Volume 39 — North Carolina Court of Appeals Reports

1. Criminal Law 45 — demonstration of what defendant showed witness — no experimental evidence In a prosecution of defendant for murder of his seven month old baby, the trial court properly permitted the police officer to whom defendant had made a statement to demonstrate to the jury the manner in which defendant had shown him he shook the baby without showing substantially similar circumstances, since no experimental evidence was involved, but the witness was merely testifying to what defendant had told and shown him. 2. Criminal Law 53.1 — expert testimony — cause of death — hypothetical question — failure to include all evidence In a prosecution of defendant for murder of his seven month old child, the trial court did not err in permitting the State to ask its medical expert a hypothetical question designed to elicit an opinion as to whether defendant's shaking of the child could have caused the hemorrhage which resulted in his death without including any reference to evidence that the baby had fallen from a bed earlier the same day, especially since the State thereafter posed a second hypothetical question concerning causation which included in its hypothesized facts the fall but omitted any references to the shaking, and defendant subjected the medical expert to a searching cross-examination. 3. Criminal Law 53.1 — expert testimony — cause of death — violence in shaking of child There was sufficient evidence of violence in the shaking of a seven month old child to form the basis of a medical expert's opinion that a hemorrhage which resulted in the child's death was caused by a "violent" backward and forward motion of the child's head where a police officer's testimony as to what defendant told and showed him tended to show a vigorous shaking of the child by defendant which made the child's head snap back. 4. Criminal Law 139 — involuntary manslaughter — imposition of maximum sentence The trial judge did not abuse his discretion in imposing on defendant the maximum sentence of imprisonment for involuntary manslaughter.

Executors and Administrators 30; Taxation 27 — holding corporation dissolved — assets in hands of receiver — estate taxes — contribution from receiver Where a consent judgment was entered into by all the parties and all the heirs of decedent which provided for the appointment of a receiver of the assets of a holding corporation, the stock of which decedent's heirs had claimed he owned at the time of his death, and, according to the consent judgment the corporation was to be dissolved and the assets distributed to the heirs according to fixed percentages which differed from the shares the heirs would be entitled to receive under the Intestate Succession Act, the trial court properly determined that the consent judgment did not address itself to the issue of tax liability of the parties and therefore did not preclude the administrator from seeking contribution from the receiver to pay estate taxes assessed against the estate; the administrator was entitled to receive sufficient funds from the receiver to pay the taxes assessed against the estate which were attributable to the inclusion of the corporate assets in the taxable estate; the parties should be taxed according to the share each heir was entitled to under the N.C. Intestate Succession Act and not according to the share each heir received under the consent judgment since the judgment did not address the issue of apportionment of estate tax liability; and the receiver should pay the taxes and those appellants claiming that they were owners of all or part of the assets of the corporation at the time of decedent's death should sue for a refund.<page_number>Page 53</page_number>

1. Evidence 51; Parent and Child 1.2 — blood-grouping test — issue of paternity required Before a court is required to order a blood-grouping test in a civil action, the question of paternity must arise. G.S. <cross_reference>8-50.1</cross_reference>. 2. Constitutional Law 26.5; Divorce and Alimony 23 — foreign judgment determining paternity — in personam jurisdiction — full faith and credit In an action to recover arrearages for child support which had been ordered by a Nevada court in a divorce action instituted by plaintiff, defendant was barred by res judicata from raising the issue of paternity, since he had properly authorized an attorney to enter a general appearance for him in the Nevada proceeding, which the attorney did; the Nevada court therefore had jurisdiction over the person of defendant; and the adjudication of paternity in plaintiff's Nevada divorce action was entitled to full faith and credit in the courts of this State.

