Volume 355 — North Carolina Reports

<bold>1. Confessions and Incriminating Statements — allegations of</bold> <bold>harassment, threats, promises — contradictory law enforcement</bold> <bold>testimony — denial of motion to suppress</bold> <block_quote> The trial court did not err in a capital first-degree murder prosecution by denying defendant's motion to suppress statements to investigators where defendant alleged that he was threatened, harassed, and told that he could avoid the death penalty by confessing, but there was contradictory testimony from law enforcement officers. The trial court's finding of fact that no promises or offers of reward were made was supported by competent evidence in the record, and the court's conclusion that defendant's statement was voluntary is supported by the finding of fact and the law.</block_quote><page_number>Page 74</page_number> <bold>2. Jury — selection capital trial — rehabilitation questions</bold> <bold>— excusal of prospective juror</bold> <block_quote> The trial court did not abuse its discretion during jury selection for a capital first-degree murder prosecution by sustaining the State's objections to three questions during defendant's attempted rehabilitation of a prospective juror or by excusing that juror. The three questions did not address the issue of whether the prospective juror would be able to return a death verdict under any circumstances and the court properly excused her when she stated unequivocally that she could never return a death sentence.</block_quote> <bold>3. Evidence — hearsay — explanation of subsequent actions</bold> <block_quote> The trial court did not err in a capital prosecution for first-degree murder by admitting testimony from the victim's father that someone had telephoned him to say that his son's car would be in a particular place at a particular time where the testimony was admitted not for the truth of the matter asserted, but to explain the action of the witness and the deputies in staking out that location the next morning.</block_quote> <bold>4. Appeal and Error; Constitutional Law — Confrontation Clause</bold> <bold>— nonhearsay testimony</bold> <block_quote> A first-degree murder defendant's contention that the introduction of testimony about an anonymous telephone call to his father violated his constitutional right to confrontation was not properly before the Supreme Court where defendant objected at trial only on the basis of hearsay, and this testimony was proper nonhearsay evidence. Nonhearsay raises no Confrontation Clause concern.</block_quote> <bold>5. Evidence — expert testimony — firearms identification</bold> <bold>— admissible</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by admitting the testimony of an SBI agent regarding two bullets found in the victim, despite defendant's contention that the testimony was based on speculation, where the agent was received without objection as an expert in firearms identification and the agent tested the bullets about which he provided an opinion.</block_quote><page_number>Page 75</page_number> <bold>6. Robbery — sufficiency of evidence — killing victim and</bold> <bold>taking car</bold> <block_quote> The evidence was sufficient to permit a rational jury to find that defendant robbed the victim with a dangerous weapon where defendant admitted that he called the victim and arranged to meet him; defendant and a friend waited for the victim and pulled a gun when he arrived; the victim was forced into his car with a gun to his head; the friend shot the victim and defendant decided to shoot him twice in the head when he heard him gasping for breath and calling for help; and defendant drove the victim's car until he was apprehended.</block_quote> <bold>7. Robbery — taking car after victim killed — continuous</bold> <bold>transaction with murder — sufficiency of evidence</bold> <block_quote> The evidence was sufficient to permit a rational jury to find that the victim's murder and the act of stealing his car were so connected as to form a continuous chain of events and to support defendant's conviction of armed robbery where the victim was lured to a church so that defendant and a friend could forcibly take his car; the victim was killed soon after; and defendant claimed the car as his own and used the car in a manner suggesting ownership, driving the car until the day he was apprehended.</block_quote> <bold>8. Kidnapping — confinement not inherent in murder —</bold> <bold>sufficiency of evidence</bold> <block_quote> The trial court did not err by refusing to dismiss a first-degree kidnapping charge for insufficient evidence that the kidnapping was separate from the killing where the victim was lured to a meeting; defendant put a gun to the victim's head and forced him to drive his own car to another location, where he was taken into the woods; he was shot when he tried to get away; the victim was alive when he was placed in the trunk of the car; and he cried out for help before defendant fired the fatal shots. There was ample evidence of confinement not inherent in the first-degree murder.