Volume 353 — North Carolina Reports

<bold>1. Sentencing — Capital — mitigating circumstance — age of defendant —</bold> <bold>evidence not sufficient</bold> <block_quote> The trial court did not err in a capital sentencing proceeding by not submitting the mitigating circumstance for the age of the defendant, N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f) (7), where defendant was twenty years old at the time he committed the crimes, in honors<page_number>Page 93</page_number> English and history classes in high school and a voracious reader, had completed his general equivalency diploma, served in the military, and did well in quartermaster school.</block_quote> <bold>2. Homicide — First-degree murder — short-form indictment</bold> <block_quote> The North Carolina short-form indictment for first-degree murder is constitutional.</block_quote> <bold>3. Homicide — Guilty plea — finding of premeditation and deliberation —</bold> <bold>surplusage</bold> <block_quote> A trial court "finding" of premeditation and deliberation constituted unnecessary surplusage where defendant pled guilty to two first- degree murders; a plea of guilty means, nothing else appearing, that defendant is guilty upon any and all theories available to the State.</block_quote> <bold>4. Sentencing — Capital — codefendant's sentence — irrelevant</bold> <block_quote> The trial court did not err in a capital sentencing proceeding by not admitting evidence of a codefendant's life sentences and not submitting the nonstatutory mitigating circumstance that defendant's codefendant received life sentences. A codefendant's sentence for the same murder is irrelevant in sentencing proceedings; the accomplices' punishment is not an aspect of defendant's character or record nor a mitigating circumstance of the particular offense.</block_quote> <bold>5. Sentencing — Capital — jury selection — personal views on death</bold> <bold>penalty — instruction</bold> <block_quote> The trial court did not err during jury selection or in the jury charge in a capital sentencing proceeding by not giving defendant's requested instructions that it was permissible for the jurors' personal views concerning the death penalty to influence their sentencing decision.</block_quote><page_number>Page 94</page_number> <bold>6. Sentencing — Capital — aggravating circumstance — application to each</bold> <bold>of two counts — instruction</bold> <block_quote> The trial court did not err in a capital sentencing proceeding for two murders in its instruction on the especially heinous, atrocious, or cruel aggravating circumstance, N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e) (9), that the circumstance "applies equally to both murders."</block_quote> <bold>7. Sentencing — Capital — nonstatutory mitigating circumstance —</bold> <bold>depression</bold> <block_quote> The trial court did not err during a capital sentencing proceeding by failing to submit defendant's requested nonstatutory mitigating circumstance that he was depressed after he returned from military service in Korea.</block_quote> <bold>8. Jury — Selection — capital sentencing — whether juror could impose</bold> <bold>life sentence — redundant — court's discretion</bold> <block_quote> The trial court did not abuse its discretion in a capital sentencing proceeding by refusing to allow defense counsel to ask a prospective juror whether he could consider imposing a life sentence after being informed that defendant was guilty of two homicides.</block_quote><page_number>Page 95</page_number> <bold>9. Jury — Selection — capital sentencing — residual mitigation</bold> <block_quote> The trial court did not abuse its discretion in a capital sentencing proceeding by preventing defendant from asking a prospective juror whether he could consider residual mitigation under the catchall circumstance, N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f) (9), where the prospective juror had indicated that he could follow the law as instructed by the trial court and the court's instruction on the catchall mitigating circumstance after the evidence was heard was proper.</block_quote> <bold>10. Jury — Selection — objection to procedure — not preserved for appeal</bold> <block_quote> The defendant in a capital sentencing proceeding failed to preserve for appellate review the question of whether the trial court erred by reassigning a prospective juror to a later panel where defendant never objected at trial, never complied with N.C.G.S. § <cross_reference>15A-1211</cross_reference>(c), and expressly approved the reassignment of the prospective juror.</block_quote> <bold>11. Criminal Law — Prosecutor's argument — capital sentencing — outside</bold> <bold>record — defendant's guilt not in issue — comment minor in context of</bold> <bold>entire record</bold> <block_quote> There was no error so grossly improper that the trial court erred by not intervening ex mero motu in a capital sentencing proceeding where the prosecutor's argument that the blood of both victims was found on defendant's clothing was not wholly supported by the record. Defendant's guilt was not at issue in this proceeding and the comment was minor in the context of the prosecutor's entire closing statement.</block_quote> <bold>12. Sentencing — Capital — aggravating circumstance — especially</bold> <bold>heinous, atrocious, or cruel — not unconstitutionally vague</bold> <block_quote> The especially heinous, atrocious, or cruel aggravating circumstance is not unconstitutionally vague. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e) (9).</block_quote> <bold>13. Sentencing — Capital — aggravating circumstance — especially</bold> <bold>heinous, atrocious, or cruel — sufficiency of evidence</bold> <block_quote> The trial court did not err during a capital sentencing proceeding by submitting the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e) (9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel in a situation where defendant-husband chased and rammed his victim-wife's car, returned to the parking lot once the first officer had left, shot the victim in the back, got back into his car, shot the victim again, and left the victim helpless on the ground.</block_quote><page_number>Page 96</page_number> <bold>14. Sentencing — capital — death sentence not arbitrary</bold> <block_quote> The evidence fully supported the aggravating circumstances found by the jury in a capital sentencing proceeding and there was no indication that the two death sentences were imposed under the influence of passion, prejudice, or any other arbitrary factor.</block_quote> <bold>15. Sentencing — Capital — death penalty — not disproportionate</bold> <block_quote> Death sentences for two first degree-murders were not disproportionate where defendant was convicted of two counts of first-degree murder.</block_quote>