1. Negligence 48 — entrance to shopping mall — wet floor — fall by plaintiff — summary judgment for defendants improper In an action to recover for injuries sustained by plaintiff when she slipped and fell in a shopping mall, the trial court improperly entered summary judgment for defendants where plaintiff alleged that the terrazzo floor covering used in the mall was slick when wet and thus unsafe for patrons; defendants placed a mat at the entrance which was insufficient to dry properly patrons' feet; there had been prior slips and falls on<page_number>Page 172</page_number> the mall floor; the faulty condition was known or should have been known to exist; and although defendants generally denied negligence, neither their affidavit nor answer controverted the facts alleged by plaintiff. 2. Rules of Civil Procedure 15 — motion to amend complaint — denial improper In an action to recover for injuries sustained by plaintiff when she slipped and fell in a shopping mall, the trial court abused its discretion in denying plaintiff's motion to amend the complaint to add a verification and precisely plead proximate cause, though the motion was made on the day the court signed a summary judgment order, since amendment of the complaint would not have been futile; at the time of plaintiff's motion to amend to correct technical defects in her complaint, defendants would have suffered no discernible prejudice; and allowing amendment to correct the technical pleading defects would have facilitated consideration of the action on all the evidence available to the court.

1. Conspiracy 4.1; Larceny 4; Receiving Stolen Goods 2 — conspiracy to steal in another state — receiving stolen goods — indictments — failure to allege larceny was felony in other state In indictments charging felonious conspiracy to steal a trailer loaded with tobacco (total value of $57,400) from its owner in Virginia and felonious receiving of the stolen tobacco, it was not necessary to allege that the larceny of the property was a felony in Virginia, since the law of North Carolina determined whether the conspiracy entered in this State and receiving which occurred in this State constituted felonies. Even if it were relevant to determine whether the larceny was a felony in Virginia, this was a question of law for the trial court, which could take judicial notice of the laws of Virginia. 2. Criminal Law 74.3, 92.5 — statements by accomplices implicating defendants — admission for corroboration — denial of severance Extrajudicial statements made by accomplices implicating defendants were properly admitted for the purpose of corroborating the testimony of the accomplices, since the accomplices were subject to cross-examination by defendants. Therefore, the trial court did not err in the denial of defendants' motions for separate trials pursuant to G.S. <cross_reference>15A-927</cross_reference> (c)(1).

Administrative Law 4 — dismissal of State employee — stay order prior to final agency decision — delay caused by rehearing The superior court had no authority under G.S. 150A-48 to enter a stay order of the dismissal of an employee of the N.C. Department of Transportation before a final decision was entered by the State Personnel Commission, and the Commission's order for a rehearing of petitioner's case after it declined to follow the recommendation of the hearing officer that a default be entered against the Department of Transportation for its failure to appear will not be deemed a "final agency decision" under G.S. 150A-43 on the facts of this case.

1. Rules of Civil Procedure 52 — failure to make findings of fact — no reversible error Though the trial court erred in failing to make findings of fact in support of its conclusion that an officer arrested plaintiff "upon reasonable grounds " such error was not reversible since the facts leading up to the arrest were uncontradicted; only the conclusion to be drawn from them was disputed; and the judge's conclusion could be reviewed on appeal without the aid of detailed findings of fact. 2. Automobiles 126.2 — refusal to take breathalyzer test — pretended cooperation Evidence was sufficient to support the trial court's conclusion that defendant willfully refused to submit to a breathalyzer test where it tended to show that defendant was told to breathe into the machine; he placed his mouth on the mouthpiece of the machine but no air sample sufficient for a reading appeared; defendant was given further instructions and two more opportunities to breathe into the machine; and the machine had been tested and found to be working properly immediately before the test was administered.

