Volume 358 — North Carolina Reports

<bold>Constitutional Law — indigent defendants — court-appointed</bold> <bold>counsel — appointment fee — constitutionality</bold> <block_quote> The appointment fee required by N.C.G.S. § <cross_reference>7A-455.1</cross_reference> in order for an indigent defendant to obtain court-appointed counsel regardless of the outcome of the criminal proceeding is a cost of prosecution that violates the language of Art. <cross_reference>I</cross_reference>, § <cross_reference>23</cross_reference> of the N.C. Constitution prohibiting the assessment of costs against acquitted defendants. However, the unconstitutional portions of the statute requiring payment of the fee "at the time of appointment" and "regardless of the outcome of the proceedings" and granting a credit to any defendant who pays the fee prior to the final determination of the action may be servered so that the rest of the statute remains enforceable and constitutionally permits the State to continue collecting the fee from indigent defendants after they have been convicted or pled guilty or nolo contendere.</block_quote>

<bold>1. Jury — voir dire — conceptions of parole</bold> <block_quote> There was no error in the denial of a capital first-degree murder defendant's motion to permit voir dire of prospective jurors about conceptions of parole eligibility for a person serving a life sentence.</block_quote> <bold>2. Jury — selection — capital trial — passage of entire panel</bold> <bold>to defendant</bold> <block_quote> The trial court did not err in a capital first-degree murder prosecution by following the method of jury selection in N.C.G.S.<page_number>Page 331</page_number> § <cross_reference>15A-1214</cross_reference>(d), under which the State is allowed to remove some prospective jurors and replace them with others before passing the entire panel to the defendant.</block_quote> <bold>3. Jury — selection — 15 member panels — randomness</bold> <block_quote> Defendant waived review of the randomness of a jury chosen from 15 member panels by not challenging them properly.</block_quote> <bold>4. Jury — selection — rehabilitation — ability of system to</bold> <bold>answer concerns — legal conclusion</bold> <block_quote> There was no abuse of discretion during jury selection for a capital first-degree murder in sustaining the State's objection to defendant's question about whether the system took into account his concerns about the strength of the evidence. The question called for a legal conclusion.</block_quote> <bold>5. Jury — selection — capital trial — excusal for cause</bold> <block_quote> The trial court did not abuse its discretion by excusing two jurors for cause during jury selection for a capital first-degree murder prosecution where one juror wavered about whether he could vote for the death penalty and eventually said that he was predisposed for life imprisonment, and the other remained unequivocal in his unwillingness to give proper weight to aggravators and in his preference for a life sentence.</block_quote> <bold>6. Evidence — statements by defendant — duplicative — relevant</bold> <bold>and admissible</bold> <block_quote> Statements by a first-degree murder defendant to medical personnel that he shot his wife and stepson and that he was drinking at the time were relevant and admissible, even if they duplicated other evidence.</block_quote> <bold>7. Appeal and Error — preservation of issues — statements to</bold> <bold>nurses — not raised at trial or in assignments of error</bold> <block_quote> A first-degree murder defendant's contention that his statements to nurses were inadmissible hearsay was not reviewed where defendant did not include that argument in his trial court motions or his assignments of error on appeal.</block_quote> <bold>8. Evidence — audiotape — properly authenticated</bold> <block_quote> An audiotape of a first-degree murder defendant arguing with his victims was properly authenticated where the tape was found in a victim's desk ten months after the murder and passed<page_number>Page 332</page_number> through several hands before coming into the custody of the district attorney's office. Testimony at a voir dire hearing was sufficient to establish the accuracy of the tape, demonstrate that it was legally obtained, and support a finding that the tape contained competent evidence of defendant's malice, intent, and ill will toward the victim.</block_quote> <bold>9. Evidence — hearsay — tape of defendant arguing with victims</bold> <bold>— offered to show malice</bold> <block_quote> An audiotape of a first-degree murder defendant arguing with his victims was not inadmissible hearsay because it was offered to show malice rather than the truth of the statements.</block_quote> <bold>10. Evidence — audiotape — defendant arguing with victims —</bold> <bold>probative value not exceeded by prejudice</bold> <block_quote> The probative value of an audiotape of a murder defendant arguing with his victims was not exceeded by its prejudice. When a husband is charged with murdering his wife, as here, evidence spanning the entire marriage has been allowed consistently to show malice, intent, and ill will.</block_quote> <bold>11. Evidence — officer's opinion — admissible</bold> <block_quote> There was no error in a first-degree murder prosecution in the admission of a police officer's opinion about which victim was shot first. The court implicitly recognized the officer to be an expert in crime scene investigation, and his experience, the nature of his job, and his personal investigation of the crime scene qualified him to offer expert testimony to demonstrate how the crime scene was found.</block_quote> <bold>12. Evidence — defendant's mental status — basis of expert's</bold> <bold>opinion</bold> <block_quote> There was no error in a capital first-degree murder prosecution in allowing an expert in forensic psychiatry to testify about an on-call physician's observations of defendant's mental state on the night of the murders, or about his own observations of defendant's mental state when he was admitted to Dorothea Dix Hospital. An expert may testify about the information he relied upon in forming his opinion so long as that information is of a type reasonably relied upon by experts in the field.