<bold>Workers' Compensation — Causation — fibromyalgia — doctor's opinion</bold> <bold>testimony</bold> <block_quote> The Court of Appeals erred in concluding that competent evidence was presented to support the Industrial Commission's findings of fact with regard to the cause of plaintiff-employee's fibromyalgia based solely on the opinion testimony of one doctor.</block_quote>

<bold>Jury — Capital sentencing — alternate juror — substituted during</bold> <bold>deliberations — error</bold> <block_quote> The trial court erred in a capital first-degree murder prosecution by denying defendant's motion for a mistrial under N.C.G.S. <cross_reference>15A-1061</cross_reference> based on the post-verdict removal of a juror for juror misconduct committed during the guilt-innocence phase of deliberations and the substitution of an alternate juror for the sentencing proceeding, because: (1) defendant has a right under the North Carolina Constitution to trial by a jury composed of twelve qualified jurors; and (2) the dismissed juror's misconduct during jury deliberations resulted in a guilty verdict by a jury composed of less than twelve qualified jurors. N.C. Const. art. <cross_reference>I</cross_reference>, § <cross_reference>24</cross_reference>.</block_quote>

<bold>Firearms and Other Weapons — possession by felon — operability</bold> <block_quote> The trial court did not err in a prosecution for possession of a firearm by a felon by denying defendant's requested instruction that inoperability constituted an affirmative defense. Although N.C.G.S. § <cross_reference>14-415.1</cross_reference> addresses the size of handguns or firearms which fall under its purview, it does not address whether the handgun or firearm has to be operational at the time of the charge. Cases relied upon by the Court of Appeals in holding to the contrary are not determinative because they involved other<page_number>Page 496</page_number> statutes or dicta; however, In re Crowley, <cross_reference>120 N.C. App. 274</cross_reference>, involved a similar issue, similar statute, and similar analysis. The focus of the words "purchase, own, possess, or have in custody, care, or control" in N.C.G.S. § <cross_reference>14-415.1</cross_reference> is on the felon's access to the firearm and not the firearm's operability at any given point, and this focus is consistent with the logical objective of preventing a show of force by felons, real or apparent. Finally, it is illogical to conclude that the legislature intended that a felon in possession of an unloaded firearm was not in violation of the prohibition of possession of firearms by felons.</block_quote>

<bold>Judges — misconduct — removal from office — remand for rehearing —</bold><bold>videotaping of testimony</bold> <block_quote> A proceeding to remove a district court judge from office for misconduct based upon allegations that he physically assaulted a deputy clerk of court and made inappropriate sexual remarks to her in the judge's chambers is remanded to the Judicial Standards Commission for a rehearing in which the testimony shall be videotaped where the evidence before the Supreme Court in the form of a written record is such that the Court cannot properly carry out its responsibilities for independently evaluating the evidence.</block_quote><page_number>Page 512</page_number>