1. Automobiles 126.3 — willful refusal to take breathalyzer test — elapse of time while waiting for attorney's call The trial court properly found that petitioner "willfully" refused to submit to a breathalyzer test within the thirty minute period mandated by G.S. <cross_reference>20-16.2</cross_reference> (a)(4) where petitioner was advised that he had a right to call an attorney and select a witness to view the test but that the test could not be delayed for a period in excess<page_number>Page 492</page_number> of thirty minutes, petitioner refused to take the test until he talked with his attorney, and the time elapsed while petitioner was waiting for an attorney to return his call, it not being essential for the State to show that petitioner was made aware of the passage of time in order for his refusal to be willful. 2. Automobiles 126.4; Constitutional Law 40 — breathalyzer test — no constitutional right to counsel Petitioner had no Sixth Amendment right to confer with counsel prior to making a decision as to whether he would take a breathalyzer test. 3. Automobiles 126.3 — breathalyzer test — thirty minute period to contact counsel — due process Petitioner's right to due process was not denied by the statute giving him a period of thirty minutes within which to contact an attorney before submitting to a breathalyzer test since any right to consult an attorney was solely a matter of statutory right, and the legislature was not required to permit an accused any time at all in which to attempt to contact an attorney prior to taking the breathalyzer test. G.S. <cross_reference>20-16.2</cross_reference> (a)(4).

1. Constitutional Law 56; Criminal Law 91 — jurors in courtroom during guilty pleas and evidence in other cases — G.S. <cross_reference>15A-943</cross_reference> — right to impartial jury The trial of defendant by a jury panel which had the opportunity to hear guilty pleas and the presentation of evidence and sentencing thereon in other cases did not contravene the language and objectives of G.S. <cross_reference>15A-943</cross_reference>, which prohibits the calendaring of jury cases in certain counties on a day arraignments are calendared, since the legislative intent in enacting G.S. <cross_reference>15A-943</cross_reference> was to minimize the imposition on the time of jurors and witnesses, not to insure the impartiality of jurors; nor did such procedure violate defendant's right to be tried by an impartial jury. 2. Criminal Law 102.9 — prosecutor's characterizations of defendant as killer, robber, thief — no prejudice In a prosecution for armed robbery, statements by the assistant district attorney that defendant was not a "gentleman," that he was a " .44 caliber killer," a "robber" and a "thief" were not prejudicial to defendant since evidence supported such characterizations of defendant except for the word killer, to which defense counsel promptly objected and was sustained by the court; furthermore, the prosecution's point that armed robbery was a crime next in severity only to murder was a valid one. 3. Criminal Law 102.5, 170.2 — absence of witness — question by prosecutor Defendant was not prejudiced by the prosecutor's question, "Fred Drye ain't going to come in here and to this Courtroom and swear to a pack of lies, is he?" since it could not have affected the outcome of the case. 4. Criminal Law 66.11 — identification of defendant — no illegal procedures — no mistaken identification Evidence in an armed robbery prosecution was sufficient to support the trial court's findings that the witness had ample opportunity to observe defendant at the crime scene; nothing suggested a misidentification of defendant; no illegal identification procedures were used; and the confrontation two and one-half hours after the alleged robbery when defendant was brought into the witness's store by officers was not necessarily suggestive or conducive to irreparable mistaken identification.

1. Criminal Law 75.15 — intoxicated defendant — statements voluntary Evidence was sufficient to support the trial court's findings that defendant had been advised of his Miranda rights, that he stated to an officer that he understood his rights, did not want an attorney, and was willing to talk to the officer, and the fact that defendant was intoxicated did not negate the court's conclusion that defendant's statements were freely, understandingly and voluntarily made. 2. Criminal Law 86.2 — impeachment of defendant — prior convictions — presumption of validity The use of convictions which are constitutionally invalid under Gideon v. Wainwright, <cross_reference>372 U.S. 335</cross_reference>, for purposes of impeaching defendant's credibility deprives him of due process of law; however, convictions are presumed valid, and the burden of proof is on the defendant to prove his inability to employ counsel at the time of the conviction which he contends was invalid. 3. Criminal Law 86.2 — impeachment of defendant — prior unrelated offenses In a prosecution for driving under the influence and assaulting a law enforcement officer engaged in the performance of his duties, the trial court did not err in allowing the State to use defendant's prior motor vehicle convictions for impeachment purposes, since a defendant who testifies is subject to cross-examination concerning prior convictions including unrelated violations of motor vehicle laws. 4. Criminal Law 86.2 — other offenses by defendant — admissibility to show lack of trustworthiness Defendant's prior convictions over the past several years were admissible as tending to show his lack of trustworthiness. 5. Automobiles 127.1 — drunk driving — defendant as driver — sufficiency of evidence In a prosecution for driving under the influence, evidence was sufficient to show that defendant was driving a car at the time in question where it tended to show that defendant was seen leaving his car which was located partially on the road and partially on the curb; when an officer arrived at the car, the motor was still running, and defendant told the officer that he had run his car off of the roadway; when a second officer arrived, defendant again stated that<page_number>Page 576</page_number> he had run off the road; and still later, defendant was asked if he had been operating a motor vehicle and he stated that he had. 6. Automobiles 129; Criminal Law 113.3 — defendant's intoxication when statements made — no request for instruction In a prosecution for driving under the influence where there was evidence that defendant had made statements that he was the driver of the car in question, and that he was intoxicated at the time he did so, defendant was not entitled, absent a request, to a special instruction informing the jury that they must consider the condition of defendant at the time he made the statements in determining the weight and credibility to be given those statements.