</block_quote> <bold>9. Homicide — first-degree murder — second-degree not</bold> <bold>submitted — evidence of premeditation and deliberation</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by denying defendant's request for submission of second-degree murder as a possible verdict where defendant presented no evidence; and the State's evidence showed that the victim was<page_number>Page 76</page_number> shot six times, that defendant deliberately walked to a car after the victim was wounded to retrieve a gun, that defendant shot the victim twice when he was helpless and crying for help, and that defendant dragged the body into the woods, covered it with leaves and branches, and immediately disposed of the murder weapon and the comforter in which the body had been wrapped. Defendant and an accomplice had talked about stealing the victim's car before the date of the murder and defendant had expressed both before and after the murder his plan to move to California and change his identity.</block_quote> <bold>10. Homicide — instruction on second-degree murder denied —</bold> <bold>possibility that jury might not believe all of the State's evidence</bold> <block_quote> A first-degree murder defendant was not entitled to an instruction on second-degree murder upon the argument that the jury had to pick and choose between pieces of evidence in order to convict of second-degree murder. A defendant is not entitled to an instruction on a lesser-included offense merely because the jury could possibly believe some of the State's evidence but not all of it.</block_quote> <bold>11. Constitutional Law — argument of counsel — concession of</bold> <bold>guilt — effective assistance of counsel</bold> <block_quote> There was no error in a capital prosecution for first-degree murder where defendant contended that his counsel made concessions of guilt where counsel merely argued that defendant was guilty as an accessory after the fact if he was guilty of anything. Defendant took counsel's statements out of context and failed to note the consistent theory of the defense that defendant was not guilty.</block_quote> <bold>12. Kidnapping — bases of charge — "and" or "or"</bold> <block_quote> There was no plain error in a first-degree kidnapping prosecution where the indictment alleged failure to release in a safe place "and" serious injury while the court's instructions joined the phrases with "or." There is no evidence that the jury erroneously considered the charge and, in reality, only one of the two bases was necessary for the State to convict defendant of first-degree kidnapping.</block_quote><page_number>Page 77</page_number> <bold>13. Kidnapping — first-degree — restraint or removal in</bold> <bold>instruction — confinement in indictment</bold> <block_quote> There was no plain error in a first-degree kidnapping prosecution where the jurors were instructed on "restraint or removal" of the victim, while the indictment asserted confinement. The evidence and defendant's own admission make it clear that the victim was confined, restrained, and removed and there was no reasonable basis for concluding that any different combination of the terms in the instruction would have altered the result.</block_quote> <bold>14. Criminal Law — contact between prosecutor's lunch companion and</bold> <bold>jurors — mistrial denied</bold> <block_quote> The trial court did not abuse its discretion in a capital first-degree murder prosecution by overruling defendant's motion for a mistrial based on asserted improper contact between two jurors and an individual having lunch with the district attorney. The individual told the court that she was a law student having lunch with a friend who worked in the district attorney's office, that she had attended high school with the two jurors and defendant, and that her interaction with the jurors was limited to telling them that she was in law school and was married. Defendant's trial counsel conceded that he did not believe that the contact was improper.</block_quote> <bold>15. Appeal and Error — preservation of issues — failure to</bold> <bold>object at trial — failure to assign plain error</bold> <block_quote> There was no error in a capital first-degree murder prosecution in the submission of the aggravating circumstance that the murder was committed during the commission of a kidnapping where defendant alleged that there was insufficient evidence of first-degree kidnapping, but did not object at trial based on the insufficiency of the evidence and failed to specifically and distinctly assign plain error.</block_quote> <bold>16. Sentencing — capital — aggravating circumstances —</bold> <bold>murder committed during kidnapping — murder committed for</bold> <bold>pecuniary gain — independent evidence</bold> <block_quote> The trial court did not err in a capital sentencing proceeding by submitting the aggravating circumstances that the murder was committed during a kidnapping and that the murder was committed for pecuniary gain where defendant argued that the jury was allowed to find both circumstances based upon the same evidence.