Volume 356 — North Carolina Reports

<bold>Declaratory Judgments — constitutionality of criminal statute</bold> <bold>— jurisdiction</bold> <block_quote> The trial court had jurisdiction to grant a declaratory judgment determining the constitutionality of the cruelty to animals statute, N.C.G.S. § <cross_reference>14-360</cross_reference>, prior to prosecution where the district attorney notified plaintiff that he considered plaintiff's annual pigeon shoot to be a violation of the statute. The case presents an actual controversy between parties with adverse interests and plaintiff sufficiently alleged imminent prosecution and that he stands to lose fundamental human rights and property interests if the statute is enforced and is later determined to be unconstitutional.</block_quote>

<bold>Premises Liability — trip and fall — depression in pavement — obvious</bold> <bold>defect — contributory negligence</bold> <block_quote> A decision of the Court of Appeals holding that a jury question was presented on the issue of contributory negligence in an action against an auto dealer by a customer who tripped and fell when she stepped into a depression in the dealer's parking lot while looking for her repaired auto is reversed for the reasons stated in the dissenting opinion that plaintiff was contributorily negligent as a matter of law in failing to discover and avoid an obvious defect.</block_quote>

<bold>Appeal and Error; Medical Malpractice — Rule 9(j) certification</bold> <bold>requirements — constitutionality improperly considered</bold> <block_quote> The certification requirements of Rule of Civil Procedure 9(j) apply only to medical malpractice cases in which the plaintiff seeks to prove that the defendant's conduct breached the requisite standard of care and do not apply to res ipsa loquitur claims. Therefore, where plaintiff asserted a medical malpractice claim based solely on res ipsa loquitur, the certification requirements of Rule 9(j) were not implicated, and the Court of Appeals erred in addressing the constitutionality of Rule 9(j) in this case.</block_quote>

