Volume 55 — North Carolina Court of Appeals Reports

1. Riot and Inciting to Riot 2.1 — sufficiency of the evidence The evidence was sufficient to convict defendants of rioting where it tended to show that the defendants came into the prosecuting witness's yard carrying large sticks; that the prosecuting witness, her<page_number>Page 53</page_number> children and her friends retreated into the house; that the defendants followed and tore the screen door; that a crowd of about 12 people had gathered nearby; that the defendants did further damage to her house and her car; and that the crowd eventually grew to about 150 people which was unruly and took the sheriff 35 to 45 minutes to disperse. 2. Burglary and Unlawful Breakings 5.5 — breaking or entering — sufficiency of the evidence The evidence was sufficient to convict three defendants of breaking or entering where one defendant "entered" the house when he reached through the screen and threw a snake into the victim's house and when he was observed inside the house after a riotous crowd was dispersed; a second defendant broke into and entered the house when he cut through the screen with a knife and his "arm came through the door"; and the third defendant was present and participated as an aider and abettor when the first defendant reached through the screen and put the snake in the house and later when the other defendant cut the screen with a knife and put his arm through the door. 3. Criminal Law 43.2 — admission of photographs — proper foundation A proper foundation for the admission of photographs of damage to a riot victim's house was made where the witnesses who took the photographs all testified about the damage to the house, and they testified that the photographs accurately and fairly portrayed the scene as they saw it following the riot.

1. Landlord and Tenant 8.3 — unsafe condition in common area — duty of landlord to tenant Under the applicable provision of North Carolina's Residential Rental Agreement Act, G.S. <cross_reference>42-38</cross_reference>, <cross_reference>42-40</cross_reference>, <cross_reference>42-42</cross_reference>, and <cross_reference>42-44</cross_reference>, landlords are under a duty to keep the common area of their premises in a safe condition. A violation of the statute does not constitute negligence per se, rather a violation is only evidence of negligence. Therefore, in a personal injury action whereby plaintiff-tenant alleged defendant-landlord failed to maintain the common areas of his apartment complex in a safe condition resulting in an injury to plaintiff when he slipped and fell on an icy walkway in the apartment complex, and where plaintiff's evidence would permit a jury to find that plaintiff was defendant's tenant; that defendant allowed a natural accumulation of ice to remain on the common areas of their premises devoted to plaintiff's use; that such accumulation of ice was an unsafe condition; that defendant knew or in the exercise of ordinary care should have known of the presence of the ice; that defendant failed to exercise ordinary care to remove the unsafe condition; and that such failure was the proximate cause of plaintiff's injury, plaintiffs evidence was sufficient to overcome defendants' motion for directed verdict. 2. Landlord and Tenant 8.4 — contributory negligence on part of tenant — jury question In an action where tenant was injured when he slipped and fell on an icy walkway in his apartment complex, it was a jury question whether plaintiff, as an ordinary prudent person, would be required to remain in his apartment rather than attempt to reach his car; or, whether<page_number>Page 116</page_number> plaintiff as an ordinary prudent person, exercising reasonable care for his safety, might attempt to leave his apartment on a reasonably necessary mission.

1. Principal and Agent 5 — written contract — notice of limitation on scope of agent's authority Where defendant, in its written contract of sale of roofing materials to plaintiff, disowned responsibility for installation of the materials or supervision thereof, the selection of a roofing company to install the materials was beyond the scope of the authority of defendant's agent, and defendant may not be held liable to plaintiff for negligence of the agent in the selection of a roofing company to install the materials. 2. Rules of Civil Procedure 56.4 — summary judgment — deposition contradicting admissions in pleadings A party may not defeat summary judgment by presenting deposition testimony which contradicts the prior judicial admissions of his pleadings. 3. Parties 3 — failure to allege legal capacity of defendant — jurisdiction over individual Although the complaint named Junior Miller Roofing Company as defendant and failed to allege the legal capacity or status of defendant, the court had jurisdiction over the person of Junior Miller where the summons and complaint were served on Junior Miller Roofing Company "in the office of Junior Miller, owner, by leaving copies with Edna Miller, wife"; Junior Miller Roofing Company filed an answer and cross-claim under that name; Junior Miller filed an affidavit asserting that he was in the roofing business but that he was not incorporated as Junior Miller Roofing Company or in any other capacity; and in settling the record on appeal, Junior Miller stipulated that all parties were duly served and properly before the court. 4. Negligence 2 — negligence in repairing roof — issues of material fact Genuine issues of material fact were presented in an action against a roofing contractor to recover damages for alleged breach of contract and negligence in repairing a roof, and the trial court erred in entering summary judgment for defendant contractor.