<page_number>Page 78</page_number> There was ample independent evidence supporting each circumstance in that the victim was lured to a meeting and was several times restrained, confined, and moved from place to place; the underlying motive was the theft of the victim's car; and defendant took the car and used it as his own after the victim was killed.</block_quote> <bold>17. Appeal and Error — preservation of issues — failure to</bold> <bold>object at trial — failure to assign plain error</bold> <block_quote> The defendant in a capital prosecution for first-degree murder did not preserve for appeal the issue of whether there was sufficient evidence of robbery to support the pecuniary gain aggravating circumstance where he made no objection at trial as to the sufficiency of the evidence and did not specifically and distinctly assign plain error.</block_quote> <bold>18. Sentencing — capital — use of same evidence for more than</bold> <bold>one circumstance — no instruction</bold> <block_quote> There was no error in a capital sentencing proceeding where defendant contended that the court should have instructed the jury that it should not rely on the same evidence to support more than one aggravating circumstance, but the instruction was not necessary because there was distinct and separate evidence supporting both circumstances submitted. Furthermore, defendant did not request the instruction, did not object to the trial court's failure to instruct, did not assign error to the failure to give the instruction, and did not distinctly alleged plain error.</block_quote> <bold>19. Sentencing — capital — mitigating circumstance — no</bold> <bold>significant history of prior criminal activity — evidence</bold> <bold>insufficient</bold> <block_quote> The trial court did not err in a capital sentencing proceeding by denying defendant's request to submit the mitigating circumstance that defendant had no significant history of prior criminal activity where some of defendant's witnesses indicated that defendant had not been in "bad trouble" and had not been involved with illegal drugs, but defendant offered no evidence of his criminal record. Defendant had the burden of establishing that he had no significant criminal history and did not do so. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(1).</block_quote><page_number>Page 79</page_number> <bold>20. Sentencing — capital — mitigating circumstances —</bold> <bold>mental disturbance — sufficiency of evidence</bold> <block_quote> The trial court did not err in a capital sentencing proceeding by denying defendant's request that the court submit the (f)(2) statutory mitigating circumstance that the crime was committed under the influence of mental or emotional disturbance. Defendant presented no evidence that he acted under the influence of a mental or emotional disturbance at the time of the murder and his expert witness, who testified that defendant suffered from personality disorders, admitted that he had reservations about his opinions because defendant had not cooperated with the evaluation. A trial court is not required to submit a mitigating circumstance unless there is substantial evidence to support it. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(2).</block_quote> <bold>21. Sentencing — capital — mitigating circumstances —</bold> <bold>impaired capacity — sufficiency of evidence</bold> <block_quote> The trial court did not err in a capital sentencing proceeding by denying defendant's request to submit the mitigating circumstance of impaired capacity where defendant's expert testified that defendant suffered from mixed personality disorder but knew what the act of murder was, and further testified that his evaluation was not reliable because defendant would not tell him anything about the date of the murder. Defendant's statements to officers, his actions in organizing the crime, and his actions after the killing indicate that he was aware that his actions were criminal. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(6)</block_quote> <bold>22. Sentencing — capital — mitigating circumstances —</bold> <bold>defendant's age — sufficiency of evidence</bold> <block_quote> The trial court did not err in a capital sentencing proceeding by denying defendant's request for submission of the mitigating circumstance of defendant's age where defendant cited no evidence to support his assertion and there was testimony that defendant had graduated from high school without repeating grades, that he had a stable work history, and that he was the father of five children. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(7)</block_quote> <bold>23. Sentencing — capital — nonstatutory mitigating</bold> <bold>circumstances — peremptory instructions given as a group</bold> <block_quote> The trial court did not err in a capital sentencing proceeding by giving peremptory instructions on nonstatutory mitigating circumstances as a group rather than by repeating the instruction<page_number>Page 80</page_number> for each circumstance. The trial court went through each of the nonstatutory mitigating circumstances during the trial conference, the court instructed the jury that circumstances "two through seven" existed as the predicate instruction for each of the nonstatutory circumstances, and defendant failed to object at trial when given the opportunity to do so after the instructions were given. Any possible error from failing to repeat the instruction six times was harmless.