Volume 347 — North Carolina Reports

<bold>1. Criminal Law § 1342 (NCI4th Rev.) — capital sentencing —</bold> <bold>photographs of prior victim — admissibility to illustrate</bold> <bold>testimony and show aggravating circumstance</bold> Postmortem photographs of a woman defendant previously murdered in South Carolina were properly admitted in defendant's capital sentencing proceeding to illustrate an officer's testimony and to support the existence of the (e)(3) aggravating circumstance that defendant had previously been convicted of a felony involving violence to a person. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(3). <bold>Am Jur 2d, Trial §§ 1759, 1760</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that defendant</bold> <bold>was previously convicted of or committed other violent offense,</bold> <bold>had history of violent conduct, posed continuing threat to</bold> <bold>society, and the like — post</bold>-<bold><italic>Gregg</italic></bold> <bold>cases. 65 ALR4th 838</bold>.</block_quote> <bold>2. Criminal Law § 1335 (NCI4th Rev.) — capital sentencing —</bold> <bold>victim's disinterment — admissibility of videotape</bold> A videotape of the disinterment of the murder victim's body was properly admitted in a capital sentencing proceeding to illustrate an officer's testimony regarding defendant's treatment and<page_number>Page 310</page_number> concealment of the body and to show defendant's intent to kill, malice, premeditation, and deliberation. <bold>Am Jur 2d, Evidence §§ 979-985</bold>. <bold>3. Evidence and Witnesses § 2171 (NCI4th) — capital sentencing —</bold> <bold>cross-examination of defendant's expert — defendant's prior bad</bold> <bold>acts — door opened — basis for diagnosis</bold> The trial court properly permitted the State to cross-examine defendant's expert witness in a capital sentencing proceeding about bad acts defendant committed prior to the murder in this case since (1) defendant opened the door by eliciting testimony about these bad acts on direct examination, and (2) the cross-examination was proper to explore the basis for the expert's opinion and diagnosis where the expert had testified on direct examination that prior bad acts, including defendant's acts of theft, vandalism, and distributing threatening letters, formed the basis for various diagnoses over the years. Furthermore, the State's cross-examination of defendant's expert about defendant's prior bad acts did not violate defendant's plea agreement because that agreement specifically permitted the State to offer evidence of defendant's prior crimes if such evidence became relevant to cross-examination of a defense witness. <bold>Am Jur 2d, Evidence §§ 404 et seq</bold>. <bold>4. Criminal Law § 466 (NCI4th Rev.) — capital sentencing —</bold> <bold>life sentence in South Carolina — parole eligibility — irrelevancy</bold> The trial court did not err when it refused to allow defendant to inform the jury in a capital sentencing proceeding that he had received a life sentence for first-degree murder in South Carolina under which he is parole-eligible after serving twenty years because evidence about parole eligibility does not reveal anything about defendant's character or record or about circumstances of the offense. The case of <italic>Simmons v. South</italic> <italic>Carolina</italic>, <cross_reference>512 U.S. 154</cross_reference>, is inapposite because defendant will be eligible for parole after serving twenty years of his life sentence in South Carolina and would have been eligible for parole after serving twenty years had he received a life sentence in this case. <bold>Am Jur 2d, Trial § 1661</bold>.<page_number>Page 311</page_number> <bold>5. Criminal Law § 1364 (NCI4th Rev.) — capital sentencing —</bold> <bold>(e)(3) aggravating circumstance — meaning of "previously convicted"</bold> The "previously convicted" language in the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(3) aggravating circumstance includes criminal activity conducted prior to the events out of which the charge of murder arose, even when the conviction came after those events, provided the conviction occurs before the capital sentencing proceeding in which it is used as the basis of the (e)(3) aggravator. Therefore, the trial court properly submitted defendant's conviction for first-degree murder in South Carolina for consideration under the (e)(3) aggravating circumstance where defendant committed the South Carolina murder before he committed the murder in this case and was convicted of it prior to this capital sentencing proceeding, even though his South Carolina conviction did not precede the murder at issue. Contrary language in <italic>State v. Williams</italic>, <cross_reference>339 N.C. 1</cross_reference>, <cross_reference>452 S.E.2d 245</cross_reference> is disavowed. <bold>Am Jur 2d, Trial §§ 1759, 1760</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that defendant</bold> <bold>was previously convicted of or committed other violent offense,</bold> <bold>had history of violent conduct, posed continuing threat to</bold> <bold>society, and the like — post</bold>-<bold><italic>Gregg</italic></bold> <bold>cases. 