1. Landlord and Tenant 8.2 — maintenance of common areas — duty of landlord to tenant A residential landlord in North Carolina owes his tenant a statutory duty of exercising ordinary or reasonable care to maintain common areas of the leased premises in a safe condition, and a violation of that duty is evidence of negligence. G.S. <cross_reference>42-42</cross_reference> (a)(3).<page_number>Page 226</page_number> 2. Landlord and Tenant 8.3 — fall by tenant on dimly lit steps — negligence and contributory negligence In an action by plaintiff tenant to recover for injuries received when she fell on defendant landlords' outside steps, the evidence on a motion for summary judgment presented a material issue of fact as to negligence by defendants where the jury could find that defendants allowed unlighted outside common area stairs to remain on their premises; such unlighted stairs were an unsafe condition; defendants knew or in the exercise of ordinary care should have known that the stairs were unlighted; defendants failed to exercise ordinary care to correct the unsafe condition caused by the unlighted stairs; and such failure was the proximate cause of plaintiffs injuries. Furthermore, the evidence on motion for summary judgment did not disclose contributory negligence by plaintiff as a matter of law where it showed that plaintiff was using a common area of defendants' premises intended for use by defendants' tenants when she was injured; plaintiff approached the steps cautiously and caught her foot on the edge of the first step while trying to find the second step in the darkness; an alternate lighted route was available to plaintiff; and before the accident plaintiff considered the steps to be defective and unsafe.