</block_quote> <bold>24. Appeal and Error — preservation of issues — failure to</bold> <bold>object to issues and recommendation as to punishment form</bold> <block_quote> The Supreme Court did not consider the argument of a first-degree murder defendant that the court did not properly set forth nonstatutory mitigating circumstances on the form for Issues and Recommendation as to Punishment where defendant indicated to the trial court that he had no objections to the form.</block_quote> <bold>25. Sentencing — capital — instructions — statutory and</bold> <bold>nonstatutory mitigating circumstances</bold> <block_quote> The oral instructions given by the trial court, in conjunction with the distinction between the statutory and nonstatutory mitigating circumstances on the issues and recommendation as to punishment form, were sufficient to provide proper instruction for the jurors.</block_quote> <bold>26. Sentencing — capital — instructions — life</bold> <bold>imprisonment without parole</bold> <block_quote> The trial court's instructions in a capital sentencing proceeding, in conjunction with the trial court's response to a jury question, were both clear and consistent with the statutory requirement for the meaning of the term "life imprisonment." Furthermore, the plain meaning of the term suggests that defendant will spend the rest of his life in prison, and the jurors heard "life imprisonment without parole" numerous times. Finally, defendant made no objection at trial and, in a discussion with the court, confirmed that the court had informed the jurors that "life imprisonment means life imprisonment without parole."</block_quote> <bold>27. Sentencing — capital — nonstatutory mitigating</bold> <bold>circumstances — rejection by jury not arbitrary</bold> <block_quote> The rejection by the jury of the nonstatutory mitigating circumstances that defendant had demonstrated love and affection<page_number>Page 81</page_number> to certain relatives and that his behavior was impaired by professionally diagnosed emotional or mood disorders did not result in an arbitrary death penalty because the jury is free to find that a nonstatutory circumstance does not have mitigating value even if the evidence is uncontradicted.</block_quote> <bold>28. Constitutional Law — effective assistance of counsel —</bold> <bold>failure to object</bold> <block_quote> The defendant in a capital sentencing proceeding did not demonstrate that his counsel was ineffective in failing to object to alleged errors regarding the admission of statements, jury instructions, and verdict sheets where the alleged errors were without merit, defense counsel's failure to object cannot be said to fall below an objective standard of reasonableness, and the evidence of guilt was overwhelming.</block_quote> <bold>29. Sentencing — capital — proportionality</bold> <block_quote> A death sentence was proportionate where the record fully supported the aggravating circumstances found by the jury, there was no indication that the sentence was imposed under the influence of passion, prejudice, or other arbitrary factors, this case is distinguishable from those cases in which the North Carolina Supreme Court concluded that the death penalty was disproportionate, and this case is more similar to certain cases in which a death sentence was found proportionate than to those in which it was found disproportionate or to those in which juries have consistently returned recommendations of life imprisonment. Moreover, it was noted that similarity is not the last word on proportionality, which ultimately rests upon the judgment of the Court.</block_quote>

<bold>1. Jury — selection — capital trial — death penalty</bold> <bold>views — challenge for cause — assessment of judge</bold> <block_quote> The trial court did not abuse its discretion in a capital trial for first-degree murder by excluding a prospective juror based upon her responses to death penalty questions where the prospective juror expressed a straightforward, religion-based opposition to the death penalty, gave further equivocal answers about following the law, and continued to state that her religious beliefs would impair her ability to be a fair juror. The judge gave counsel wide latitude during a lengthy questioning period, asked questions himself, assessed the prospective juror's responses for the overall effect, and made a decision based on his firsthand impressions.</block_quote> <bold>2. Jury — selection — capital trial — death penalty</bold> <bold>views — firm opinions opposing — rehabilitation denied</bold> <block_quote> The trial court did not abuse its discretion in a capital prosecution for first-degree murder when it denied defendant the opportunity to question a juror who was excused for cause. The potential juror's answers to general questions about capital punishment consistently reflected both her opposition to the death penalty and a steadfast recalcitrance towards imposing it, the transcript reveals nothing that indicates any inclination to alter or soften her views, and defendant did not proffer any arguments suggesting that his questions might produce different answers.