injury suffered by the corporation, and may not proceed under the special duty doctrine because they have alleged no facts from which it may be inferred that defendants owed plaintiffs in their capacities as shareholders a duty that was personal to them and distinct from the duty defendants owed the corporation. All of the allegations indicate that any duty defendants owed plaintiffs was purely derivative of defendants' duty to provide non-negligent services to TFH and therefore the right to sue defendants for losses defendants suffered as shareholders belonged solely to TFH and perished when the corporation was dissolved in bankruptcy. <bold>Am Jur 2d Corporations §§ 2245, 2246, 2249, 2402, 2404</bold>. <block_quote> <bold>Liability of independent accountant to investors or</bold> <bold>shareholders. 35 ALR4th 225</bold>.</block_quote> <bold>2. Corporations § 143 (NCI4th) — sole shareholders as</bold> <bold>guarantors — action against corporation's accountants — exception</bold> <bold>to general rule — summary judgment for defendants improperly granted</bold> Plaintiffs may proceed with their individual lawsuit against defendant-accountants even though they are guarantors of a corporation's debt under the special duty exception to the general rule prohibiting individual lawsuits where defendants had been employed to provide services to The Furniture House, Inc. (TFH), plaintiffs were the sole shareholders and directors of TFH, and TFH was liquidated in bankruptcy. Guarantors of a corporation's debts ordinarily may not pursue individual actions to recover damages for injuries to the corporation; however, individual actions may be prosecuted if the guarantor can show either that the wrongdoer owed him a special duty or that the injury suffered is personal to the guarantor and distinct from the injury suffered by the corporation itself. Plaintiffs' allegations here create a genuine issue of material fact as to whether defendants owed them a special duty that was personal to them as guarantors and separate and distinct from the duty defendants owed the corporation. <bold>Am Jur 2d Corporations §§ 2245, 2246, 2249, 2402, 2404</bold>.<page_number>Page 652</page_number> <block_quote> <bold>Liability of independent accountant to investors or</bold> <bold>shareholders. 35 ALR4th 225</bold>.</block_quote> <bold>3. Corporations § 143 (NCI4th) — action by shareholders</bold> <bold>against corporation's accountants — action not allowed</bold> <bold>as shareholders — allowed as guarantors — not</bold> <bold>inconsistent</bold> Court of Appeals holdings in an action by the shareholders of the corporation against accountants employed by the corporation that plaintiffs may proceed in their individual capacities as personal guarantors of the corporation's debt but not in their individual capacities as shareholders were affirmed even though the parties contended that the holdings are internally inconsistent. Although similar rules of law govern the two roles, the rules must be applied to different facts and there simply were no factual allegations here to support a finding that defendant owed a special duty to plaintiffs as shareholders. Although plaintiffs argued that the shareholder is entitled to seek all damages caused by the wrongdoer once a shareholder establishes the special circumstances or special duty that creates the right to maintain a direct action, plaintiffs here have no claims as shareholders and cannot seek damages as shareholders. <bold>Am Jur 2d Corporations §§ 2245, 2246, 2249, 2402, 2404</bold>. <block_quote> <bold>Liability of independent accountant to investors or</bold> <bold>shareholders. 35 ALR4th 225</bold>.</block_quote> <bold>4. Limitations, Repose, and Laches § 26 (NCI4th) — accountant</bold> <bold>malpractice — negligent misrepresentation to third</bold> <bold>party — shareholders as guarantors — statute of limitations</bold> Plaintiffs' negligent misrepresentation claim arising from accounting services rendered to the corporation of which plaintiffs were the sole shareholders was not barred by the statute of limitations where plaintiffs were allowed to proceed only in their capacities as guarantors of the corporation's debt. Plaintiffs alleged facts that, if true, would bring them within the scope of the duty owed by accountants to persons other than their clients under <italic>Raritan</italic> <italic>River Steel Co. V. Cherry, Bekaert Holland</italic>, <cross_reference>322 N.C. 200</cross_reference>; in the absence of a professional relationship between the parties, this claim cannot fall under the