1. Criminal Law 75, 75.7 — statements to officers by defendant — no custodial interrogation — voluntary — properly admissible The trial court did not err in admitting into evidence three separate statements made by defendant, who was indicted for feloniously and willfully setting fire to his store and for five counts of first degree murder in connection with deaths resulting from the fire. Defendant made the first statement after going to the Law Enforcement Center voluntarily, voluntarily submitting to a polygraph test and after being told by the person administering the test that he did not believe defendant was telling the truth. Before he submitted to the test, defendant was read his rights and signed a waiver acknowledging that he was free to end the test and to leave at any time. After the first statement defendant was again advised of his rights but he was not under arrest and was told he could leave anytime. He made two more statements to two other officers. He was not arrested until three weeks later. Under these circumstances, defendant's statements were made voluntarily and while he was not in custody. 2. Constitutional Law 30 — sanctions for failure to comply with discovery — discretionary with judge Where a defendant follows the procedures for seeking discovery outlined in G.S. <cross_reference>15A-902</cross_reference> (a) and <cross_reference>15A-903</cross_reference> (d) and (e), and the State fails to comply with the court's order compelling discovery, there are several sanctions available to the court under G.S. <cross_reference>15A-910</cross_reference>, including prohibiting the noncomplying party from introducing evidence not disclosed. However, where the record on appeal did not contain defendant's initial G.S. <cross_reference>15A-902</cross_reference> letter nor his motion to compel discovery; where defendant only entered a general objection when a can of vinyl flooring was entered into evidence; and where there was no allegation the prosecutors acted in bad faith, the Court found no abuse of the trial court's discretion in allowing the flooring into evidence. 3. Constitutional Law 30 — failure to comply with discovery — admitting testimony discretionary Where the trial judge found that defendant was not prejudiced by the State's failure to furnish copies of tests which indicated that the fire defendant was accused of starting did not originate in the building's electrical system or furnace, and where the court offered defendant a reasonable time period in which to review the reports, the trial court did not abuse its discretion in admitting testimony concerning the tests. 4. Criminal Law 158 — failure to include photographs in record — no review Failure to include excepted-to photographs and film footage in the record is a violation of App. R. 9 (b)(3) and makes it impossible for the Court to rule on the admissibility of the evidence.<page_number>Page 270</page_number> 5. Criminal Law 43.4 — testimony concerning appearance of persons killed in fire proper Testimony about the appearance of firemen who died fighting the fire defendant was accused of starting was in no way incompetent or irrelevant to the issues being tried. 6. Criminal Law 50 — jury unable to draw on inferences — opinion testimony admissible In a prosecution concerning the felonious setting of a fire to defendant's store, it was not error to allow one fireman to testify the steam he observed was "an indication that they had hit the seat of the fire" and for another fireman to testify the smoke smelled like "burning oil or some type of petroleum product" as the facts upon which each opinion was based could not be described in a manner which would allow the jury to draw their own inferences. 7. Criminal Law 66.18 — waiver of objection to identification testimony — no error court's failure to exclude ex mero motu There was no error in the court's failure to exclude identification testimony of a witness ex mero motu at the end of a voir dire where the defense counsel chose to withdraw his objection to the testimony at the end of the voir dire. A defendant may, for whatever reason, waive the benefit of constitutional provisions by express consent. 8. Criminal Law 43.5 — videotape of unavailable witness's testimony — admission proper — cross-examination not thwarted The trial court did not err in admitting a videotape of a witness's testimony under the following facts: Defendant's trial was in its sixth week when the last witness for the State was hospitalized; the witness's physician would not allow the witness to return to the courtroom for at least two weeks, but would allow him to testify via videotape from the hospital; the trial judge presided over the videotaping session at which defendant, his counsel, and his expert advisor were present, and the defense counsel's cross-examination appeared thorough and unrestrained as it comprised 49 pages of the record on appeal. Admission of a witness's videotaped testimony in a criminal case does not constitute an inherent violation of a defendant's right to confront witnesses against him; however, the conditions under which such testimony is allowed must be controlled in the following manner: (1) There must be exceptional circumstances necessitating the procedure. (2) The witness must be unavailable to testify within a period of time after which the trial itself would be subject to mistrial. (3) The videotaped session must be under the control of the trial judge, and the defendant and his attorney must be allowed to attend. (4) Effective cross-examination by defendant must be unimpeded. (5) All measures must be taken to eliminate possible prejudice due to the location or condition of the witness. (6) The videotape shown to the jury must be clear. 9. Homicide 30.3 — submission of lesser included offense — no evidence supporting charge — harmless error Submission to the jury of the offense of involuntary manslaughter was error where the evidence supported the State's theory that five<page_number>Page 271</page_number> deaths resulted from defendant's feloniously and deliberately setting fire to his store. However, the error was not prejudicial. The jury's verdict finding him guilty of involuntary manslaughter implicitly but clearly rejected his defense that he did not commit the act upon which the charges were based. When the jury discarded defendant's sole defense, all the evidence pointed to the greater crime of felony murder. 10. Constitutional Law 34; Criminal Law 26.5 — convictions of involuntary manslaughter and unlawful burning — no double jeopardy Defendant's conviction of involuntary manslaughter and unlawful burning arising out of the same transaction did not constitute double jeopardy.

