Volume 360 — North Carolina Reports

<bold>Divorce — separation agreement — intent of</bold> <bold>parties — ambiguities — parol evidence</bold> <block_quote> The decision of the Court of Appeals upholding an order of the trial court voiding an entire separation agreement for vagueness and uncertainty is reversed for the reasons stated in the dissenting opinion in the Court of Appeals that the intent of the parties can be determined by the plain language of the separation agreement, and any ambiguities creating questions of fact may properly be resolved with the use of parol evidence.</block_quote>

<bold>Appeal and Error; Hospitals and Other Medical Facilities</bold> <bold>— certificate of need — mootness</bold> <block_quote> The Court of Appeals erred in denying respondent-intervenor Presbyterian Hospital's motion to dismiss as moot petitioner's appeal from a decision of the Department of Health and Human Services upholding a certificate of need for Presbyterian Hospital to build a hospital in Huntersville where, prior to the Court of Appeals decision, construction of the hospital had been completed and the hospital was fully operational.</block_quote>

<bold>1. Jury — motion for mistrial — prospective</bold> <bold>juror brought newspaper article dealing with trial into jury</bold> <bold>room during jury selection — admonition to jury</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder case by denying defendant's motion for a mistrial based on the fact that a prospective alternate juror brought a newspaper article dealing with the trial into the jury room during jury selection, because: (1) none of the twelve jurors selected for the sitting panel were in the jury room by the time the article appeared there, and defendant had not shown the substantial and irreparable harm required by N.C.G.S. § <cross_reference>15A-1061</cross_reference> for declaration of a mistrial; (2) the trial court's findings that the original jury was not tainted and its subsequent denial of defendant's motion for a mistrial was not so arbitrary that it could not have been the result of a reasoned decision; (3) the trial court's questioning was sufficient to support it's findings that the regular jury was not exposed to the article and was fully adequate under our law; (4) none of the alternate jurors participated in the deliberations at defendant's trial, and thus, even if alternate jurors were exposed to the article, any resulting taint was immaterial and caused defendant no prejudice; (5) a defendant claiming error in the trial court's admonitions pursuant to N.C.G.S. § <cross_reference>15A-1236</cross_reference>(a) must object in order to preserve the issue for appeal, and defendant acknowledges that no such objection was raised; and (6) defendant also failed to establish that he suffered prejudice as a result of any failure of the trial court to admonish the jury when the trial court's admonition in this case specifically advised the prospective jurors that if they were selected for the jury, they were not to read media reports about the case.</block_quote> <bold>2. Sentencing — capital — mitigating</bold> <bold>circumstances — no significant history of prior</bold> <bold>criminal activity — failure to give instruction</bold> <block_quote> The trial court did not err by failing to submit the statutory mitigating circumstance under N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(1) that defendant has no significant history of prior criminal activity and by instead submitting a similar nonstatutory mitigating circumstance<page_number>Page 182</page_number> requested by defendant that prior to this offense the defendant had no significant history of violent criminal activity, because: (1) although a trial court's failure to submit a statutory mitigating circumstance that is supported by sufficient evidence is prejudicial error unless the State can demonstrate that the error was harmless beyond a reasonable doubt, no juror found this nonstatutory mitigating circumstance in light of the court's correct oral articulation of the mitigating circumstance, its provision to the jury of written copies of the instructions, its general instruction to answer "no" if the jury did not find the circumstance, and the additional specific wording in the verdict form that none of the jurors found this particular mitigating circumstance to exist; (2) although the doctrine of invited error does not apply, a whole record review