professional malpractice statute of limitations. The applicable statute of limitations is N.C.G.S. § <cross_reference>1-52</cross_reference>(5), which prescribes a three-year statute<page_number>Page 653</page_number> of limitations, and which does not accrue until the claimant suffers harm because of the misrepresentation and the claimant discovers the misrepresentation. Plaintiffs' forecast of evidence tends to show that they discovered the alleged misrepresentations in 1990 and their claim was filed in 1992. <bold>Am Jur 2d, Accountants §§ 24, 25, 29</bold>. <block_quote> <bold>Application of statute of limitations to actions for</bold> <bold>breach of duty in performing services of public account.</bold> <bold>7 ALR5th 852</bold>.</block_quote> <bold>5. Fraud, Deceit, and Misrepresentation § 5 (NCI4th) —</bold> <bold>constructive fraud — taking advantage of relationship</bold> <bold>— benefit — allegations insufficient</bold> Plaintiffs' claim for constructive fraud was properly dismissed by the trial court in an action against defendant-accountants by the shareholders of a liquidated corporation where plaintiffs alleged only that they were harmed by specific misrepresentations made negligently by defendants but failed to allege that defendants took advantage of the parties' relationship to the hurt of plaintiffs. Furthermore, plaintiffs have not alleged that defendants sought to benefit themselves in any way; the benefit of continuing their relationship with plaintiffs is not a sufficient benefit to establish constructive fraud. The requirement of a benefit to defendants follows logically from the requirement that a defendant harm the plaintiff by taking advantage of their relationship of trust and confidence and the requirement of a benefit to defendants is implicit throughout the cases allowing constructive fraud claims. The Court of Appeals opinion in <italic>Bumgarner v. Tomblin</italic>, <cross_reference>63 N.C. App. 636</cross_reference>, did not eliminate the requirement that defendants in a constructive fraud claim take advantage of, and thus benefit from, their relationship of trust and confidence; in the context of the case as a whole, it is clear that the court in <italic>Bumgarner</italic> merely recognized that defendant's failure to make a profit on a specific transaction did not preclude plaintiffs' claim where there were other allegations that defendant took advantage of the parties' relationship of trust. <bold>Am Jur 2d, Fraud and Deceit § 4</bold>.

<bold>1. Indigent Persons § 19 (NCI4th) — capital murder — provision</bold> <bold>of forensic psychiatrist — denied — no particularized need</bold> The trial court did not abuse its discretion in a capital first-degree murder prosecution by providing the State access to a forensic psychiatrist while denying defendant's request for the same type of expert. Defendant had available at trial both a psychiatric and a psychological expert who had treated him for an extended period prior to the shooting and the diagnosis of the State's expert was in accord with theirs except that she did not believe defendant suffered from post-traumatic stress disorder. Mere suspicion that the classification of the State's witness as a forensic psychiatrist made her better equipped than the defendant's psychologist to testify about defendant's mental status was insufficient to require that defendant be given a court-appointed forensic expert. Defendant did not demonstrate a particularized need for a forensic psychiatrist or a reasonable likelihood that such an expert would materially assist him in the preparation and presentation of his case. <block_quote> <bold>Am Jur 2d, Criminal Law §§ 955, 1006; Expert and Opinion</bold> <bold>Evidence § 13</bold>.</block_quote> <block_quote> <bold>Right of indigent defendant in state criminal case to</bold> <bold>assistance of psychiatrist or psychologist. 85 ALR4th 19</bold>.