Volume 348 — North Carolina Reports

<bold>Automobiles and Other Vehicles § 563 (NCI4th) — parking</bold> <bold>truck on highway — instruction on gross negligence not</bold> <bold>required</bold> The trial court in an action arising from the collision of an automobile with a parked truck and trailer did not err by refusing to instruct the jury on willful or wanton conduct (gross negligence) by the truck driver in parking his eight-foot wide truck and trailer on a sunny morning on the right-hand side of a thirty-six-foot wide straight and level rural paved road for the purpose of unloading equipment.

<bold>Hospitals and Medical Facilities or Institutions § 62</bold> <bold>(NCI4th) — rest home — failure to restrain resident — insufficient</bold> <bold>evidence of negligence</bold> The evidence was insufficient for the jury on the issue of negligence by defendant rest home and its employees in failing to restrain a ninety-eight-year-old resident at the time she fell and was seriously injured.

1. Jury § 141 (NCI4th) — jury selection — perceptions about parole eligibility — disallowance of questions The trial court properly denied defendant's pretrial motion to conduct a <italic>voir dire</italic> in this capital trial regarding the jurors' perceptions about parole eligibility. The decision of <italic>Simmons v.</italic> <italic>South Carolina</italic>, <cross_reference>512 U.S. 154</cross_reference>, is inapplicable when defendant would be eligible for parole if given a life sentence.<page_number>Page 170</page_number> 2. Criminal Law § 78 (NCI4th Rev.) — pretrial publicity — denial of change of venue — no due process denial The trial court did not err by denying defendant's motions for a change of venue or a special venire in this capital trial because of pretrial publicity where defendant did not exhaust his peremptory challenges; the jurors who decided the case each stated unequivocally that they would be able to reach a verdict based solely upon the evidence presented at trial; there was no indication that news accounts of the crimes or the trial were other than routine factual accounts; and nothing in the record would support a conclusion that either the community from which the jury was drawn or the trial proceedings were so infected by prejudice that they must be deemed to have deprived defendant of the opportunity to receive a fair trial and, thereby, to have denied him due process. 3. Jury § 222 (NCI4th) — death penalty views — excusal for cause The trial court did not err by excusing a prospective juror for cause because of his capital punishment views where the juror stated that his feelings toward the death penalty could "probably" substantially impair his ability to consider voting for the death penalty and that his longstanding moral convictions about the death penalty would substantially impair him in the sentencing process and prevent him from voting for the death penalty. 4. Jury § 123 (NCI4th) — jury selection — questions ruled improper — exercise of peremptory challenge — failure to exhaust peremptory challenges — absence of prejudice Defendant was not prejudiced by the trial court's ruling that defendant's questioning of a prospective juror about the statutory mitigating circumstance concerning defendant's impairment by cocaine use was an improper attempt to "stake out" the juror where defendant exercised a peremptory challenge to excuse the juror but did not exhaust his peremptory challenges during jury selection. 5. Appeal and Error § 150 (NCI4th) — constitutional claim — failure to raise in trial court A defendant who failed to raise constitutional claims in the trial court is barred from asserting them for the first time on appeal.<page_number>Page 171</page_number> 6. Homicide § 669 (NCI4th) — first-degree murder — voluntary intoxication instruction not required The trial court did not err in refusing to instruct the jury on voluntary intoxication in a first-degree murder prosecution where there was sufficient evidence to support the trial court's conclusion that, although the evidence was sufficient to support a finding that defendant was intoxicated, it was insufficient to support a finding that defendant'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. 