</block_quote> <bold>3. Criminal Law — instructions — reasonable doubt —</bold> <bold>more than an academic doubt</bold> <block_quote> There was no plain error in a capital first-degree murder prosecution in the trial court's instruction defining reasonable doubt as not being an "academic" doubt. Defendant's argument has been rejected consistently.</block_quote> <bold>4. Trials — closing arguments — standards</bold> <block_quote> A lawyer's function during closing argument is to provide the jury with a summation of the evidence. The argument should be<page_number>Page 118</page_number> limited to relevant legal issues and the standards articulated in N.C.G.S. § <cross_reference>15A-1230</cross_reference>(a) are applicable to civil as well as criminal cases. The attorney may not become abusive, express his personal belief as to the truth or falsity of the evidence, express his personal belief as to which party should prevail, or make arguments premised on matters outside the record. Trial judges have a two-fold responsibility as overseers of the courts to diligently ensure that attorneys honor their professional obligations and to take appropriate action against opportunists who purposely venture to violate courtroom protocol. Moreover, bearing in mind the reluctance of counsel to interrupt and object during closing argument for fear of incurring jury disfavor, it is incumbent on the trial court to monitor vigilantly the course of arguments, to intervene as warranted, to entertain objections, and to impose remedies pertaining to those objections, including requiring the attorneys to retract improper arguments and instructing the jury to disregard such arguments.</block_quote> <bold>5. Sentencing — capital — prosecutor's closing argument</bold> <bold>— invocation of Columbine and Oklahoma City</bold> <block_quote> The trial court in a capital sentencing proceeding abused its discretion by allowing a closing argument which linked the tragedy of the victim's death to the tragedies of Columbine and Oklahoma City. The argument was improper because it referred to events and circumstances outside the record, urged jurors by implication to compare defendant's acts with the infamous acts of others, and attempted to lead jurors away from the evidence by appealing instead to their sense of passion and prejudice.</block_quote> <bold>6. Sentencing — capital — prosecutor's argument —</bold> <bold>defendant lower than dirt on a snake — improper</bold> <block_quote> The prosecutor's closing argument in a capital sentencing proceeding was grossly improper and prejudicial where the prosecutor said of defendant, "You got this quitter, this loser, this worthless piece of — who's mean. . .He's as mean as they come. He's lower than the dirt of a snake's belly." The prosecutor's repeated degrading comments about defendant shifted the focus from the jury's opinion of defendant's character and acts to the prosecutor's opinion, offered in the form of conclusory name-calling, and were purposely intended to deflect the jury from its proper role as fact-finder by appealing to passion and prejudice.</block_quote><page_number>Page 119</page_number> <bold>7.Sentencing — capital — prosecutor's argument —</bold> <bold>improper — standards</bold> <block_quote> The trial court abused its discretion by allowing a prosecutor undue latitude in a capital sentencing proceeding. An improper argument that was not prejudicial at the guilt phase may be prejudicial during a capital sentencing proceeding, which by its nature involves evidence of defendant's character. It is appropriate for the closing argument in a capital sentencing proceeding to incorporate reasonable inferences and conclusions about defendant drawn from the evidence presented, but conclusory arguments that are not reasonable or that are premised on matters outside the record (such as the name calling and comparisons to infamous acts in this case) cannot be countenanced. An argument must be devoid of counsel's personal opinion, avoid name calling and references to matters beyond the record, be premised on logical deductions rather than appeals to passion or prejudice, and be constructed from fair inferences drawn only from evidence properly admitted at trial.</block_quote>