</block_quote> <bold>2. Evidence and Witnesses § 2890.5 (NCI4th) — capital murder —</bold> <bold>defendant's psychologist — license revocation — not</bold> <bold>suppressed</bold> A first-degree murder defendant was not denied his due-process guarantee of a competent mental-health expert by the denial of his motion <italic>in limine</italic> to suppress evidence of his psychologist's license revocation. The State was entitled to call into question the psychologist's credentials, as with any witness; defendant had another competent mental-health expert witness; and the State's forensic psychiatrist testified largely in accord with the testimony of defendant's experts. The denial of defendant's<page_number>Page 690</page_number> motion did not have a prejudicial effect on his right to present his psychiatric defense. <bold>Am Jur 2d, Expert and Opinion Evidence §§ 142, 381</bold>. <bold>3. Homicide § 523 (NCI4th) — second-degree murder — diminished</bold> <bold>mental capacity — not a defense to malice</bold> The trial court did not err in a murder prosecution by not instructing the jury that diminished mental capacity could negate the element of malice required for a second-degree murder. Second-degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation and diminished capacity not amounting to legal insanity is not a defense to the element of malice in second-degree murder. <block_quote> <bold>Am Jur 2d, Criminal Law § 41; Expert and Opinion Evidence §</bold> <bold>190; Homicide §§ 115, 516</bold>.</block_quote> <block_quote> <bold>Appealability of orders or rulings, prior to final judgment</bold> <bold>in criminal case, as to accused's mental competency.</bold> <bold>16 ALR3d 714</bold>.</block_quote> <block_quote> <bold>Competency to stand trial of criminal defendant diagnosed as</bold> <bold>"mentally retarded" — modern cases. 23 ALR4th 493</bold>.</block_quote> <bold>4. Assault and Battery § 60 (NCI4th) — assault on an officer —</bold> <bold>diminished capacity — not a defense — distinction between</bold> <bold>general intent and specific intent not abolished</bold> The trial court did not err by not instructing the jury to consider diminished mental capacity as a defense to seven counts of assault with a deadly weapon on a government officer. This felony may be described as a general-intent offense because the jury is not required to find that defendant possessed any intent beyond the intent to commit the unlawful act, which will be inferred or presumed from the act itself. Knowledge of the victim's status as a government officer is simply a fact that the State must prove; it is not a state of mind to which the diminished-capacity defense may be applied. Defendant's invitation to dispense with the distinction between specific-intent and general-intent crimes was declined; the diminished-capacity defense is not available to negate the general intent required for a conviction of assault with a deadly weapon on a government officer. <bold>Am Jur 2d, Criminal Law § 41; Homicide § 115</bold>.<page_number>Page 691</page_number> <block_quote> <bold>Appealability of orders or rulings, prior to final judgment</bold> <bold>in criminal case, as to accused's mental competency.</bold> <bold>16 ALR3d 714</bold>.</block_quote> <block_quote> <bold>Competency to stand trial of criminal defendant diagnosed as</bold> <bold>"mentally retarded" — modern cases. 23 ALR4th 493</bold>.</block_quote> <bold>5. Jury § 141 (NCI4th) — capital murder — jury selection —</bold> <bold>conception of parole eligibility</bold> The trial court did not err in a capital murder prosecution by denying defendant's pretrial motion to permit him to examine prospective jurors regarding their conception of parole eligibility when a defendant receives a life sentence. The trial court specifically instructed the jury that a separate sentencing hearing would be held if defendant was convicted of first-degree murder, gave the instruction that a sentence of life imprisonment means life without parole prior to jury selection, and reiterated it during jury selection. Defendant was not prevented from informing members that life imprisonment means life without parole and his counsel so indicated several times during the trial. <bold>Am Jur 2d, Jury §§ 198, 206; New Trial § 247</bold>. <block_quote> <bold>Prejudicial effect of statement or instruction of court as to</bold> <bold>possibility of parole or pardon. 12 ALR3d 832</bold>.</block_quote> <bold>6. Jury § 226 (NCI4th) — capital murder — jury selection —</bold> <bold>unequivocal opposition to death penalty — no opportunity to</bold> <bold>rehabilitate</bold> The trial court did not abuse its discretion in jury selection for a capital first-degree murder prosecution where defendant contended that he was not allowed to rehabilitate prospective jurors excused for cause based on opposition to the death penalty. In all but one instance, defendant either did not ask to rehabilitate or was unsuccessful in doing so and on the one occasion when defendant was denied <italic>voir dire</italic>, the prospective juror was unequivocal in his opposition to the death penalty. A defendant is not permitted to rehabilitate a juror who has expressed unequivocal opposition to the death penalty in response to questions propounded by the prosecutor and the trial court. <bold>Am Jur 2d, Criminal Law § 685; Jury § 279</bold>.