7. Criminal Law § 570 (NCI4th Rev.) — unresponsive testimony — instructions to disregard — mistrial denied The trial court did not err by denying defendant's motion for a mistrial when a witness volunteered his opinion that conditions she observed at the crime scene indicated a struggle, and the trial court sustained defendant's objection, allowed his motion to strike, and instructed the jury to disregard the conclusory statement made by the witness; the prosecutor then rephrased the question to the witness so as to avoid eliciting the stricken opinion testimony but the witness again gave an answer that included the previously stricken statement of opinion; and the trial court again sustained defendant's objection, instructed the jury to disregard the conclusory statement, and admonished the witness to testify only as to what she had seen. The jury is presumed to have followed the instructions of the trial court. 8. Criminal Law § 475 (NCI4th Rev.) — prosecutor's jury argument — insufficient evidence of voluntary intoxication — no gross impropriety The prosecutor's jury argument in the guilt phase of a capital first-degree murder trial to the effect that defendant had not produced sufficient evidence of intoxication to justify even an instruction as to whether voluntary intoxication may have prevented defendant from forming a premeditated and deliberate intent to kill was not so grossly improper as to require the trial court to intervene <italic>ex mero motu</italic> since the argument raised a question about the possibility of an additional defense as to which the jury was not instructed and which defendant was not entitled to have considered by the jury, and the argument was thus helpful to defendant.<page_number>Page 172</page_number> 9. Criminal Law § 474 (NCI4th Rev.) — capital trial — prosecutor's closing argument — overhead photographic projections The record fails to show that the prosecutor's use of overhead photographic projections during his closing argument in the guilt determination phase of a capital trial was prejudicial error. 10. Criminal Law § 422 (NCI4th Rev.) — capital sentencing — course of conduct — reference to other cases — no gross impropriety Assuming that it was improper for the prosecutor to argue during a capital sentencing proceeding that "Prior cases [have] found course of conduct when a woman was kidnapped from the car and raped," this brief reference to other unspecified cases with no indication as to whether those cases had been upheld on appeal was not so grossly improper as to require the trial court to intervene <italic>ex mero motu</italic>. 11. Criminal Law § 458 (NCI4th Rev.) — capital sentencing — prosecutor's argument — mitigating circumstances — request by defendant — absence of prejudice Defendant was not prejudiced by the prosecutor's argument that the mitigating circumstances submitted to the jury had been requested by defendant when submission of the (f)(1) mitigating circumstance that defendant had no significant history of prior criminal activity was not requested but was opposed by defendant where one or more jurors found this mitigator to exist and weighed it in favor of defendant. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(1). 12. Criminal Law § 458 (NCI4th Rev.) — capital sentencing — prosecutor's argument — rejection of mitigating circumstances The prosecutor's arguments in a capital sentencing proceeding that jurors should reject mitigating circumstances because many people had the same problems in their lives as defendant but did not commit murder, and that even if the mitigating circumstances were found to exist, they did not justify the killing were not grossly improper and did not require intervention by the trial court on its own motion.<page_number>Page 173</page_number> 13. Criminal Law § 460 (NCI4th Rev.) — capital sentencing — prosecutor's argument — death penalty not prohibited by Bible — no gross impropriety The prosecutor's jury argument in a capital sentencing proceeding which contended that the Bible did not prohibit the death penalty but which did not ask the jury to impose divine law was not so grossly improper as to require the trial court to intervene <italic>ex mero motu</italic>. 14. Criminal Law § 473 (NCI4th Rev.) — capital trial — prosecutor's argument — defense contrived by defendant The prosecutor did not improperly argue in a capital trial that defense counsel had "contrived" a defense; rather, he argued that the defense was contrived by defendant after defendant learned that one victim had survived, and this argument was not improper. 15. Criminal Law § 442 (NCI4th Rev.) — capital trial — prosecutor's argument — lack of remorse The prosecutor's argument in a capital trial that defendant had not shown any remorse for his actions was not an improper comment on defendant's exercise of his right to silence. The State is allowed to comment upon defendant's demeanor in the courtroom during closing arguments, and bringing defendant's lack of any demonstration of remorse to the attention of the jury is proper so long as the prosecutor does not urge the jury to consider lack of remorse as an aggravating circumstance. 