Volume 66 — North Carolina Court of Appeals Reports

1. Homicide 21.7 — second degree murder — sufficiency of evidence The evidence was sufficient to withstand defendant's motion to dismiss a charge of second degree murder where one witness testified that defendant pointed and fired his gun in the direction of the victim when the two were three or four feet apart, before they started wrestling, and where there was evidence that defendant may have provoked the assault by the victim, thus removing any claim of self-defense. 2. Homicide 30.3 — failure to instruct on voluntary and involuntary manslaughter — error The trial judge erred in failing to instruct on voluntary manslaughter and involuntary manslaughter where defendant, in response to a request for payment by the owner of a drinking establishment, pulled out a gun and a fight ensued; where defendant and several witnesses testified that defendant did nothing to provoke the fight; that defendant neither pulled the gun out in a threatening manner nor used threatening or provoking language; that defendant testified that he did not know why the owner/victim charged toward him; where testimony from several witnesses indicated that the gun discharged during the time that defendant and the victim were wrestling; and where there was evidence tending to show that the victim was a bigger, stronger man than defendant and that the victim had a blood alcohol level of 0.14%

1. Criminal Law 23, 138 — plea arrangement for a consolidation of cases — not as to sentence Where defendant's plea arrangement was simply to consolidate all three cases into one judgment for sentencing purposes and did not contain a bargain for the prosecutor's recommendation of a particular sentence, the arrangement did not limit the trial judge's opportunity<page_number>Page 275</page_number> to exercise his discretion in determining an appropriate sentence, and the trial judge was required to make proper findings in aggravation and mitigation to support the sentence. 2. Criminal Law 138 — aggravating factor of deterrent to others improperly considered The trial court erred in considering as an aggravating factor that defendant's sentence would serve as a "deterrent to others," since it does not relate to the character or conduct of the offender. 3. Criminal Law 138 — consideration of defendant's mental defects as mitigating and aggravating factor — proper The trial court could consider defendant's mental defects as supporting an aggravating factor as well as a mitigating factor. 4. Criminal Law 138 — considering of mental defects for more than one aggravating factor — error The trial court erred in using defendant's mental problems to support four aggravating factors since the same item of evidence may not be used to prove more than one factor in aggravation. G.S. 15A-1340.4(a)(1). 5. Criminal Law 138 — consideration of aggravating factor supported by evidence of pre-Act crime — improper Where, pursuant to a plea arrangement, three charges against defendant were consolidated for sentencing purposes, and where only one of the crimes occurred after the date the Fair Sentencing Act became applicable, and where there was no evidence that a deadly weapon was used in the commission of that crime. The trial court erred in finding as a statutory aggravating factor that "The defendant was armed with or used a deadly weapon at the time of the crime." 6. Criminal Law 138 — consideration of possible concurrent sentences error Where the trial judge accepted a plea bargain arrangement in which it was agreed to consolidate three cases for sentencing under one judgment and not treat the offenses separately, the trial court could not find as a factor in aggravation that defendant "could be given consecutive sentences, but is being given a concurrent sentence."

1. Master and Servant 93.3 — deposition of doctor — no formal introduction into evidence A doctor's deposition was of record in a workers' compensation case, although it was not formally introduced into evidence, where defense counsel indicated at the conclusion of the initial hearing that they wished to take the doctor's testimony at Duke University Medical Center; the hearing commissioner gave the parties 60 days in which to depose the doctor; and once the doctor's deposition was completed, the original transcript was forwarded to the hearing commissioner by the court reporter, with a copy sent to each attorney. Industrial Commission Rule XXA. 2. Master and Servant 93.2 — workers' compensation — additional deposition testimony — objections and motions to strike — ruling by hearing commissioner It is incumbent upon the party wishing to exercise his reserved right to object or move to strike additional deposition testimony to request the hearing commissioner to rule on the specific deposition questions and answers which the party finds objectionable, with the grounds upon which the objection is taken clearly stated, and the hearing commissioner, in turn, must formally enter his or her ruling into the record before an award. 3. Master and Servant 93.2 — worker's compensation — ruling on objections to deposition testimony A hearing commissioner sufficiently ruled on plaintiff's objections to additional deposition testimony where a note containing the ruling was stapled to the deposition. 4. Evidence 50 — opinion by expert medical witness — information supplied by others An expert medical witness may give his opinion, including a diagnosis, based either on personal knowledge or observation or on information supplied him by others, including the patient, if such information is inherently reliable, even though it is not independently admissible, into evidence. If his opinion is admissible, the expert may testify to the information he relied on informing his opinion for the purpose of showing the basis thereof. 5. Evidence 50.2; Master and Servant 93.3 — worker's compensation — medical testimony incompetent on question of causation A physician's "educated guess" that plaintiff would have deteriorated from his degenerative nerve disease at about the same time regardless of his compensable work-related injury was incompetent as expert opinion evidence on causation.<page_number>Page 557</page_number> 6. Master and Servant 67.3 — workers' compensation — aggravation or acceleration of preexisting condition — insufficient evidence to support finding The evidence in a workers' compensation proceeding was insufficient to support a determination by the Industrial Commission that plaintiff's preexisting hereditary degenerative nerve disease was not aggravated or accelerated by a compensable work-related fracture of his leg and the resulting inactivity while his leg was in a cast for some seven months, and the cause must be remanded for appropriate findings and conclusions where there was evidence to support a contrary determination.

1. Constitutional Law 48 — failure to demonstrate ineffective assistance of counsel There was no merit to defendant's contentions that he was denied effective assistance of counsel when he failed to object to testimony from a witness which was admissible as a shorthand statement of fact and when his counsel failed to request an instruction on defense of accident since defendant was not entitled to such an instruction. 2. Assault and Battery 14.4 — no prejudicial error in submission of issue to jury which was unsupported by evidence Defendant failed to show prejudice in the trial court's submission to the jury of the issue of assault with intent to kill inflicting serious injury under G.S. <cross_reference>14-32</cross_reference> (a) in that there was no evidence of intent to kill since the jury convicted defendant of the lesser included offense described in G.S. <cross_reference>14-32</cross_reference> (b), assault with a deadly weapon inflicting serious injury.