<page_number>Page 692</page_number> <block_quote> <bold>Comment note. — Beliefs regarding capital punishment as</bold> <bold>disqualifying juror in capital case — post-</bold><bold><italic>Witherspoon</italic></bold> <bold>cases.</bold> <bold>39 ALR3d 550</bold>.</block_quote> <bold>7. Criminal Law § 1402 (NCI4th Rev.) — death sentence — not</bold> <bold>disproportionate</bold> A sentence of death was not disproportionate where there was clear evidentiary support for the aggravating circumstances considered and found by the jury, the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, and this case is distinguishable from the seven cases in which the death penalty was found disproportionate because none of those cases involved the first-degree murder of a police officer from a distance with a high-powered rifle while the officer was engaged in the performance of his duties. This case is similar to cases in which the death penalty was found proportionate. <bold>Am Jur 2d, Criminal Law § 628; Homicide § 556</bold>. <block_quote> <bold>Propriety of imposing capital punishment on mentally retarded</bold> <bold>individuals. 20 ALR5th 177</bold>.</block_quote> <block_quote> <bold>Supreme Court's views on constitutionality of death penalty</bold> <bold>and procedures under which it is imposed or carried out.</bold> <bold><cross_reference>90 L.Ed.2d 1001</cross_reference></bold>.</block_quote>

<bold>1. Constitutional Law § 344.1 (NCI4th) — first-degree murder —</bold> <bold>defendant's right to be present — note from judge to juror</bold> There was no prejudicial error in a capital prosecution for first-degree murder where, during defendant's cross-examination of a prosecution witness, the trial court interrupted defense counsel to have the bailiff deliver a note to an alternate juror; the court said, "She is right here in the courthouse. If you have keys, you can deliver your keys up, sir"; and the court also told the alternate that he could talk to his fellow jurors about the note. The trial court negated the defendant's presence in the courtroom by passing the note to the alternate juror without revealing the contents to defendant or his counsel but the transcript reflects the benign substance of the communication between the court and the juror. The trial court's instruction that the juror was free to discuss the note with his fellow jurors was particularly significant. <bold>Am Jur 2d, Criminal Law § 692; Trial §§ 1573, 1579</bold>. <block_quote> <bold>Communication between court officials or attendants and</bold> <bold>jurors in criminal trial as ground for mistrial or reversal —</bold> <bold>post-</bold><bold><italic>Parker</italic></bold> <bold>cases. 35 ALR4th 890</bold>.</block_quote> <bold>2. Constitutional Law § 344.1 (NCI4th) — first-degree murder —</bold> <bold>defendant's right to be present — paper handed from bench to</bold> <bold>counsel</bold> The right of a defendant to be present at his capital prosecution for first-degree murder was not violated where, following the guilt-innocence charge conference, the court asked the attorneys to step to the bench to be handed a sheet of paper. No comments were made at the bench, the contents of the paper provided to counsel were not revealed, defendant was actually present in the courtroom and was able to inquire of his counsel regarding the substance of the paper, defendant had constructive knowledge through his counsel of the substance of the paper, and defendant was not excluded from any private conversations between the court, the prosecutor, and defendant's counsel. Defendant's presence was not negated by the court's actions.<page_number>Page 705</page_number> <bold>Am Jur 2d, Criminal Law §§ 692, 695</bold>. <bold>3. Evidence and Witnesses § 1776 (NCI4th) — first-degree murder</bold> <bold>— time period in which murder occurred — demonstration by</bold> <bold>prosecutor</bold> The trial court did not err in a capital prosecution for first-degree murder by overruling defendant's objection to a demonstration by the prosecutor during guilt-innocence closing arguments where an expert witness had testified that the victim would have lost consciousness between two and five minutes after receiving the fatal knife wounds and the prosecutor silently timed five minutes, then argued that five minutes was a long time to be slashed, cut, and stabbed; that the victim had up to five minutes to experience the pain of being stabbed thirty-one times; that the