will necessarily include consideration of the parties' positions as to whether the instruction should be given, and defendant asked the trial court not to instruct on the (f)(1) statutory mitigating circumstance; (3) the evidence presented at the trial sufficiently supported the trial court's threshold determination that no rational jury could find that defendant's criminal activity was insignificant; and (4) to the extent <italic>State v. Rouse</italic>, <cross_reference>339 N.C. 59</cross_reference> (1994), conflicts with other decisions on this point and our Supreme Court's holding in this case to the effect that an (f)(1) instruction may be given on the basis of any relevant evidence in the record, no matter how derived or presented, it is overruled.</block_quote> <bold>3. Sentencing — capital — mitigating</bold> <bold>circumstances — age at time of offense</bold> <block_quote> The trial court did not err in a first-degree murder case by failing to submit the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(7) mitigating circumstance to the jury concerning defendant's age at the time of the offense which was twenty-three years old, because: (1) our Supreme Court will not conclude that the trial court erred in failing to submit the age mitigator where evidence of defendant's emotional immaturity is counterbalanced by other factors such as defendant's chronological age, defendant's apparently normal intellectual and physical development, and defendant's lifetime experience; and (2) the record demonstrated that defendant's maturity was consistent with his chronological age and other factors counterbalance defendant's evidence of emotional immaturity including defendant agreeing to help others financially and his polite nature.</block_quote><page_number>Page 183</page_number> <bold>4. Sentencing — capital — defendant's</bold> <bold>argument — premeditation and deliberation —</bold> <bold>victim's perceptions — aggravating circumstances</bold> <bold>— murder especially heinous, atrocious, or cruel</bold> <block_quote> The trial court did not err in a first-degree murder case by failing to intervene ex mero motu during portions of the prosecution's closing argument in the sentencing proceeding that allegedly improperly encouraged the jurors to recommend death on the basis of evidence introduced in the guilt phase of the trial to support the elements of premeditation and deliberation, because: (1) evidence presented during the guilt phase is competent for the jury's consideration in the sentencing proceeding, and thus, the State may reargue evidence that justified the murder conviction to support the finding of an aggravating circumstance; (2) the fact that a murder was planned may be a factor in determining whether the murder was especially heinous, atrocious, or cruel; and (3) arguments addressing the victim's perceptions are relevant to the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel.</block_quote> <bold>5. Sentencing — death penalty —</bold> <bold>proportionate</bold> <block_quote> The trial court did not err in a first-degree murder case by sentencing defendant to death, because: (1) although defendant contends the sentence was imposed under the influence of passion, prejudice, and other arbitrary factors, this argument restates four issues previously discussed and our Supreme Court found no error as to these issues individually or considering them cumulatively; (2) the evidence indicated that defendant began planning to kill the victim as soon as their telephone conversation ended the day before the murder, that defendant urged the victim to walk into a field for the ostensible purpose of setting up targets and then shot him without provocation, that the victim asked defendant not to shoot him again, that defendant fired three spaced shots into the victim, that the third shot was fired into the victim's head as the victim lay helpless watching defendant, that defendant took the victim's keys from his body after shooting him and drove his car to West Virginia, that defendant traded or sold the victim's two guns, and that defendant acknowledged that he felt no remorse; (3) the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel is sufficient, standing alone, to affirm the death sentence; and (4) defendant was found<page_number>Page 184</page_number> guilty of first-degree murder on the basis of premeditation and deliberation, and also on the basis of felony murder.</block_quote>