1. Receiving Stolen Goods 5.1 — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for feloniously receiving a stolen CB radio and microwave oven. 2. Criminal Law 111.1 — reading indictment during jury charge — no violation of statute The trial judge did not violate G.S. <cross_reference>15A-1213</cross_reference> by reading a portion of the indictment to the jury as a part of his charge after the close of the evidence, although the statute provides that "the judge may not read the pleadings to the jury," since the purpose of the statute, when read as a whole and considered with the Official Commentary, is to avoid giving jurors "a distorted view of the case" through the "stilted language of<page_number>Page 656</page_number> indictments," and jurors would not be given a distorted view of the case by a mere reiteration of the charge couched in the words of the indictment after they had heard all the evidence. 3. Receiving Stolen Goods 6 — instructions on intent The trial judge sufficiently instructed the jury on the intent necessary to support a conviction of feloniously receiving stolen goods, although he failed to use the words "felonious intent," where he defined such intent as "the intent to convert property to [defendant's] own use or deprive the owner of its use permanently" and as a "dishonest purpose." 4. Criminal Law 86.7 — prior misconduct — adequacy of limiting instruction — failure to object to evidence Defendant cannot now complain of the adequacy of a limiting instruction given with regard to a prior act of misconduct by defendant where he failed to object to the admission of the evidence or to request a limiting instruction.

<p>1. Rules of Civil Procedure §§ 12, 56— motion treated as summary judgment motion</p> <p>The Court of Appeals converted defendants’ Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment by considering on appeal the facts asserted in plaintiffs’ brief in addition to the allegations of the complaint.</p> <p>2. Schools § 13— failure of student to comply with dress code — exclusion from graduation by principal</p> <p>In an action to recover for mental and emotional distress allegedly resulting from defendant school principal’s action in excluding plaintiffs’ son from high school graduation ceremonies because he allegedly did not comply with the dress code established by defendant principal which required male graduates to wear “dress pants as opposed to jeans,” defendants were entitled to summary judgment where plaintiffs’ brief, which stated that their son wore “brushed denim pants” to the graduation ceremony, negated their allegation that defendant principal wrongfully claimed that their son was not properly attired.</p>

Rules of Civil Procedure 37 — failure to make discovery — sanctions In this action to recover damages for the destruction by fire of equipment stored in defendant's warehouse, the trial court properly held plaintiffs in contempt and imposed sanctions pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 37 (b)(2)e for failure to comply with an order compelling discovery where the court ordered plaintiffs to disclose whether a "standard fire insurance policy with a standard extended coverage" was in effect at the time of the alleged loss, plaintiffs answered that they had no knowledge of "any standard fire insurance policy with a standard extended coverage" in effect at the time of the loss, and, in answer to a further interrogatory as to whether plaintiffs had any insurance covering the lost equipment, plaintiffs thereafter disclosed that five policies affording "all risks" coverage for the equipment were in effect on the date of the loss and that $15,560 had been paid under those policies.<page_number>Page 722</page_number>