<bold>1. Jury-selection — capital trial — qualification for both</bold> <bold>phases</bold> <block_quote> An assignment of error in a first-degree murder prosecution concerning potential jurors with reservations about the death penalty was not restricted to the sentencing proceeding even though defendant raised it in that context. A trial court may not select a panel for the guilt-innocence phase with the understanding that different jurors will be substituted at sentencing.</block_quote> <bold>2. Jury-selection — capital trial — reservations about death</bold> <bold>penalty — inconsistent answers</bold> <block_quote> The trial court did not abuse its discretion in a capital first-degree murder prosecution by excusing for cause a prospective juror whose answers were inconsistent but who could not state that he would follow the law if the evidence were circumstantial.</block_quote> <bold>3. Jury-selection — capital trial — reservations about death</bold> <bold>penalty — unalterable views</bold> <block_quote> The trial court did not abuse its discretion in a capital first-degree murder prosecution by excusing a potential juror for cause where she was unalterably opposed to the death penalty. Mere opposition does not disqualify a juror who can set aside her personal beliefs and follow the law; in this case, the court asked an additional question to determine that the opposition was unalterable.</block_quote><page_number>Page 491</page_number> <bold>4. Jury-selection — capital trial — reservations about death</bold> <bold>penalty — equivocal answers</bold> <block_quote> The trial court did not abuse its discretion in a capital first-degree murder prosecution by excusing a potential juror for cause where the juror's responses on the death penalty were arguably equivocal, but his final answer indicates that the court properly interpreted his answers as unambiguous opposition to the death penalty regardless of the law or the evidence.</block_quote> <bold>5. Evidence — prior crimes or acts — prior murder —</bold> <bold>admissible</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by admitting evidence of a prior murder where the court carefully studied the substance of the evidence, reviewed the applicable law, considered the arguments of counsel, determined that the probative value was not substantially exceeded by unfair prejudice, determined that the evidence was tendered to establish the permissible factors that defendant killed this witness to silence her, and gave limiting instructions.</block_quote> <bold>6. Evidence — murder prosecution — gang membership —</bold> <bold>not prejudicial</bold> <block_quote> There was no prejudicial error in a capital first-degree murder prosecution in an officer's testimony that this case was assigned to a "gang unit" where the attorneys and judge mistakenly thought that the door had been opened, but the witness made only a single brief reference and there was no indication that the outcome of the trial would have been any different without the testimony.</block_quote> <bold>7. Evidence — gang nickname and involvement — not prejudicial</bold> <block_quote> In light of evidence of defendant's guilt, there was no prejudicial error in a first-degree murder prosecution from evidence about defendant's gang nickname, testimony that a witness was afraid of defendant's friends, testimony that the victim was in a gang with defendant, testimony that a cellmate did not like to sleep with defendant in the room, and testimony that an EMT first saw defendant in a group which the EMT thought may have been up to no good.</block_quote><page_number>Page 492</page_number> <bold>8. Constitutional Law — effective assistance of counsel —</bold> <bold>concession of guilt — Harbison waiver-not conditional —</bold> <bold>insanity plea not pursued — concession still valid</bold> <block_quote> The trial court in a capital first-degree murder prosecution was justified in assuming that a Harbison waiver remained valid throughout the trial where the waiver was given in anticipation of an insanity plea, defendant's opening argument admitted possible participation but argued insanity, and the insanity plea was not pursued after the prosecution revealed new evidence during the trial. Defendant did not expressly or impliedly condition his consent to acknowledge guilt upon presentation of an insanity defense and never formally withdrew his plea.</block_quote> <bold>9. Discovery — criminal-statement revealed during trial — no</bold> <bold>sanctions</bold> <block_quote> The trial court did not err during a capital first-degree murder prosecution by not imposing sanctions where the State revealed a statement during trial which defendant suggested would have changed the decision to enter an insanity plea. Defendant received the substance of this statement through another statement that was provided to defendant, and no Brady violation occurred.</block_quote> <bold>10. Criminal Law — prosecutor's argument — impact on murder</bold> <bold>victim's family</bold> <block_quote> The trial court in a capital first-degree murder prosecution did not abuse its discretion by overruling defendant's objection to the prosecutor's comments about the 16-year-old victim's age, her expression, the fact that her parents are left with only photographs and memories, and his speculation that the victim may have married and had children. The life the prosecutor posited for the victim was a conventional one.</block_quote> <bold>11. Criminal Law — prosecutor's argument — vouching for</bold> <bold>another prosecutor</bold> <block_quote> There was no prejudicial error in a capital first-degree murder prosecution where the prosecutor in his closing argument came perilously close to vouching for another prosecutor, but abandoned the argument after defendant's objection, even though the objection was overruled.</block_quote><page_number>Page 493</page_number> <bold>12. Criminal Law — prosecutor's argument — prior murder</bold> <bold>victim raped</bold> <block_quote> There was no error in a capital first-degree murder prosecution where the prosecutor suggested in his closing argument that a prior murder victim had been raped. The prosecutor's argument was triggered by defendant's cross-examination of a witness, the focus of the prosecutor's argument was on information from the witness that was not known to the public, and the argument represented a permissible inference of motive rather than an appeal to passion.</block_quote> <bold>13. Criminal Law — prosecutor's argument — acquittal putting</bold> <bold>others at risk</bold> <block_quote> There was no prejudicial error in a capital first-degree murder prosecution in light of the evidence of defendant's guilt where the prosecutor improperly argued that an acquittal would put others at risk, but the improper comment consisted of a single sentence and was abandoned immediately.</block_quote> <bold>14. Sentencing — capital — aggravating circumstance —</bold> <bold>course of conduct — instruction</bold> <block_quote> There was plain error in a capital sentencing proceeding where the court's instruction on course of conduct allowed the jury to find the aggravating circumstance based on a prior murder without finding that the past and present murders were part of a course of conduct.N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(11).</block_quote> <bold>15. Sentencing-capital — aggravating circumstances —</bold> <bold>overlapping</bold> <block_quote> There was sufficient evidence in a capital sentencing proceeding to support the overlapping aggravating circumstances that the murder was committed to avoid arrest and that the murder was part of a course of conduct. Each circumstance was offered for a different purpose and there was separate and substantial evidence to support each circumstance individually. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(11), N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(4).</block_quote>

<bold>1. Drugs — felonious possession of drug paraphernalia —</bold> <bold>nonexistent crime</bold> <block_quote> A charge of felonious possession of drug paraphernalia is not supported by any statute. Therefore, an indictment for felonious possession of drug paraphernalia was facially invalid, the trial court never had jurisdiction over this charge, and defendant's conviction for felonious possession of drug paraphernalia is void and is vacated.</block_quote> <bold>2. Sentencing — guilty plea and sentence set aside — greater</bold> <bold>sentence after trial — statutory violation</bold> <block_quote> After defendant's plea of guilty of attempted possession of cocaine and his sentence of 101 to 131 months were set aside pursuant to his motion for appropriate relief, a sentence of 135 to 175 months imposed upon defendant's conviction at trial for attempted possession of cocaine was contrary to the mandate of N.C.G.S. § <cross_reference>15A-1335</cross_reference> that a defendant whose sentence has been successfully challenged cannot receive a more severe sentence for the same offense or conduct on remand. The fact that defendant's original conviction resulted from a negotiated plea rather than a finding of guilt by a jury is of no consequence.</block_quote>