victim had the experience of seeing her own blood; and asked the jury to consider what the victim was thinking during the five-minute period. The evidence presented at trial permitted the prosecutor to argue that defendant pursued, stabbed, and slashed the victim during the five-minute period after defendant inflicted the fatal wounds, the demonstration was designed to give the jury a better grasp of what occurred during this period, and the demonstration was proper. <bold>Am Jur 2d, Evidence §§ 996, 997, 1005; Trial § 566</bold>. <bold>4. Criminal Law § 454 (NCI4th Rev.) — capital murder —</bold> <bold>prosecutor's argument — victim's thoughts — not grossly</bold> <bold>improper</bold> An argument by a prosecutor in a capital prosecution for first-degree murder that described what the victim may have seen and felt and asked the jury to speculate about what the victim may have been thinking was not so grossly improper as to require the trial court to intervene <italic>ex mero motu</italic>. The description of what the victim may have seen and felt was based upon the evidence presented at trial and the comments with respect to what the victim may have been thinking as she died were similar to the prosecutor's remarks in <italic>State v. King</italic>, <cross_reference>299 N.C. 707</cross_reference>. <bold>Am Jur 2d, Trial §§ 554, 664, 665</bold>. <block_quote> <bold>Supreme Court's views as to what courtroom statements made by</bold> <bold>prosecuting attorney during criminal trial violate due process or</bold> <bold>constitute denial of fair trial. <cross_reference>40 L.Ed.2d 886</cross_reference></bold>.</block_quote><page_number>Page 706</page_number> <bold>5. Homicide § 493 (NCI4th) — capital murder — instructions —</bold> <bold>lack of provocation by victim</bold> The trial court did not err in a capital prosecution for first-degree murder by instructing the jury that it could consider the lack of provocation by the victim in determining whether defendant acted with premeditation and deliberation. The instruction was not biased in favor of the State's position. <bold>Am Jur 2d, Homicide §§ 498, 501; Trial § 1165</bold>. <block_quote> <bold>Homicide: presumption of deliberation or premeditation from</bold> <bold>the circumstances attending the killing. 96 ALR2d 1435</bold>.</block_quote> <bold>6. Criminal Law § 1382 (NCI4th Rev.) — capital sentencing — no</bold> <bold>significant history of prior criminal activity — not</bold> <bold>submitted — error</bold> The trial court erred in a capital sentencing proceeding by not submitting the statutory mitigating circumstance that defendant had no significant history of prior criminal activity where the evidence tended to show that defendant had pled guilty to four counts of misdemeanor larceny for stealing money and merchandise from his employer over a period of four or five years; had pled guilty to two or three felony counts for stealing jewelry left in a room by a guest in the motel in which defendant worked; was sentenced to probation and ordered to pay restitution in connection with both the felony and misdemeanor counts; there was evidence that defendant had smoked marijuana since the seventh or eighth grade and had used cocaine since 1988; and no evidence presented at trial suggested that defendant had committed any violent crimes prior to the killing of the victim. Defendant's prior convictions consisted solely of property crimes, there was no evidence that defendant had engaged in any prior violent criminal activity, defendant did not receive an active prison sentence for any of those convictions, and, given the number, age, and nature of defendant's prior criminal activities, a rational juror could have concluded that defendant had no significant history of prior criminal activity. The submission of the nonstatutory mitigating circumstance that defendant had no prior criminal convictions or criminal history for violent criminal behavior did not render the error harmless beyond a reasonable doubt because the jury was not required to give mitigating value to the circumstance. Defendant's criminal history was submitted to the jury, but the<page_number>Page 707</page_number> jury was not allowed to consider whether this history was significant under the statutory (f)(1) circumstance. <bold>Am Jur 2d, Criminal Law §§ 598, 599; Homicide § 554</bold>. <block_quote> <bold>Court's right, in imposing sentence, to hear evidence of, or</bold> <bold>to consider, other offenses committed by defendant.</bold> <bold>96 ALR2d 768</bold>.</block_quote>