16. Criminal Law § 461 (NCI4th Rev.) — capital sentencing — prosecutor's argument — effect of failure to recommend death penalty It was not improper for the prosecutor to argue in a capital sentencing proceeding that if the jury failed to recommend death, defendant might get out of prison and hurt other people or the surviving victim, and that the surviving victim would not be able to sleep peacefully if the jury came back with a recommendation of anything other than death because defendant would not be locked up tight on death row. Further, any possible impropriety was cured by the trial court's instruction to the jury and his admonition to counsel.<page_number>Page 174</page_number> 17. Criminal Law § 474 (NCI4th Rev.) — capital sentencing — prosecutor's argument — audiotape of 911 call Where an audiotape of the call made by the murder victim's brother to the 911 emergency communications center was admitted into evidence in the guilt phase of defendant's capital trial, it was proper for the prosecutor to play the audiotape during closing arguments in the capital sentencing proceeding for the jury's consideration. 18. Criminal Law § 1382 (NCI4th Rev.) — capital sentencing — mitigating circumstance — no significant criminal history The trial court did not err during a capital sentencing proceeding by submitting as a mitigating circumstance that defendant had no significant history of prior criminal activity where the evidence tended to show that defendant had been convicted of five misdemeanors and two felonies and had unlawfully consumed drugs and alcohol as a child and adult. The trial court properly concluded that a reasonable juror could find that defendant had no significant history of prior criminal activity within the meaning of N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(1) and that it was required to submit this mitigating circumstance to the jury even though defendant opposed its submission. 19. Criminal Law § 1402 (NCI4th Rev.) — death penalty not disproportionate A sentence of death imposed on defendant for first-degree murder was not excessive or disproportionate where defendant was convicted under theories of premeditation and deliberation and the felony murder rule; the jury also found defendant guilty of first-degree burglary, assault with a deadly weapon with intent to kill inflicting serious injury, first-degree kidnapping, and first-degree rape; the jury found as aggravating circumstances that the murder was committed while defendant was engaged in committing the felony of rape, that the murder was especially heinous, atrocious, or cruel, and that the murder was part of a course of conduct which included the commission by defendant of other crimes of violence against another person; the evidence showed that defendant raped the eleven-year-old female victim in her home and then kidnapped and killed her; and the evidence also showed that defendant repeatedly stabbed the victim's thirteen-year-old brother.<page_number>Page 175</page_number>

Criminal Law § 1324 (NCI4th Rev.) — first-degree murder — pretrial conference — prosecutor's failure to request — sanction — prohibition of capital trial — exceeding inherent authority The trial court's order prohibiting the State from seeking the death penalty in a first-degree murder prosecution as a sanction for the district attorney's failure to timely file a petition for a special pretrial conference as required by Rule 24 of the Rules of Practice for the Superior and District Courts exceeded the trial court's inherent authority to enforce the Rules of Practice since the order is potentially in conflict with the mandate of the General Assembly in the capital sentencing statute that evidence or lack of evidence of an aggravating circumstance dictates whether a defendant will be tried capitally or noncapitally for first-degree murder; the order impermissibly impinges on the district attorney's obligation under the North Carolina Constitution to prosecute all criminal actions in the superior courts of his district; and the order impermissibly limits the right of the people to<page_number>Page 267</page_number> have defendant, if permitted by the evidence, prosecuted and punished to the full extent of the law for this crime. N.C. Const. art. IV, § 13; N.C. Const. art. IV, § 18; N.C.G.S. § <cross_reference>7A-34</cross_reference>.