1. Criminal Law 75.1 — unreasonable seizure of person — statements inadmissible Statements obtained during an unreasonable seizure of the person are not admissible. 2. Criminal Law 75.1 — no seizure of person — admissibility of incriminating statements Defendant was never "seized" within the meaning of the Fourth Amendment to the U.S. Constitution, and his incriminating statement to officers at the sheriffs office prior to his formal arrest was thus not rendered inadmissible by Fourth Amendment exclusionary principles, where an officer first contacted defendant at his home at 4:00 p.m. and told defendant he needed to talk to him with reference to the death of defendant's wife; defendant sat in the patrol car at the officer's request and later agreed to accompany the officer to the jail; prior to 7:00 p.m. defendant voluntarily participated in the investigation of his wife's death when he submitted to interrogation; defendant would<page_number>Page 292</page_number> have been permitted to leave at any time he expressed a desire to do so; although the officer thought he had probable cause to arrest defendant at 7:00 p.m., he did not arrest defendant at that time; defendant was interrogated between 7:00 p.m. and 10:00 p.m., when he made the incriminating statement; and defendant's initial assent to submit to investigatory questioning and to accompany the officer to the jail remained unchanged throughout the evening. Furthermore, defendant's statement was properly considered in determining probable cause for issuance of a warrant for defendant's arrest, and defendant's subsequent statements to officers while he was in custody pursuant to an arrest warrant based on probable cause were not rendered inadmissible by Fourth Amendment exclusionary principles. 3. Criminal Law 75.11, 75.14 — incriminating statements — waiver of constitutional rights — competency of defendant The evidence on voir dire supported findings by the trial court, with regard to each of defendant's incriminating statements, that the officers fully explained his constitutional rights to him, that he indicated he understood them, and that defendant had in fact understood his rights and voluntarily waived them. Testimony elicited on voir dire that defendant did not sign a waiver form, that the officers did not know whether defendant could read or write, and that defendant jumped from one subject to another during questioning did not compel a finding that defendant was incompetent to waive his rights voluntarily and knowingly. 4. Criminal Law 76.4 — reopening of voir dire testimony — leading questions The trial court did not abuse its discretion in permitting the State to reopen the voir dire examination of a deputy sheriff during a hearing on defendant's motion to suppress incriminating statements or in allowing leading questions to the deputy upon the reopened voir dire. 5. Searches and Seizures 14 — seizure of pistol — consent to search An officer lawfully seized a pistol which he found between the mattress and springs of a bed in defendant's house where uncontradicted evidence showed that defendant knowingly and voluntarily consented to the officer's search of his house. 6. Homicide 20 — identity of pistol as murder weapon A pistol was sufficiently identified as the weapon used in the murder of defendant's wife for its admission into evidence where an officer testified that he found the pistol between the mattress and springs of a bed in defendant's house on the afternoon decedent was killed, that defendant told him that when he went to decedent's house that afternoon he had carried the pistol with him, and that the pistol was a small caliber weapon and the wound he observed on decedent's body was a small caliber wound, and where medical testimony established that decedent died from a single gunshot wound to the neck. 7. Criminal Law 63.1 — prior I.Q. tests — inadmissibility The trial court did not err in refusing to permit a psychiatrist who testified as to the result of an I.Q. test administered to defendant while defendant was being evaluated in connection with this<page_number>Page 293</page_number> case to give further testimony as to the results of other I.Q. tests previously administered to defendant where there was no evidence indicating when the prior tests were administered, since the relevance of these tests to defendant's mental capacity at the time the alleged crime was committed thus was not established. 8. Criminal Law 29.1 — mental capacity to stand trial at earlier time The trial court properly excluded testimony by a psychiatrist that defendant was incapable of standing trial when he was admitted to a hospital for evaluation six days after decedent's death and eleven months before trial since the issue of defendant's capacity to stand trial should have been determined prior to the trial, and since the appropriate issue would have been defendant's capacity to stand trial at the time of trial, not at the time of his hospitalization eleven months earlier. 9. Criminal Law 63.1 — prior hospitalizations for mental treatment — remoteness The trial court properly excluded testimony by an expert psychiatric witness as to what defendant had told him regarding his previous hospitalizations for mentally related problems during a period between 1958 and 1967 since such testimony concerned times too remote to have any relevance to defendant's mental condition at the time of decedent's death. 10. Criminal Law 33.3, 63.1 — mental competency — irrelevant testimony — absence of prejudice The defendant in a homicide case was not prejudiced by the testimony of a psychiatrist that sixty to seventy percent of the population has a neurosis and that, if the jurors are average citizens, a little over half of them have a neurosis. 11. Criminal Law 63.1 — insanity at time of crime — competency of testimony Testimony by a psychiatrist that "in the general sense" defendant knew the difference between right and wrong was relevant and admissible on the issue of whether defendant was legally insane and thereby exempt from criminal responsibility. 12. Homicide 21.9 — voluntary manslaughter — sufficiency of evidence The State's evidence, including incriminating statements made by defendant, was sufficient to support the conviction of defendant for involuntary manslaughter of his wife. 13. Homicide 27.2 — instructions on involuntary manslaughter — meaning of criminal negligence The trial court did not err in instructing that involuntary manslaughter is the unintentional killing of a human being by an unlawful act not amounting to a felony or by an act done in a criminally negligent way without explaining the meaning of "criminal negligence" where the court further explained that to find defendant guilty of involuntary manslaughter, the jury must find that defendant's act was unlawful, and that the act was unlawful if it was an assault with a deadly weapon.<page_number>Page 294</page_number>

Administrative Law 5; Hospitals 2.1 — health care facility — exemption from certificate of need requirement — final agency decision — aggrieved party — judicial review A letter from the Department of Human Resources informing respondent that the Department was satisfied that respondent had commenced construction of a health care facility prior to 1 January 1980 and could proceed without meeting the requirements of the Certificate of Need Law, G.S. 131-175 et seq. was a final agency decision in a contested case as required for judicial review pursuant to G.S. 150A-43. Furthermore, petitioner, a prospective competitor of respondent, was a "person aggrieved" and could seek judicial review of the Department's decision that respondent was not required to obtain a certificate of need in order to construct the health care facility. G.S. 131-176 (6), (9); G.S. 131-185 (b); G.S. 150A-2.