<bold>Constitutional Law — right to counsel — waiver — motion</bold> <bold>to suppress prior convictions</bold> <block_quote> The trial court did not err in a felony possession of stolen goods case by denying defendant's motion to suppress prior convictions under N.C.G.S. § <cross_reference>15A-980</cross_reference> used in finding defendant to be an habitual felon based on its conclusion that defendant waived his right to counsel for the 1993 Rockingham County conviction, because: (1) the findings of fact were sufficient to indicate that the trial court considered the necessary factors under N.C.G.S. § <cross_reference>7A-457</cross_reference> in determining whether defendant had knowingly, intelligently, and voluntarily waived his right to counsel including defendant's age, education, and mental state at the time he signed the waiver; (2) defendant's statements indicated that he knew that he was charged with two felonies and that the assistant district attorney was offering to drop only one of those felonies in exchange for a plea to the other felony and probation, and defendant stated he did not need an attorney in order to avail<page_number>Page 172</page_number> himself of this offer; (3) defendant admitted knowing what his rights were and clearly and unequivocally expressed his desire not to have an attorney represent him; (4) the fact that defendant was seventeen years old with a ninth-grade education is not enough, absent other evidence, to conclude that defendant was unable to understand the nature and consequences of the proceedings against him or the decision that he made regarding waiver of counsel; and (5) defendant's signature on the waiver of counsel form combined with his testimony in which he stated multiple times that he did not wish to have an attorney represent him, and the fact that defendant signed a transcript of plea in 1993 acknowledging that he understood his rights, the charges against him, and that he was pleading guilty to a felony, provides added evidence that defendant knowingly, intelligently, and voluntarily waived counsel.</block_quote>

<bold>1. Medical Malpractice — certification — interplay of Rules</bold> <bold>9(j) and 15</bold> <block_quote> It was not necessary to discuss the interplay between N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rules 9(j) and 15 in an action involving the required certification for filing a medical malpractice action where the trial court dismissed the action for failure to comply with Rule 9(j) and did not base its ruling on the interaction of the two rules. Brisson v. Kathy A. Santoriello, M.D., P.A., <cross_reference>351 N.C. 589</cross_reference>, is distinguished.</block_quote> <bold>2. Medical Malpractice — certification — added to amended</bold> <bold>complaint — improper</bold> <block_quote> The trial court correctly dismissed a medical malpractice complaint for failure to comply with N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 9(j) where plaintiff requested and received a 120-day extension to comply with the certification mandate on the day before the statute of limitations would have expired, filed her complaint without the certification, and filed an amended complaint which included the certification after the statute of limitations had expired. The specific mandate of Rule 9(j) prevails over other general rules; permitting amendment of a complaint to add the expert certification where the expert review occurred after the suit was filed would conflict with the clear intent of the legislature.</block_quote> <bold>3.Medical Malpractice — certification — amended complaint</bold> <bold>— allegation that review occurred before original complaint</bold> <bold>— required</bold> <block_quote> An amended medical malpractice complaint which failed to allege that review of the medical care took place before the filing of the original complaint did not satisfy the certification requirements of N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 9(j). Allowing a plaintiff to file a medical malpractice complaint and then wait until after the filing to have the allegations reviewed by an expert would pervert the purpose of Rule 9(j).</block_quote><page_number>Page 199</page_number>

<bold>1. Premises Liability — injury from contact with power line</bold> <bold>— directed verdict — judgment notwithstanding the verdict</bold> <block_quote> The trial court did not err by denying defendant motion-picture studio owner's motions for directed verdict and judgment notwithstanding the verdict on the issue of defendant's negligence in a case where plaintiff carpenter came into contact with uninsulated energized power lines while working on defendant's premises to build a film set, because: (1) defendant's retention of substantial authority over the use of its property, taken together<page_number>Page 466</page_number> with its active involvement in the film production company's daily routines, placed upon defendant a concomitant duty to exercise reasonable care to ensure that the production company's employees including plaintiff were not injured by coming into contact with uninsulated power lines running over the back lot; (2) defendant had a duty to exercise such reasonable care as a landowning proprietor, running a motion-picture studio while maintaining a significant degree of control over the daily operations of its licensees, would exercise under the circumstances; (3) given the evidence to the jury concerning the nature and use of the property, the knowledge of defendant through its facility manager of the set conditions, and the available alternatives, there was sufficient evidence to submit to the jury the question of whether defendant was negligent in causing plaintiff's injuries; (4) defendant has not been held to a strict-liability standard since defendant's liability was based upon the particular facts of the case, including defendant's awareness that the film production employees would be working within the power-line easement and defendant's failure to take reasonable steps to protect plaintiff; and (5) it was not unforeseeable as a matter of law that the type of injury plaintiff sustained would result from defendant's alleged negligence.