<bold>1. Utilities § 185 (NCI4th) — just and reasonable rate of</bold> <bold>return — factors</bold> <block_quote> What is a"just and reasonable" rate of return depends upon a determination and examination of several variables, including: (1) the rate base which earns the return; (2) the gross income received by the applicant from its authorized operations; (3) the amount to be deducted for operating expenses, which must include the amount of capital investment currently consumed in rendering the service; and (4) what rate constitutes a just and reasonable rate of return on the predetermined rate base.</block_quote> <bold>2. Utilities § 181 (NCI4th) — fair rate of return — conclusion</bold> <bold>of law — factual findings</bold> <block_quote> What constitutes a fair rate of return on common equity is a conclusion of law that must be predicated on adequate factual findings.</block_quote> <bold>3. Utilities § 232 (NCI4th) — nonunammous stipulation — consideration</bold> <bold>by Utilities Commission</bold> <block_quote> A stipulation entered into by less than all of the parties as to any facts or issues in a contested case proceeding under Chapter 62 should be accorded full consideration and weighed by the Utilities Commission with all other evidence presented by any of the parties in the proceeding. The Commission may adopt the recommendations or provisions of the nonunanimous stipulation as long as the Commission sets forth its reasoning and makes its own independent conclusion supported by substantial evidence on the record that the proposal is just and reasonable to all parties in light of all the evidence presented.</block_quote> <bold>4. Utilities § 232 (NCI4th) — unanimous stipulation — informal</bold> <bold>disposition of rate case</bold> <block_quote> Only those stipulations that are entered into by all of the parties before the Utilities Commission may form the basis of<page_number>Page 453</page_number> informal disposition of a contested proceeding under N.C.G.S. § <cross_reference>62-69</cross_reference> (a).</block_quote> <bold>5. Utilities § 232 (NCI4th) — return on equity — adoption of</bold> <bold>rate in nonunanimous stipulation — failure to make independent</bold> <bold>determination</bold> <block_quote> The Utilities Commission erred in finding the 11.4% rate of return on common equity specified in a nonunanimous stipulation by a gas company and the public staff in a natural gas rate case where it is clear that the Commission merely adopted, without analysis or deduction, the 11.4% rate set forth in the stipulation rather than considering the stipulation as one piece of evidence to be weighed in making an otherwise independent determination as to the appropriate rate of return.</block_quote> <bold>6. Utilities § 196 (NCI4th) — rate case — cost of service to</bold> <bold>customer classes — material fact</bold> <block_quote> Cost of service to the various customer classes is a material fact in a natural gas general rate case because (1) the utility's cost of providing service to each of its customer classes is an integral part of the formula for determining the appropriate rates of return for each customer class as it pertains to the ordered rate design, and (2) cost of service must be examined in reviewing whether there is unjust discrimination in rate design among classes of customers under N.C.G.S. § <cross_reference>62-140</cross_reference>.</block_quote> <bold>7. Utilities § 196 (NCI4th) — natural gas rate case — cost of</bold> <bold>service for various classes — insufficient findings</bold> <block_quote> Findings by the Utilities Commission in a natural gas rate case with regard to cost of service for the various classes of customers lacked analysis and were insufficient to enable the appellate court to properly review the ordered rate design where the only determination regarding the cost of service calculation was a finding that the cost of service studies presented in this proceeding show that somewhat higher rates of return exist under the filed and stipulated proposed rates for Large General and Interruptible customers than for Residential customers and that the rate of return for Residential customers is below the total company returns; the findings do not establish the magnitude of the differences among the rates of return provided by the various customer classes; the findings do not set forth the existing rate differences with respect to the cost of serving the several customer classes; and the Commission's characterization of industrial<page_number>Page 454</page_number> class rates as"somewhat higher" under the stipulated rates is not only vague but is arguably contrary to the evidence.</block_quote> <bold>8. Utilities § 198 (NCI4th) — rate case — full margin transportation</bold> <bold>rates</bold> <block_quote> A gas company's use of full margin transportation rates was proper as a matter of law where those rates were supported by competent, material and substantial evidence in view of the entire record.</block_quote>

<bold>Judgments § 166 (NCI4th) — multiple defendants — joint and several</bold> <bold>liability — default judgment against one defendant</bold> <block_quote> Final judgment on the merits may be made separately against one defendant who is in default when there are multiple defendants who are alleged to be jointly and severally liable. The principle stated in <italic>Frow</italic> <italic>v. De La Vega</italic>, <cross_reference>82 U.S. 552</cross_reference>, should be applied only where the defendants have been alleged as jointly liable rather than jointly and severally liable.</block_quote>