<bold>1. Appeal and Error — preservation of issues —</bold> <bold>failure to present argument — failure to cite</bold> <bold>authority</bold> <block_quote> Although defendant assigns multiple instances of error in the jury selection and guilt-innocence proceeding of a first-degree murder case including his conviction of discharging a firearm into occupied property, these assignments of error are abandoned because defendant has not presented any argument or cited any authority in support of these assignments.</block_quote> <bold>2. Sentencing — capital — aggravating</bold> <bold>circumstances — especially heinous, atrocious, or</bold> <bold>cruel murder</bold> <block_quote> The trial court did not err in a first-degree murder case 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, because: (1) in determining the sufficiency of the evidence, the evidence is looked at as a whole and not in the piecemeal manner proposed by defendant; and (2) in this case, the victim pleaded for her life while defendant continued shooting her and he showed no mercy as she was prone on the ground, the murder was dehumanizing since defendant unloaded the capacity of his gun inflicting multiple gunshots upon his victim, defendant scarred for life the many witnesses to the murder including children, the victim was unable to retreat or flee as defendant began shooting her while she was confined to the passenger compartment of her vehicle, defendant continued to pursue the victim when she finally exited the vehicle, the victim knew she was going to die but could not do anything to prevent her impending death, and defendant kicked the victim in addition to shooting her on the very spot where her wedding ring would have been.</block_quote> <bold>3. Sentencing — capital — prosecutor's</bold> <bold>argument — aggravating circumstances —</bold> <bold>especially heinous, atrocious, or cruel murder</bold> <block_quote> The prosecutor's closing argument defining the especially heinous, atrocious, or cruel aggravating circumstance in a capital sentencing proceeding was not grossly improper so as to require the trial court to intervene ex mero motu where the<page_number>Page 232</page_number> prosecutor used the language of the first two paragraphs of the relevant pattern jury instruction but not the latter two paragraphs, and defense counsel failed to object to this language as incomplete or misleading, because the prosecutor's failure to recite the entire pattern instruction falls within the prosecutor's latitude and does not constitute gross error, especially in light of the preceding and subsequent arguments that fully explained this aggravating circumstance.</block_quote> <bold>4. Sentencing — capital — prosecutor's</bold> <bold>argument — aggravating circumstances —</bold> <bold>expecially heinous, atrocious, or cruel murder</bold> <block_quote> The trial court did not abuse its discretion by denying defendant's objection to the prosecutor's argument in a capital sentencing proceeding setting forth three types of murders that would warrant submission of the especially heinous, atrocious, or cruel aggravating circumstance where the prosecutor did not make an improper comparison between the murder at hand and murders previously found to be especially heinous, atrocious, or cruel, but instead merely aided the jury in its understanding of what the Supreme Court has held to be types of murders in which this aggravating circumstance could be found by tracing the language used in the Supreme Court opinions, and continued by showing how this murder fit within the parameters defined by the law.</block_quote> <bold>5. Sentencing — capital — defendant's</bold> <bold>closing argument — especially heinous, atrocious, and</bold> <bold>cruel aggravating circumstance — improper comparisons</bold> <bold>between cases and the fact of each case</bold> <block_quote> The trial court did not err in a first-degree murder case By sustaining the prosecution's objections during defendant's closing argument in the penalty proceeding even though defendant contends it prevented him from fully explaining to the jury the decision it was to make concerning the especially heinous, atrocious, and cruel aggravating circumstance, because: (1) the prosecution merely set out the law and applied the facts of the present case to the law whereas defendant began to make comparisons between cases and the fact of each case which our Supreme Court has not allowed; and (2) the circumstances of other murders either actual or imagined that defense counsel believed were more heinous, atrocious, or cruel were not present in the record at the time of closing arguments, and, therefore, counsel may not introduce such evidence in closing when there<page_number>Page 233</page_number> was no request for the trial court to take judicial notice of the other murders referenced.</block_quote> <bold>6. Sentencing — capital — aggravating</bold> <bold>circumstances — murder especially heinous, atrocious,</bold> <bold>or cruel — not unconstitutionally vague and</bold> <bold>overbroad</bold> <block_quote> Although defendant contends the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel is unconstitutionally vague and overbroad, and that this purported vagueness cannot be cured by appellate narrowing on review after <italic>Ring v. Arizona</italic>, <cross_reference>536 U.S. 584</cross_reference> (2002), our Supreme Court recently discussed this issue at length in <italic>State v. Duke</italic>, <cross_reference>360 N.C. 110</cross_reference> (2005), and there is no compelling reason to overrule this precedent.</block_quote> <bold>7. Sentencing — capital — requested</bold> <bold>instruction to change language of Issue Three</bold> <block_quote> The trial court did not err in a capital sentencing proceeding by denying defendant's request to change the language in the jury instructions and the Issues and Recommendation as to Punishment form regarding Issue Three to state that the jury must recommend a sentence of life imprisonment unless it found the aggravating circumstances outweighed the mitigating circumstances, because: (1) the instruction proffered by defendant was an incorrect statement of the law articulated in N.C.G.S. § <cross_reference>15A-2000</cross_reference>; and (2) contrary to defendant's assertion, the instruction as given did not impermissibly shift the burden as to Issue Three to defendant by creating a presumption of an affirmative answer when all of the elements required for a jury to make a binding recommendation of death must be proved by the State beyond a reasonable doubt.</block_quote> <bold>8. Constitutional Law — effective assistance of</bold> <bold>counsel — dismissal without prejudice</bold> <block_quote> Defendant's claim of ineffective assistance of counsel in A first-degree murder case is dismissed without prejudice because further inquiry is required into these allegations of ineffective assistance of counsel.</block_quote> <bold>9. Sentencing — capital — death penalty</bold> <bold>— proportionate</bold> <block_quote> The trial court did not err in a first-degree murder case by sentencing defendant to death and defendant's suggestion to suspend consideration of death penalty cases is declined, because:<page_number>Page 234</page_number> (1) defendant was convicted of first-degree murder based upon the felony murder rule and upon a theory of malice, premeditation, and deliberation; (2) the N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel is sufficient, standing alone, to affirm the death sentence; and (3) defendant kicked his wife as he walked back to his pickup truck after firing every cartridge contained by his rifle, he made no attempt to apologize, no attempt to help her, nor did he check to see if she was still alive.</block_quote>