</block_quote> <bold>2. Premises Liability — contributory negligence — injury from</bold> <bold>contact with power line — directed verdict — judgment</bold> <bold>notwithstanding the verdict</bold> <block_quote> The trial court did not err by denying defendant motion-picture studio owner's motions for directed verdict and judgment notwithstanding the verdict on the issue of plaintiff carpenter's contributory negligence in a case where plaintiff came into contact with uninsulated energized power lines while working on defendant's premises to build a film set, because: (1) while the general rule is that a person has a legal duty to avoid open and obvious dangers including contact with an electrical wire he knows to be dangerous, that does not mean that a person is guilty of contributory negligence as a matter of law if he contacts a known electrical wire regardless of the circumstances and regardless of any precautions he may have taken to avoid the mishap; and (2) the jury properly considered and resolved the conflicting evidence to reach a verdict as to contributory negligence.</block_quote><page_number>Page 467</page_number>

<bold>1. Homicide — first-degree murder — short-form indictment</bold> <bold>— constitutionality</bold> <block_quote> The trial court did not err by concluding that the short-form indictment used to charge defendant with first-degree murder was constitutional even though it did not allege that the murder was committed either in the course of a felony or with premeditation and deliberation.</block_quote> <bold>2. Criminal Law — shackling of defendant's legs — reasonably</bold> <bold>necessary</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder, attempted first-degree murder, and robbery with a dangerous weapon case by ordering over defendant's objection that defendant remain shackled by the legs during the trial, because: (1) records showed that defendant had numerous instances of<page_number>Page 720</page_number> misconduct while in jail awaiting trial; (2) immediately prior to trial, defendant began fighting with officers when defendant discovered that contraband in his possession had been confiscated; (3) such restraint was reasonably necessary to maintain order and to provide for the safety of persons; (4) defendant's past disregard for order and the safety of others while in custody is a reasonable indicator that defendant may exhibit the same conduct during trial; (5) an incident requiring six people to forcefully subdue defendant occurred a mere twelve days prior to the hearing in question; (6) the trial court considered the factors listed in the Tolley case; (7) the leg shackles were not visible to the jury; and (8) defendant cites to nothing in the record suggesting that defendant was impaired by the restraint, and the trial court indicated that the initial ruling would be reconsidered on a daily basis.</block_quote> <bold>3. Evidence — expert testimony — whether ammunition caused</bold> <bold>injuries</bold> <block_quote> The trial court did not err in a first-degree murder, attempted first-degree murder, and robbery with a dangerous weapon case by overruling defendant's objection to testimony from the State's firearm analysis and identification expert regarding whether the ammunition he examined could have caused the murder victim's injuries, because even assuming arguendo that the pertinent portion of the testimony constituted medical testimony that was outside the expert's field of expertise, any error was harmless when: (1) the undisputed evidence showed that the shots that killed one victim and injured another were fired from the rifle; (2) the alleged improper testimony served to establish only that the rifle was the weapon that caused the injuries and in no way did the testimony imply that defendant was the man who fired the rifle; and (3) defendant cannot show that there is a reasonable possibility that a different result would have been reached at trial absent this testimony.</block_quote> <bold>4. Evidence — double hearsay — admission of statement</bold> <bold>harmless error</bold> <block_quote> Although defendant contends the trial court violated his right of confrontation in a first-degree murder and attempted first-degree murder sentencing proceeding by overruling defendant's objection to an SBI agent's double-hearsay testimony that one coparticipant told the agent that another coparticipant said defendant was the shooter, any alleged violation<page_number>Page 721</page_number> was harmless because: (1) the jury had already determined beyond a reasonable doubt during the guilt-innocence phase that defendant fired the rifle; (2) the jury had earlier heard similar testimony; and (3) no reasonable probability exists that this double-hearsay statement affected the outcome of the sentencing proceeding.