Volume 363 — North Carolina Reports

<bold>1. Criminal Law — appointed attorneys removed — one of original attorneys</bold> <bold>reappointed — no error</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by not removing one of defendant's appointed attorneys after a superior court judge ordered that the original attorneys be removed and IDS reappointed one of the original attorneys. The court's order simply allowed defendant's motion to have counsel removed and did not implicitly or explicitly order that neither of the original attorneys be reappointed.</block_quote> <bold>2. Criminal Law — request for substitute counsel — defendant's letter not</bold> <bold>sufficient</bold> <block_quote> A first-degree murder defendant's letter to the trial court did not clearly constitute a request for substitute counsel and the trial court was not required to conduct a hearing as argued by defendant. Even if a hearing should have been held, there was not a conflict sufficient to remove the attorney from the case.</block_quote><page_number>Page 690</page_number> <bold>3. Criminal Law — represented defendant — pro se motions not allowed</bold> <block_quote> The trial court did not err by "summarily denying" a first-degree murder defendant's pro se motions where defendant was represented by appointed counsel and therefore was not allowed to file motions on his own behalf. A statement to the court by counsel that the pro se motions needed to be ruled upon was not an adoption of the motions.</block_quote> <bold>4. Evidence — police officer's opinions — admissibility</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by admitting certain testimony from a police officer where defendant contended that it was an impermissible lay opinion. The testimony explained the officer's observations and was not an opinion, or was rationally based on the officer's perception and experience and was helpful to determination of a key issue.</block_quote> <bold>5. Evidence — testimony by officers — statements made by others —</bold> <bold>admissible as corroboration</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by admitting certain testimony for corroborative purposes. The testimony of one officer tracked the testimony of the fiancée of a victim about a telephone call received by the victim, and testimony from a detective about defendant's statements to his cell-mate generally tracked the testimony given by the cellmate. Any prejudicial effect from the language of the statements was mitigated by the admission of other testimony, and the jury was instructed on corroborative purposes.</block_quote> <bold>6. Homicide — first-degree murder — evidence sufficient — viewed in light</bold> <bold>most favorable to State</bold> <block_quote> The evidence of first-degree murder was sufficient for a reasonable person to find defendant guilty beyond a reasonable doubt and sufficient for the jury to finding the aggravating circumstance of course of conduct. Defendant on appeal attempted to interpret the evidence in the light most favorable to him, detailing other plausible explanations for the evidence; however, contradictions or conflicts are resolved in favor of the State on a motion to dismiss for insufficient evidence. Evidence not favorable to the State is not considered.</block_quote><page_number>Page 691</page_number> <bold>7. Sentencing — capital — jurisdiction — different judges at guilt and</bold> <bold>penalty phases</bold> <block_quote> The trial court did not lack jurisdiction to enter a judgment sentencing defendant to death for first-degree murder because different judges presided over the guilt and sentencing phases of defendant's murder trial where a mistrial was declared in the original sentencing proceeding because defendant attacked one of his appointed attorneys. The superior court's jurisdiction over the subject matter of defendant's case was established when defendant was indicted for a felony, jurisdiction over the penalty phase was established when defendant was convicted of a capital offense, and the trial court was not divested of its subject matter jurisdiction because the same judge did not preside over the guilt and penalty phases of defendant's capital trial.</block_quote> <bold>8. Sentencing — capital — jurisdiction — different juries at guilt and</bold> <bold>sentencing phases</bold> <block_quote> The sentencing jury in a capital sentencing proceeding did not lack jurisdiction to recommend a sentence of death because it was not the same jury that returned the guilty verdict in the guilt phase of defendant's first-degree murder trial. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(a)(2) sets out procedure, not jurisdiction.</block_quote> <bold>9. Sentencing — capital — second proceeding — judgments out-of-term and</bold> <bold>out-of-session</bold> <block_quote> Entering judgments imposing a sentence of death out-of-term and out-of-session did not deprive the trial court of jurisdiction over a delayed capital sentencing proceeding where a mistrial was declared in the first sentencing proceeding because defendant attacked one of his appointed attorneys. New counsel needed to be appointed with time for the new counsel to prepare; defendant is not prejudiced by error resulting from his own conduct.</block_quote> <bold>10. Jury — capital trial — right to be present — jury pool selection</bold> <block_quote> A first-degree murder defendant's right to be present at all of the proceedings of his capital trial was not violated when the deputy clerk selected forty-eight prospective jurors from the pool in the jury assembly room, outside of defendant's presence. The random segregation of the entire jury pool so that it could be split among defendant's proceeding and other matters being handled at the courthouse was a preliminary administrative matter at which defendant did not have a right to be present.</block_quote><page_number>Page 692</page_number> <bold>11. Sentencing — evidence — possession of victims' property after murders</bold> <bold>— admissibility</bold> <block_quote> The trial court did not err during a capital sentencing proceeding by admitting evidence that defendant had items that belonged to the victims after the murders even though he had been acquitted of robbery. The evidence was not offered to prove that defendant had robbed his victims, but to prove the course of conduct aggravating factor.</block_quote> <bold>12. Sentencing — death penalty — proportionatity</bold> <block_quote> A death penalty was proportionate where defendant murdered two people, was convicted on the basis of premeditation and deliberation, and the killings appeared to be motivated by revenge for failure to pay for a motorcycle deal, which prevented defendant from being able to make bail during an incarceration.</block_quote>

<bold>Search and Seizure — frisk of defendant for weapons — reasonable</bold> <bold>suspicion</bold> <block_quote> The decision of the Court of Appeals that the trial court erred by denying defendant's motion to suppress scales and cocaine seized during a search of defendant's person is reversed for the reason stated in the Court of Appeals dissenting opinion that, under the totality of the circumstances, officers had reasonable suspicion to frisk defendant for a weapon based upon a confidential informant's tip that defendant was involved in a recent drive-by shooting, the fact defendant was wearing gang colors, and information received from other informants and anonymous tipsters that defendant was selling drugs in the area.</block_quote>

<bold>Boundaries — line running "up the branch" — intent of grantors</bold> <block_quote> A decision of the Court of Appeals that the ground location of points on a boundary in addition to three undisputed points was a factual question for the jury is reversed for the reason stated in the Court of Appeals dissenting opinion that language in the deeds to the parties stating that the boundary line runs "up the branch" unequivocally established the branch or stream as the natural boundary between the two properties, and the boundary was not two straight lines running between the undisputed markers.</block_quote>