65 ALR4th 838</bold>.</block_quote> <bold>6. Criminal Law § 690 (NCI4th Rev.) — capital sentencing —</bold> <bold>mitigating circumstance — age — peremptory instruction not</bold> <bold>required</bold> Although defendant was only twenty-two and a half years old when he murdered the victim, his mental and physical maturity, experience, and prior criminal history supported the trial court's denial of defendant's request for a peremptory instruction in this capital sentencing proceeding on the (f)(7) mitigating circumstance of age. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(7). <bold>Am Jur 2d, Trial §§ 1759, 1760</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that defendant</bold> <bold>was previously convicted of or committed other violent offense,</bold> <bold>had history of violent conduct, posed continuing threat to</bold> <bold>society, and the like — post</bold>-<bold><italic>Gregg</italic></bold> <bold>cases. 65 ALR4th 838</bold>.</block_quote><page_number>Page 312</page_number> <bold>7. Criminal Law § 690 (NCI4th Rev.) — capital sentencing —</bold> <bold>nonstatutory mitigating circumstance — failure to give peremptory</bold> <bold>instruction — harmless error</bold> The trial court erred in the denial of defendant's request for a peremptory instruction on the nonstatutory mitigating circumstance that he had graduated from a truck-driving school because the evidence on this circumstance was uncontroverted and the State stipulated to this fact; however, this error was harmless beyond a reasonable doubt where the jury knew that it was uncontroverted that defendant had graduated from truck-driving school; this fact was listed as a nonstatutory mitigator on the Issues and Recommendation as to Punishment form; the prosecutor stated during closing argument that the State had stipulated to this fact; and a peremptory instruction would thus not have altered the jury's conclusion regarding defendant's sentence. <bold>Am Jur 2d, Trial §§ 1759, 1760</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that defendant</bold> <bold>was previously convicted of or committed other violent offense,</bold> <bold>had history of violent conduct, posed continuing threat to</bold> <bold>society, and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 65 ALR4th 838</bold>.</block_quote> <bold>8. Criminal Law § 458 (NCI4th Rev.) — capital sentencing —</bold> <bold>prosecutor's jury argument — value of statutory mitigating</bold> <bold>circumstances — no gross impropriety</bold> The prosecutor's jury argument in a capital sentencing proceeding that, if the jury found statutory mitigating circumstances to exist, "then you should consider them in whatever way you might want to use them," while somewhat misleading as to the value the jury must accord to statutory mitigating circumstances, was not so grossly improper as to require the trial court to intervene <italic>ex mero motu</italic> and was not reversible error where the trial court correctly instructed the jurors on the law regarding statutory and nonstatutory mitigating circumstances, and the court also instructed that the jurors must apply the law as the court gave it to them, not as the attorneys gave it to them or as they might like it to be. <bold>Am Jur 2d, Trial §§ 1759, 1760</bold>.<page_number>Page 313</page_number> <block_quote> <bold>Sufficiency of evidence, for purposes of death penalty,</bold> <bold>to establish statutory aggravating circumstance that defendant</bold> <bold>was previously convicted of or committed other violent offense,</bold> <bold>had history of violent conduct, posed continuing threat to</bold> <bold>society, and the like — post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 65 ALR4th 838</bold>.</block_quote> <bold>9. Criminal Law § 115 (NCI4th Rev.) — report of defendant's</bold> <bold>nontestifying psychologist — no constitutional or statutory</bold> <bold>right to discovery</bold> The State had no constitutional or statutory right to discover the report of a clinical psychologist who had examined defendant, at defendant's request, in preparation for his murder trial where defendant did not intend to introduce the report at trial and did not call the psychologist to testify. N.C.G.S. §§ <cross_reference>15A-905</cross_reference>(b). <bold>Am Jur 2d, Depositions and Discovery §§ 50, 51, 56, 65</bold>. <bold>10. Criminal Law § 98 (NCI4th Rev.) — compelling discovery —</bold> <bold>inherent authority of trial court</bold> The trial court possesses inherent authority to compel discovery in certain instances in the interest of justice when no statute has placed a limitation on the trial court's authority. <bold>Am Jur 2d, Depositions and Discovery §§ 5, 7</bold>. <bold>11. Criminal Law § 115 (NCI4th Rev.) — nontestifying psychologist's</bold> <bold>report — denial of pretrial discovery</bold> Under the limitation set forth in N.C.G.S. § <cross_reference>15A-906</cross_reference>, the trial court properly declined to compel defendant to disclose his non-testifying psychologist's report when the State requested such disclosure prior to trial. <bold>Am Jur 2d, Depositions and Discovery §§ 50, 51, 56, 65</bold>. <bold>12. Criminal Law § 98 (NCI4th Rev.) — pretrial discovery — limiting</bold> <bold>statute — discovery at later stage — inherent authority of court</bold> Even when statutes limit the trial court's authority to compel pretrial discovery, the court may retain inherent authority to compel discovery of the same documents at a later stage of the proceedings. <bold>Am Jur 2d, Depositions and Discovery §§ 5, 7</bold>.<page_number>Page 314</page_number> <bold>13. Criminal Law § 115 (NCI4th Rev.) — discovery — report of</bold> <bold>nontestifying psychologist — use for cross-examining expert</bold> The trial court had the inherent authority to compel defendant to disclose to the State a nontestifying psychologist's report after defendant admitted guilt of first-degree murder and after the capital sentencing proceeding was underway where defendant's mental health expert testified that he had studied every mental health report in defendant's medical history, and the State sought to discover the nontestifying psychologist's report for use during its cross-examination of defendant's expert. Assuming that the trial court erred in compelling such discovery, the error was harmless beyond a reasonable doubt where nothing in the record suggests that the State's cross-examination of defendant's expert would not have been equally effective without the use of the report. <bold>Am Jur 2d, Depositions and Discovery §§ 93 et seq., 260, 263</bold>. <bold>14. Jury § 226 (NCI4th) — excusal for cause — death penalty</bold> <bold>views — rehabilitation denied</bold> The trial court did not abuse its discretion in denying defendant's requests to rehabilitate five jurors excused for cause based upon their death penalty views where each of the jurors clearly demonstrated that he or she would have been unable to vote for the death penalty under any circumstances; the court asked clarifying questions of the first four to assure their opposition to the death penalty; and the last juror's statements were so clear that the court did not need to ask further questions before excusing him. <bold>Am Jur 2d, Jury §§ 205, 206, 279</bold>. <bold>15. Criminal Law § 1402 (NCI4th Rev.) — death penalty not</bold> <bold>disproportionate</bold> A sentence of death imposed upon defendant for first-degree murder is not excessive or disproportionate where the jury found as an aggravating circumstance that defendant had been previously convicted of a felony involving the use or threat of violence to the person, N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(3), and defendant had previously been convicted of another first-degree murder. <bold>Am Jur 2d, Criminal Law §§ 625-628</bold>.<page_number>Page 315</page_number>

<bold>Infants or Minors § 121 (NCI4th) — abused child — order authorizing</bold> <bold>action to terminate parental rights — ceasing efforts to reunite</bold> <bold>family</bold> The trial court had the authority to permit a county DSS to cease efforts to reunite an abused and neglected juvenile with his parents as part of its order authorizing the DSS to initiate an action to terminate parental rights. <block_quote> <bold>Am Jur 2d, Juvenile Courts and Delinquent and Dependent</bold> <bold>Children §§ 45 et seq</bold>.</block_quote>

<bold>Judges, Justices, and Magistrates § 38 (NCI4th) — district</bold> <bold>court judge — falsifying court documents — censure</bold> A district court judge's admitted acts of falsifying official court documents by the false entry of guilty pleas without the knowledge of defendants constituted willful misconduct in office as well as conduct prejudicial to the administration of justice that brings the judicial office into disrepute and would have warranted removal from office. However, the Judicial Standards Commission's recommendation of censure is accepted in light of the judge's acknowledgment of wrongdoing, her resignation from office, and her agreement not to hold future judicial office in North Carolina.<page_number>Page 383</page_number> <bold>Am Jur 2d, Judges § 84; Public Officers and Employees § 193</bold>. <block_quote> <bold>Removal or discipline of state judge for neglect of, or</bold> <bold>failure to perform, jucidial duties. 87 ALR4th 727</bold>.</block_quote>