<bold>1. Constitutional Law § 281 (NCI4th) — capital murder — request</bold> <bold>for pro se defense — mental condition of defendant —</bold> <bold>court's inquiry</bold> The trial court did not err in a capital first-degree murder `prosecution by initially granting defendant's request to represent himself and later by not revoking his right of self-representation. When defendant first expressed his desire to represent himself, the trial court conducted the required inquiry and entered an order committing defendant for evaluation of his competency to proceed; the director of Forensic Psychiatry at Dorothea Dix Hospital found defendant competent to waive representation by an attorney and to proceed to trial; and the court found defendant competent to waive counsel, made the appropriate inquiry, and allowed defendant to sign a waiver of counsel. The trial court's findings show that defendant was able to respond to the court's inquiry in a manner that demonstrated that he understood the nature of the proceedings, comprehended the serious nature of his situation, and was prepared to proceed with his defense in a rational or reasonable manner. The trial court's inquiry was sufficient to determine that defendant's decision to proceed <italic>pro se</italic> was knowing and voluntary. <bold>Am Jur 2d, Criminal Law §§ 759-768</bold>.<page_number>Page 719</page_number> <block_quote> <bold>Waiver or estoppel in incompetent legal representation cases.</bold> <bold>2 ALR4th 807</bold>.</block_quote> <block_quote> <bold>Supreme Court's views as to what constitutes valid waiver of</bold> <bold>accused's federal constitutional right to counsel.</bold> <bold><cross_reference>101 L.Ed.2d 1017</cross_reference></bold>.</block_quote> <bold>2. Constitutional Law § 282 (NCI4th) — capital sentencing — pro</bold> <bold>se defense — comments by defendant — stand-by counsel not</bold> <bold>required to assume defense — no error</bold> The trial court did not err in a capital sentencing proceeding by not revoking defendant's right to represent himself and by not requiring standby counsel to assume the conduct of the defense where, during the sentencing testimony, defendant called the jurors the "antichrists"; declared that the jurors could "kiss his natural black ass in the window of Helig-Meyers"; that the jurors could pull the switch and let the good times roll"; and that defendant would meet them in hell where they would be required to worship him. As in <italic>State v. Cunningham</italic>, <cross_reference>344 N.C. 341</cross_reference>, defendant was allowed to continue representing himself, as he wanted. <bold>Am Jur 2d, Criminal Law §§ 759-768</bold>. <block_quote> <bold>Waiver or estoppel in incompetent legal representation cases.</bold> <bold>2 ALR4th 807</bold>.</block_quote> <block_quote> <bold>Supreme Court's views as to what constitutes valid waiver of</bold> <bold>accused's federal constitutional right to counsel.</bold> <bold><cross_reference>101 L.Ed.2d 1017</cross_reference></bold>.</block_quote> <bold>3. Constitutional Law § 280 (NCI4th) — capital sentencing — pro</bold> <bold>se defense — nature of sentencing hearing — defendant</bold> <bold>adequately informed</bold> The trial court adequately advised a first-degree murder defendant who waived his right to counsel of the nature of the capital sentencing proceeding where the court clearly advised defendant of his right to counsel, made sure defendant understood that he was waiving his right to have stand-by counsel take over the case, and informed defendant that he had been convicted of first-degree murder and that the jury would be deciding whether he was sentenced to life imprisonment or to death. <bold>Am Jur 2d, Criminal Law §§ 759-768</bold>.<page_number>Page 720</page_number> <block_quote> <bold>Waiver or estoppel in incompetent legal representation cases.</bold> <bold>2 ALR4th 807</bold>.</block_quote> <block_quote> <bold>Supreme Court's views as to what constitutes valid waiver of</bold> <bold>accused's federal constitutional right to counsel.</bold> <bold><cross_reference>101 L.Ed.2d 1017</cross_reference></bold>.