</block_quote> <bold>5. Sentencing — capital — mitigating circumstances —</bold> <bold>minor participation — refusal to submit — premediation and</bold> <bold>deliberation — insufficient additional evidence at sentencing</bold> <bold>— harmless error</bold> <block_quote> The trial court's ruling that it would not submit the mitigating circumstance that "the murder was actually committed by another person" was in effect a refusal to submit the statutory mitigating circumstance that "defendant was an accomplice in or accessory to the capital felony committed by another person and his participation was relatively minor," N.C.G.S. <cross_reference>15A-2000</cross_reference>(f)(4). The trial court did not err by refusing to submit the (f)(4) mitigating circumstance because (1) it was held in State v. Roseboro, <cross_reference>351 N.C. 536</cross_reference> (2000) that this circumstance is inapplicable where the defendant was convicted of premeditated and deliberate murder and (2) even if the Court were to hold that the Roseboro rule did not apply where additional evidence was presented at the sentencing hearing, defendant's own statement introduced at sentencing showed that his participation was not minor. Furthermore, any error in the trial court's refusal to submit the (f)(4) mitigating circumstance was harmless because, in finding defendant guilty of premeditation and deliberation, the jury found beyond a reasonable doubt that defendant fired a rifle at the victim, and a reasonable probability did not exist that defendant's additional evidence consisting of a self-serving statement would be sufficient to change a juror's mind as to who shot the rifle.</block_quote> <bold>6. Sentencing — capital — mitigating circumstances —</bold> <bold>initial idea by coparticipant — amendment by trial court</bold> <block_quote> In a capital sentencing proceeding for a first-degree murder committed during a robbery, defendant's proposed nonstatutory mitigating circumstance that the initial idea that resulted in the victim's death was a coparticipant's was properly amended by the trial court to state that the initial idea for the robbery was the coparticipant's in order to avoid a misinterpretation by the jury unsupported by substantial evidence.</block_quote><page_number>Page 722</page_number> <bold>7. Sentencing — capital aggravating circumstances — murder</bold> <bold>committed during robbery — murder part of a course of conduct</bold> <bold>— no double counting of evidence</bold> <block_quote> The trial court in a capital sentencing proceeding for a first-degree murder did not improperly allow the jury to use the same evidence that someone went through an attempted murder victim's pockets to support the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(5) aggravating circumstance that the murder was committed during a robbery and the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(11) aggravating circumstance that the murder was part of a course of conduct, because: (1) the robbery supported the (e)(5) aggravating circumstance while the attempted murder supported the (e)(11) aggravating circumstance; (2) defendant did not properly request a limiting instruction since he only made an oral request and N.C.G.S. § <cross_reference>15A-1231</cross_reference> provides a party may tender written instructions; and (3) even assuming error arguendo, defendant cannot show a reasonable possibility that a different result would have been reached absent this error.</block_quote> <bold>8. Sentencing — mitigating circumstances — failure to</bold> <bold>appreciate criminality of conduct</bold> <block_quote> The trial court did not err in a first-degree murder capital sentencing proceeding by failing to submit the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(6) mitigating circumstance that defendant did not appreciate the criminality of his conduct or could not conform his conduct to the requirements of law because contrary to defendant's assertions, an expert's testimony that defendant operated under a mental or emotional disturbance at the time of the murder does not show that defendant's ability to appreciate the criminality of his actions or to conform his conduct to the law was impaired, but instead was properly considered under the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(2) mitigating circumstance that the murder was committed while defendant was under the influence of a mental or emotional disturbance.</block_quote> <bold>9. Sentencing — death penalty — not disproportionate</bold> <block_quote> The trial court did not err in a first-degree murder case by sentencing defendant to the death penalty, because: (1) defendant was convicted on the basis of premeditation and deliberation and the felony murder rule; (2) a murder in the home shocks the conscience, and defendant shot the victim in the victim's home; and (3) the jury found the three aggravating circumstances<page_number>Page 723</page_number> under N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(3), (e)(5), and (e)(11), all of which standing alone have been held sufficient to support the death penalty.</block_quote>