<bold>Kidnapping — second-degree — asportation of</bold> <bold>robbery victims from an entranceway into a motel lobby</bold> <bold>— inherent part of robbery with dangerous weapon</bold> <block_quote> The Court of Appeals did not err by vacating defendant's four convictions of second-degree kidnapping arising from the asportation of robbery victims from an entranceway into a motel lobby during the commission of a robbery with a dangerous weapon, because defendant's actions constituted a mere technical asportation of the victims which was an inherent part of the commission of robbery with a dangerous weapon.</block_quote> <block_quote> Justice TIMMONS-GOODSON did not participate in the consideration or decision of this case.</block_quote>

<bold>Rape — second-degree — instruction — proof</bold> <bold>beyond a reasonable doubt that victim was sleeping</bold> <block_quote> The Court of Appeals did not err in a second-degree rape case by granting defendant a new trial although the decision should have been based on the trial court's failure to instruct that the State must prove beyond a reasonable doubt that the victim was sleeping, rather than focusing on the trial court's additional instruction that force and lack of consent are implied in law if at the time of the vaginal intercourse the victim was sleeping or similarly incapacitated, because: (1) the trial court's jury instruction did not clearly emphasize the State's burden to prove beyond a reasonable doubt that the victim was asleep, thus satisfying the force and lack of consent elements of second-degree rape under N.C.G.S. § <cross_reference>14-27.3</cross_reference>(a)(1); and (2) there is a reasonable likelihood that the jury applied the instruction in a manner that impermissibly and unconstitutionally lessened the State's burden of proof.</block_quote> <block_quote> Justice TIMMONS-GOODSON did not participate in the consideration or decision of this case.</block_quote><page_number>Page 342</page_number>

<bold>Burglary and Unlawful Breaking or Entering; Indictment and</bold> <bold>Information — breaking or entering — intent</bold> <bold>— amended at close of evidence</bold> <block_quote> There is no requirement that an indictment for felonious breaking or entering contain specific allegations of the intended felony. However, if an indictment does specifically allege the intended felony, N.C.G.S. § <cross_reference>15A-923</cross_reference>(e) mandates that such allegations may not be amended. Here, an indictment for breaking or entering with intent to commit murder was orally changed by the prosecutor at the end of all of the evidence to allege an intent to commit an assault. The trial court gave the State a second bite of the apple when there was no further opportunity for defendant to prepare or present contrary evidence.</block_quote>

<bold>Deeds-restrictive covenants-amendments</bold> <block_quote> Amendments to a declaration of restrictive covenants must be reasonable; reasonableness may be ascertained from the language of the declaration, deeds, and plats, together with other objective circumstances surrounding the parties' bargain, including the nature and character of the community. The amendment in this case granted the Association practically unlimited power to assess lot owners, is contrary to the original intent of the contracting parties, and is unreasonable.</block_quote> <block_quote> Justice MARTIN did not participate in the consideration or decision of this case.</block_quote>

<bold>Workers' Compensation — occupational disease —</bold> <bold>specific traumatic event</bold> <block_quote> The Industrial Commission erred in a workers' compensation case by concluding that plaintiff employee bus driver's ulnar nerve entrapment neuropathy and cervical spine condition were compensable occupational diseases and that the injury to the cervical spine qualified as a specific traumatic incident, and the case is remanded for further proceedings consistent with this opinion, because: (1) the Commission applied an incorrect legal standard in finding plaintiff's ulnar neuropathy and cervical spine condition to be compensable occupational diseases pursuant to N.C.G.S. § <cross_reference>97-53</cross_reference>(13) and the cervical spine condition to be a specific traumatic incident pursuant to N.C.G.S. § <cross_reference>97-2</cross_reference>(6); (2) plaintiff failed to establish that his employment placed him at a greater risk of contracting either his ulnar nerve entrapment or his cervical spine condition than the general public; and (3) the evidence is not sufficient to satisfy the requirements enunciated by the General Assembly in N.C.G.S. § <cross_reference>97-2</cross_reference>(6) that a specific traumatic incident occurred when plaintiff presented evidence that he experienced pain on a particular date but he presented no evidence linking that pain to the occurrence of an injury, and none of plaintiff's evidence establishes a specific traumatic incident of the work assigned that can be construed as an injury by accident to plaintiff's back.</block_quote> <block_quote> Justice MARTIN did not participate in the consideration or decision of this case.</block_quote>