</block_quote><page_number>Page 333</page_number> <bold>13. Evidence — psychiatrist's opinion — defendant's mental state</bold> <bold>at time of murder — interview one year later</bold> <block_quote> An expert in forensic psychiatry was properly allowed to render an opinion about a first-degree murder defendant's mental state at the time of the murders based upon his interviews, personal observations, and review of reports, although he did not meet defendant until more than a year after the murder.</block_quote> <bold>14. Criminal Law — prosecutor's argument — first-degree murder —</bold> <bold>alcoholism and low I.Q.</bold> <block_quote> A prosecutor's argument that the jury should not accept any attempt by defense counsel to blame defendant's murders on alcoholism or low IQ instead of his own choices was not improper.</block_quote> <bold>15. Criminal Law — prosecutor's argument — defense psychologist</bold> <block_quote> A prosecutor's argument that defendant's psychologist only noted those things useful to his client was not condoned, but there was no objection at trial and the argument was not so grossly improper that the trial court erred by not intervening ex mero moto.</block_quote> <bold>16. Sentencing — capital — aggravating circumstance — course of</bold> <bold>conduct for two murders — separate evidence for each murder</bold> <block_quote> There was no error in submitting the course of conduct aggravating circumstance in a capital sentencing proceeding for each of two murders where defendant contended that the jury must have relied on the same evidence in both crimes because both victims were killed at approximately the same time. There was separate evidence for each murder, and the jury may find this aggravating circumstance where defendant killed more than one victim. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(11).</block_quote> <bold>17. Sentencing — aggravating circumstance — especially heinous,</bold> <bold>atrocious, or cruel — family killing</bold> <block_quote> The trial court did not err by submitting the especially heinous, atrocious, or cruel circumstance in a capital sentencing proceeding for the murder of defendant's stepson where defendant killed his wife and then his stepson. This circumstance is proper when a parental relationship exists between the victim and the accused; moreover, defendant's stepson was in close proximity to the horrific murder of his mother, being<page_number>Page 334</page_number> sprayed with her blood after a shotgun blast, and he was aware of but helpless to prevent his own impending death. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(9).</block_quote> <bold>18. Sentencing — aggravating circumstances — especially heinous,</bold> <bold>atrocious, or cruel — course of conduct — not overlapping</bold> <block_quote> The especially heinous, atrocious, or cruel aggravating circumstance did not completely overlap the course of conduct aggravating circumstance. Ample evidence existed to support each circumstance.</block_quote> <bold>19. Sentencing — aggravating circumstance — course of conduct —</bold> <bold>not unconstitutionally vague</bold> <block_quote> The course of conduct aggravating circumstance is not unconstitutionally vague.</block_quote> <bold>20. Criminal Law — prosecutor's closing argument — prosecutor</bold> <bold>allowed to cure error</bold> <block_quote> The trial court did not err in a capital sentencing proceeding where the prosecutor, during his closing argument, attempted to play an audiotape of the defendant arguing with the victims, defendant objected, and the court allowed the prosecutor to cure any error by telling the jury that the tape had been admitted only to show malice. Allowing the prosecutor to cure the error did not show favoritism because the decision was made at a bench conference.</block_quote> <bold>21. Sentencing — prosecutor's argument — sequence of murders —</bold> <bold>supported by evidence</bold> <block_quote> The prosecutor's capital sentencing argument that defendant shot his wife before shooting his stepson was supported by the evidence.</block_quote> <bold>22. Sentencing — prosecutor's argument — gunshot sound effects</bold> <block_quote> There was no gross error requiring intervention by the trial court ex mero moto in a capital sentencing proceeding where the prosecutor used sound effects while holding the shotgun used to kill the victims. However, the prosecutor's use of sound effects is not condoned.</block_quote><page_number>Page 335</page_number> <bold>23. Sentencing — prosecutor's argument — jury to imagine</bold> <bold>victims' thoughts</bold> <block_quote> The prosecutor's argument in a capital sentencing proceeding that the jurors should imagine what the victims were thinking was not so grossly improper that the trial court erred by failing to intervene ex mero moto.</block_quote> <bold>24. Criminal Law — prosecutor's argument — defense expert —</bold> <bold>impeachment</bold> <block_quote> The prosecutor argued from the evidence in a capital sentencing proceeding when he impeached an expert defense witness by emphasizing that the witness had said that certain test data should not be turned over to unqualified people, and then pointed to a test answer that seemed well within the grasp of jury members but was unfavorable to defendant's theory of the case.</block_quote> <bold>25. Sentencing — instructions — life without parole</bold> <block_quote> There was no error in a capital sentencing hearing where the court included "without parole" when it first described life imprisonment, but merely said "life in prison" thereafter.</block_quote> <bold>26. Sentencing — death penalty — proportionate</bold> <block_quote> A death sentence was proportionate for a defendant who murdered his wife and stepson with a shotgun in their home.</block_quote>