</block_quote> <bold>4. Appeal and Error § 155 (NCI4th) — capital murder — pro se</bold> <bold>defendant — restriction of stand-by counsel — error not</bold> <bold>assigned on appeal</bold> A first-degree murder defendant's assignment of error concerning whether the trial court had impermissibly restricted stand-by counsel was overruled where the <italic>pro se</italic> defendant did not raise the issue at trial and did not specifically and distinctly assign plain error in the record on appeal. <bold>Am Jur 2d, Appellate Review §§ 614, 616</bold>. <bold>5. Criminal Law § 1340 (NCI4th Rev.) — capital sentencing —</bold> <bold>evidence of attempts to evade detection — relevant to</bold> <bold>pecuniary gain aggravating circumstance</bold> The trial court did not err in a capital sentencing proceeding by admitting evidence that defendant put plastic bags on his feet so that dogs could not pick up his scent and that he wore a stocking cap so that no hair would fall out. This evidence would have been admissible during the trial and, although defendant contended that these matters did not relate to the sole aggravating circumstance presented, killing for pecuniary gain, the jury heard evidence regarding the payment defendant was to receive for the murder. Testimony that he took great pains to make sure that he left no incriminating evidence supports the inference that this was a cold-blooded, calculated, contract killing for money. <bold>Am Jur 2d, Criminal Law §§ 598, 599; Homicide § 554</bold>. <bold>6. Criminal Law § 1402 (NCI4th Rev.) — death sentence —</bold> <bold>proportionate</bold> A sentence of death for a first-degree murder was not disproportionate where the record fully supports the aggravating circumstance found by the jury, there was no indication that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary consideration, this case is distinguishable from those cases in which the death penalty has been found disproportionate, and this case is similar to those cases in which the<page_number>Page 721</page_number> death penalty was found proportionate. The proportionality pool contains several cases in which the death penalty has been upheld for contract killings and defendant was convicted of first-degree murder on both the basis of premeditation and deliberation and lying in wait. Defendant here murdered the victim after lying in wait and watching her for hours from the woods surrounding her home; he was willing to kill a person he had never met for money; he made elaborate plans to accomplish the murder and do it without getting caught; and he never showed any remorse for what he did and bragged to his friend. <bold>Am Jur 2d, Criminal Law § 628; Homicide §§ 439, 553</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty, to</bold> <bold>establish statutory aggravating circumstance that murder was</bold> <bold>committed for pecuniary gain, as consideration or in expectation</bold> <bold>of receiving something of monetary value, and the like — post-</bold> <bold><italic>Gregg</italic></bold> <bold>cases. 66 ALR4th 417</bold>.</block_quote>

<bold>Products Liability § 18 (NCI4th) — electrical safety gloves —</bold> <bold>products liability action by lineman — contributory</bold> <bold>negligence</bold> Summary judgment was improperly granted for defendants on the issue of plaintiff's contributory negligence where plaintiff was an electrical lineman; his protective helmet was blown off by the wind three times while he was working on an overhead power line; he did not replace it the third time; an energized line either touched plaintiff or came within a short distance of his unprotected head; electricity ran from the overhead line through his body and exited by his gloved hands, which were holding a grounded cable; and defendants were the manufacturer and seller of the gloves. N.C.G.S. § <cross_reference>99B-4</cross_reference>(1) and (3) merely codify the common law doctrine of contributory negligence as it applies in products liability actions, and N.C.G.S. § <cross_reference>99B-4</cross_reference> sets out or explains more specialized fact patterns which would amount to contributory negligence in a products liability action. It does not create a different rule for products liability actions but clarifies the common law contributory negligence standard with respect to these actions and clearly provides that one who is negligent under the circumstances in the use of the product will be barred from recovery. All of the circumstances during the plaintiff's use<page_number>Page 768</page_number> of the product must be considered, not just plaintiff's conduct with respect to the product itself. Here, defendants' and plaintiff's affidavits contest whether plaintiff's conduct was reasonable under the circumstances and an issue of fact exists as to the reasonableness of plaintiff's conduct under the circumstances. <block_quote> <bold>Am Jur 2d, Products Liability §§ 1047, 1333, 1346, 1431,</bold> <bold>1451</bold>.</block_quote> <bold>Products liability: product misuse defense. 65 ALR4th 263</bold>.