<bold>Sexual Offenses — date of offense — variance between indictment and</bold><bold>evidence — prejudicial</bold> <block_quote> The trial court erred in a prosecution for a first-degree sexual offense against a juvenile under the age of thirteen by not granting defendant's motion to dismiss where the indictment listed only the month of July 1991 as the time of the assaults, defendant presented evidence of his whereabouts for each day of that month, the prosecutor introduced evidence concerning sexual encounters between the victim and defendant over a two- and one-half-year period, and the prosecutor presented no evidence of a specific act occurring during July of 1991. Generally, the time listed in the indictment is not an essential element of the crime charged, but here the dramatic variance between the date set forth in the indictment and the evidence presented by the State prejudiced defendant by depriving him of an opportunity to adequately present his defense.</block_quote>

<bold>1. Aiding and Abetting — instructions — specific intent</bold> <block_quote> The Court of Appeals erred by holding improper a trial court's instructions on aiding and abetting a kidnapping and burglary where the offense occurred when State v. Blankenship, <cross_reference>337 N.C. 543</cross_reference>, was in effect and the court instructed the jury that it had<page_number>Page 569</page_number> to find that defendant "knowingly encouraged or aided" in the burglary and kidnapping in order to convict. These instructions are similar to those approved in State v. Allen, <cross_reference>339 N.C. 545</cross_reference>, and adequately convey the requirement that defendant had to have the specific intent to aid in the underlying offenses.</block_quote> <bold>2. Burglary — aiding and abetting — sufficiency of evidence — underlying</bold> <bold>murder — intent</bold> <block_quote> The trial court properly denied defendant's motion to dismiss a charge of first-degree burglary by aiding and abetting where defendant contended that there was insufficient evidence that he possessed the specific intent to aid the principal (Lawrence) in committing the murder underlying the burglary, but mistakenly relied upon his own testimony. Taken in the light most favorable to the State, the evidence showed that defendant was a friend of Lawrence and spent the day with him at a cookout; defendant, clad in black, accompanied Lawrence that night to the home of the victim (McLean), arming himself with a sawed-off shotgun after seeing that Lawrence was carrying a pistol; defendant stood by with his shotgun at McLean's home while Lawrence argued with his former girlfriend, Morrison; defendant followed Lawrence into McLean's home and stood inside the doorway with his shotgun while Lawrence shot McLean numerous times; defendant drove the vehicle away from the scene with Lawrence and the abducted Morrison, remarking that Lawrence should have killed Morrison also; defendant hid the murder weapon; and a search of defendant's vehicle yielded several nine-millimeter rounds and twenty-gauge shotgun shells.</block_quote> <bold>3. Kidnapping — aiding and abetting — intent — sufficiency of evidence</bold> <block_quote> The trial court properly denied defendant's motion to dismiss a charge of kidnapping by aiding and abetting where, although defendant argued that the evidence at most showed that he assisted in escorting the victim to a hotel for a consensual sexual encounter, a reasonable juror could have inferred that defendant knew a sexual assault was in the offing; testimony established that the victim, barely dressed and in obvious distress, was removed at gunpoint from her home immediately after she saw her boyfriend murdered and was then kept in the vehicle while the principal (Lawrence) checked in at the hotel; and the victim noticed soon after that a loaded shotgun had been brought into the hotel room. Defendant's behavior both encouraged and protected<page_number>Page 570</page_number> Lawrence and also ensured that others would not witness or hinder the commission of the rape.</block_quote> <bold>4. Kidnapping — instructions — theory not alleged in indictment — not</bold> <bold>prejudicial or plain error</bold> <block_quote> The trial court erred in a kidnapping prosecution by instructing the jury on removal when the indictment alleged only confinement. However, the erroneous instructions did not constitute prejudicial or plain error where the court's instructions on purpose did not differ from that listed in the indictment, the evidence of confinement, restraint and removal was compelling, and a different result would not have been reached by the jury had the trial court instructed on confinement rather than removal.</block_quote> <bold>5. Aiding and Abetting — instructions — mere presence</bold> <block_quote> There was no plain error in a prosecution for first-degree burglary and first-degree kidnapping as an aider and abettor where defendant contends that the court should have instructed on "mere presence." There is no obligation to instruct on mere presence when the evidence is undisputed that defendant participated in the crime and was not just a bystander. Moreover, read as a whole, the instructions adequately conveyed the principle that defendant's presence alone is not sufficient to support a conviction for burglary or kidnapping as an aider and abettor.</block_quote> <bold>6. Sentencing — firearms enhancement — determination of maximum sentence</bold> <block_quote> A first-degree burglary and kidnapping defendant's motion for appropriate relief in the Supreme Court was granted, his sentences were vacated, and the matter was remanded where the trial court's application of the firearms enhancement provision of N.C.G.S. § <cross_reference>15A-1340.16A</cross_reference> added sixty months to the longest minimum sentence, resulting in the addition of at least sixty months to the corresponding statutory maximum sentence and an enhanced maximum exceeding that set out in the sentencing charts for a defendant in the highest criminal history category convicted of an aggravated offense. In every instance where the State seeks an enhanced sentence pursuant to N.C.G.S. § <cross_reference>15A-1340.16A</cross_reference>, it must allege the statutory factors supporting the enhancement in the indictment, which may be the same indictment that charges the underlying offense, and submit those factors to the jury. Although this defendant's prior record level and actual sentencing range was toward the low end of the sentencing<page_number>Page 571</page_number> tables, the statutory maximum is determined by assuming that the offense was aggravated and that defendant had a criminal history level of VI. It was noted that the General Assembly intended that the trial court add 60 months to the minimum sentence and then refer to the sentencing charts to determine the corresponding maximum sentence.</block_quote>