<bold>1. Workers' Compensation — Seagraves test — injured employee's</bold> <bold>right to continuing benefits — termination for misconduct</bold> <block_quote> Our Supreme Court adopts the <italic>Seagraves</italic>, <cross_reference>123 N.C. App. 228</cross_reference> (2003), test for determining an injured employee's right to continuing workers' compensation benefits after being terminated for misconduct whereby an employer must demonstrate initially that the employee was terminated for misconduct, the same misconduct would have resulted in the termination of a nondisabled employee, and the termination was unrelated to the employee's compensable injury, in order to find that an employee constructively refused suitable work, thus barring workers' compensation benefits for lost earnings unless the employee is then able to show that his inability to find or hold other employment at a wage comparable to that earned prior to the injury is due to the work-related injury.</block_quote> <bold>2. Workers' Compensation — constructive refusal of suitable</bold> <bold>employment — termination for misconduct unrelated to</bold> <bold>workplace injuries</bold> <block_quote> The Industrial Commission erred in a workers' compensation case by concluding that defendant employer met its burden of providing competent evidence that plaintiff employee's failure to perform her UPC labeling duties was not related to her prior compensable injury under workers' compensation, which thereby led to her termination for misconduct and denial of additional workers' compensation benefits based on an alleged failure to accept a suitable position reasonably offered by her employer, because: (1) the evidence relied upon by the Commission's majority indicated that plaintiff was having continuing problems in the wake of, and as a result of, her injuries; (2) there was no competent evidence referenced in the Commission's opinion and award that supported a showing by defendant employer that plaintiff employee's termination was unrelated to her injuries, and defendant cannot meet this burden by showing that plaintiff failed to show otherwise; and (3) evidence and testimony indicated plaintiff's<page_number>Page 489</page_number> efforts toward finding subsequent commensurate employment may have been compromised by both market conditions and her lack of work experience, neither of which may serve as a means for defendant employer to sidestep its benefit obligations.</block_quote>

<bold>Cities and Towns — annexation — combination of adjacency to</bold> <bold>municipality and to areas developed for urban purposes</bold> <block_quote> The trial court erred in an annexation case by affirming defendant city's annexation ordinance 2708 regarding the pertinent non-urban or undeveloped parcels, because: (1) the plain meaning of N.C.G.S. § <cross_reference>160A-48</cross_reference>(d)(2) states that there must be a combination of adjacency to the municipality and adjacency to areas developed for urban purposes; and (2) the proposed annexation as to Non-Urban Areas 1 and 4 is invalid since those areas do not qualify under (d)(2) for inclusion with developed areas which meet the Urban Use/Subdivision Test in N.C.G.S. § <cross_reference>160A-48</cross_reference>(c) when no part of those two areas are adjacent to the city limits.</block_quote>

<bold>Medical Malpractice — wrongful death — statute of repose</bold> <block_quote> Reading the provisions of N.C.G.S. §§ <cross_reference>1-15</cross_reference>(c), 90-21.11 and 1-53(4) together and considering the function of a statute of repose, the legislature did not intend for actions premised on medical malpractice to be instituted more than four years after the last allegedly negligent act, even when the damages sought are for wrongful death.</block_quote>