1. Criminal Law 91.6 — codefendant pleads not guilty — motion for continuance denied There was no abuse of discretion in the denial of defendant's motion for a continuance on grounds that a codefendant's decision to plead guilty and testify for the State, made shortly after the case was called for trial, came as a surprise and hindered his ability to impeach the codefendant's testimony. Defense counsel was never assured the codefendant would plead not guilty, the taking of his plea was out of the presence of the jury and was a proper procedural matter, and defendant was given an opportunity to cross-examine the codefendant. 2. Criminal Law 34.8; Larceny 6 — testimony of prior crimes — competent to show plan or scheme Testimony that defendant, who was charged with conspiracy to commit larceny, dealt regularly in the purchase and resale of stolen goods was admissible to show intent to commit a conspiracy to effect larceny and to show a plan or scheme for the commission of the crime. 3. Criminal Law 74.3 — testimony concerning codefendant's guilty plea proper Questions posed to a codefendant concerning his guilty plea were not improper as he testified for the State concerning facts tending to establish his own guilt and his guilty plea was not used as evidence of defendant's guilt. 4. Conspiracy 6 — conspiracy to commit larceny — sufficiency of the evidence The trial judge did not err in failing to grant defendant's motions for nonsuit, to set aside the verdict, and for a new trial in a prosecution for conspiracy to commit larceny. Evidence that defendant and the State's witness, Foust, talked several times about procuring stolen tobacco; that Foust and another conspirator, Burgess, discussed getting a load of tobacco from defendant; that arrangements were made to secure the tobacco; that Foust and Burgess were prepared to pick up and pay for the tobacco; and that the tobacco was owned by someone other than defendant was sufficient to withstand the motions. The<page_number>Page 329</page_number> implied understanding that the tobacco would be stolen was sufficient and no overt act was necessary to establish the conspiracy. 5. Conspiracy 5.1 — statement of coconspirator — not in furtherance of conspiracy Admission of a statement of a coconspirator which was not made in furtherance of the conspiracy was not sufficiently prejudicial as to require the granting of a new trial as the statement was not the only evidence in the record tending to show the existence of the conspiracy. 6. Criminal Law 102.2 — argument not immoderate The district attorneys argument was not immoderate, and because the supposed impropriety of a challenged remark was not extreme or calculated to prejudice the jury, the Court declined to review the trial courts exercise of discretion. 7. Larceny 8 — instructions — application of law to charges There was no merit to defendant's argument that the judge failed to charge the jury on the application of the law to the particular allegations in the indictment which charged defendant with conspiracy to commit larceny.

1. Burglary and Unlawful Breakings 5.8; Larceny 7.8 — intent to commit larceny — sufficiency of evidence The evidence was sufficient to raise a reasonable inference that defendant broke and entered two premises with intent to commit larceny where it tended to show: Defendant, a stranger to each of the owners, rang a doorbell and uninvitedly entered one set of premises when no one answered and then fled when discovered by one of the occupants. Thereafter, defendant threw a propane tank through a glass door at other premises and entered without permission when the owner was absent and then removed a screen on another door and fled when discovered by the owner's neighbor. Defendant continued to flee in his automobile when pursued by police. 2. Criminal Law 102.6 — jury argument — objected portion not in record — correct instructions on objected point Where the record was not clear as to what a district attorney said in his challenged argument, the record did not contain defense counsel's argument — leaving open the possibility misstatements by the district attorney were provoked, and where the trial judge correctly instructed the jury on the law, any error in the district attorney's argument was found to be nonprejudicial.