<bold>1. Employer and Employee — breach of fiduciary duty — forming rival company</bold> <block_quote> The trial court properly granted summary judgment in favor of defendant Camp on a claim for breach of fiduciary duty arising from defendant leaving plaintiff's employment and starting a rival company, because plaintiff employer failed to establish facts supporting a breach of fiduciary duty when no evidence suggests that defendant's position in the workplace resulted in domination and influence over plaintiff.</block_quote> <bold>2. Employer and Employee — breach of loyalty — forming rival company</bold> <block_quote> The trial court properly granted summary judgment in favor of defendant Camp on a claim for breach of duty of loyalty arising from defendant leaving plaintiff's employment and starting a rival company, because plaintiff failed to establish that any independent tort for breach of duty of loyalty exists under our state law.</block_quote> <bold>3. Wrongful Interference — interference with prospective advantage —</bold> <bold>employees founding rival business</bold> <block_quote> The trial court properly granted summary judgment in favor of defendants Camp and MCC on a claim for tortious interference with prospective advantage arising from defendant Camp leaving<page_number>Page 648</page_number> plaintiff's employment and starting a rival business publishing employment newsletters, because: (1) there is no evidence that defendant Camp induced KFI into entering a contract; and (2) plaintiff employer offers no evidence showing that but for defendant Camp's alleged interference, a contract with KFI would have ensued.</block_quote> <bold>4. Unfair Trade Practices — employee founding rival business — no fiduciary</bold> <bold>relationship — no egregious or aggravating conduct</bold> <block_quote> The trial court properly granted summary judgment in favor of defendants Camp and MCC on a claim for unfair and deceptive trade practices under N.C.G.S. § <cross_reference>75-1.1</cross_reference> arising from defendant Camp leaving plaintiff's employment and starting a rival business, because: (1) defendant Camp did not have a fiduciary relationship with plaintiff employer when defendant's duties as a production manager for plaintiff were limited to those commonly associated with any employee; (2) defendant Camp did not serve his employer in the capacity of either a buyer or a seller, nor did he serve in any alternative capacity suggesting that his employment was such that it otherwise qualified as "in or affecting commerce"; and (3) there is no evidence of attendant circumstances to indicate that defendant Camp's conduct was especially egregious or aggravating.</block_quote>