<bold>1. Public Officers and Employees § 68 (NCI4th); Schools</bold> <bold>§ 176 (NCI4th) — negligence claim — school teacher — official</bold> <bold>capacity — governmental immunity</bold> An action against defendant high school teacher to recover damages for injuries received by an industrial arts student in an accident in a shop classroom was a suit against defendant teacher solely in his official capacity as an agent of defendant board of education where plaintiffs failed to specify whether they were suing defendant teacher in his individual or official capacity; the complaint alleged that defendant teacher was employed by defendant board of education as a teacher; plaintiffs set forth only one claim for relief in their complaint; and after defendants were allowed to amend their answer to allege that both defendants<page_number>Page 549</page_number> were entitled to governmental immunity because the board of education had not purchased a contract of insurance that covered exposure of $1 million or less, plaintiffs sought to amend their complaint only by adding an allegation that defendant board of education had waived immunity that might cover it and defendant teacher by the purchase of liability insurance and did not attempt to amend their complaint to specify whether they intended to sue defendant teacher in his individual or official capacity or both. Therefore, where it was determined that the board of education is entitled to governmental immunity from suit for the first $1 million in damages which may be awarded, defendant teacher, in his official capacity, is entitled to governmental immunity to that same extent. <bold>2. Public Officers and Employees § 68 (NCI4th) — suit against</bold> <bold>public officer or employee — allegations of capacity</bold> Pleadings should indicate in the caption the capacity in which a plaintiff intends to hold a public officer or employee liable by including words such as "in his official capacity" or "in his individual capacity" after a defendant's name. In addition, allegations as to the extent of liability claimed should provide further evidence of capacity, and the prayer for relief should indicate whether plaintiff seeks to recover damages from a defendant individually or as agent of the governmental entity.

<bold>1. Insurance § 8 (NCI4th) — filed rate doctrine — adoption for</bold> <bold>North Carolina</bold> The filed rate doctrine, which provides that a plaintiff may not claim damages on the ground that a rate approved by a regulator as reasonable is nonetheless excessive because it is the product of unlawful conduct, is adopted for application in North Carolina.<page_number>Page 628</page_number> <bold>2. Insurance § 8 (NCI4th); Workers' Compensation § 318</bold> <bold>(NCI4th) — excessive workers' compensation rates — action against</bold> <bold>carriers — restraint of trade — unfair practice — unfair</bold> <bold>competition — claims barred by filed rate doctrine</bold> The filed rate doctrine barred claims by plaintiff employers against defendant workers' compensation carriers and rate organizations for restraint of trade under N.C.G.S. § <cross_reference>75-1</cross_reference>, unfair and deceptive practices under N.C.G.S. § <cross_reference>75-1.1</cross_reference>, and unfair competition in violation of N.C.G.S. § <cross_reference>58-63-15</cross_reference> based on allegations that defendants withheld evidence from the Commissioner of Insurance about servicing carrier fees for residual market (assigned risk pool) workers' compensation insurance in a 1992 rate case and caused the Commissioner to approve excessive rates for workers' compensation insurance. <bold>3. Insurance § 8 (NCI4th) — workers' compensation rates —</bold> <bold>collateral attack — equitable estoppel cases inapplicable</bold> Cases which hold that when an insurer makes a representation as to coverage in a filing, it cannot give a lesser coverage in its policies do not apply to an action in which plaintiff employers alleged that defendant insurer carriers and rate organizations withheld information from the Commissioner of Insurance in a rate case and caused the Commissioner to approve excessive rates. <bold>4. Insurance § 8 (NCI4th); Workers' Compensation § 318</bold> <bold>(NCI4th) — workers' compensation rates — illegal activities —</bold> <bold>injunctive relief — filed rate doctrine</bold> The filed rate doctrine barred plaintiffs' claims for injunctive relief based on alleged illegal activities in the setting of workers' compensation insurance rates. <bold>5. Workers' Compensation § 318 (NCI4th) — excessive servicing</bold> <bold>carrier fees — forcing into residual market — claim for damages</bold> <bold>— filed rate doctrine</bold> The filed rate doctrine barred plaintiff employers' claims for damages based on allegations that a conspiracy by defendant workers' compensation carriers and rating organizations to fix excessive servicing carrier fees forced some employers into the residual market (assigned risk pool) where the premiums are higher and the employers do not receive dividends on their policies<page_number>Page 629</page_number> since plaintiffs could not prove damages without recalculating rates previously fixed by the Commissioner of Insurance.