Insurance 44 — disability benefits — order to pay future benefits proper In an action by plaintiff to recover disability benefits which had been discontinued by defendant insurance company, where the jury returned a verdict finding defendant to be eligible for the disability benefits, it was not error for the court to order that "[p]laintiff shall be paid in the future at the rate of $900.00 per month so long as his total disability continues and he survives, but not beyond plaintiff insured's 65th birthday . . . ." Once the jury established the fact of plaintiffs disability by its verdict, a presumption arose that his condition would continue. When the court directed the insurance company to pay the future installments for disability as they accrue, he was exercising sound discretion.

1. Automobiles 88 — contributory negligence — sufficiency of evidence In an automobile accident case where plaintiff's motorcycle hit the rear of defendant's car as defendant's car was turning into a driveway, the evidence was sufficient to require submission of the issue of contributory negligence to the jury as the jury could find the plaintiff contributorily negligent in that he (1) drove at a speed greater than reasonable in violation of G.S. <cross_reference>20-141</cross_reference> (a), (2) failed to keep a reasonable lookout, and (3) failed to maintain proper control. 2. Automobiles 72.1 — sudden emergency — failure to instruct proper There was no error in the court's failure to charge on the doctrine of sudden emergency where the evidence tended to show that plaintiff, if negligent, was negligent in creating the emergency in that he failed to keep a reasonable lookout, to maintain proper control, or drove at an excessive speed. The doctrine of sudden emergency applies in situations where defendant's negligence creates the sudden emergency and plaintiff's acts have not brought about or contributed to the emergency. 3. Trial 33.3 — instructions — summarizing contentions of parties In an automobile accident case, plaintiff's argument that the court erred in failing to summarize the investigating officer's testimony was without merit as the trial judge is not required to name and summarize<page_number>Page 451</page_number> the testimony of each witness. G.S. <cross_reference>1A-1</cross_reference>, Rule 51 (a) requires the judge to state the evidence necessary to explain the application of the law and to give equal stress to the contentions of the various parties.

Damages 5, 17 — breach of express warranty — excessive verdict — erroneous instructions to jury In an action to recover for flood damage to a home purchased by plaintiffs from defendants, the jury returned a verdict in excess of the amount to which plaintiffs may have been properly entitled. The errors in the damages awarded stemmed from the court's instructions to the jury as the court failed to explain to the jury the relationship between the evidence presented at trial and the issues involved. Further, by submitting both the issue on false representation and the issue on breach of warranty to the jury, the court allowed plaintiffs to recover twice for the same damages.<page_number>Page 515</page_number>

Limitation of Actions 8.2; Patents 1 — fraud in obtaining patent right — statute of limitations applicable — summary judgment proper In an action in which plaintiff alleged defendant defrauded him by paying a grossly inadequate consideration for an invention used in defendant's mill and by obtaining a patent for that invention in defendant's name, summary judgment for defendant was proper. The uncontraverted facts established that more than three years before he filed the lawsuit plaintiff knew or with due diligence should have known the facts constituting the alleged fraud, and under G.S. <cross_reference>1-52</cross_reference> (9) actions based on fraud or mistake are governed by a three year statute of limitations.

Hospitals 3.1 — charitable hospital — corporate negligence — prospective application of decision The doctrine of corporate negligence adopted in Bost v. Riley, <cross_reference>44 N.C. App. 638</cross_reference> (1980), pursuant to which a charitable hospital may be found liable to a patient for violations of duties owed directly to the patient by the hospital, is to be applied prospectively and not retroactively. Therefore, the doctrine of charitable immunity barred plaintiffs claim against defendant hospital for alleged negligence in failing to have an established policy at the time of plaintiff's birth in 1961 prohibiting the administration of oxygen exceeding 40% fraction of inspired air to premature newborns so that defendant's agents administered excessive oxygen to plaintiff following her premature birth and caused her to develop retrolental fibroplasia and to become totally blind.

Uniform Commercial Code 8 — sales contract — not between merchants — writing requirement violated Defendant, a real estate broker, did not qualify under the merchant exception of N.C.G.S. <cross_reference>25-2-201</cross_reference> (2) as the contract, if any, between plaintiff and defendant was for $11,083.63 worth of mozzarella cheese and the purchase did not relate to the business or occupation of defendant. As defendant did not qualify as a merchant and the sale involved an amount greater than $500 the contract was required to be in writing. N.C.G.S. <cross_reference>25-2-201</cross_reference> (1).