ADMINISTRATIVE LAW AND PROCEDURE 54 (NCI4th). The superior court has only appellate jurisdiction over final decisions of the State Personnel Commission on State employee grievances. Harding v. N.C. Dept. of Correction, APPEAL AND ERROR 48 (NCI4th). The Court of Appeals did not err by vacating the superior court's judgment in a prosecution for publishing unsigned materials about a candidate for public office on the ground that the record on appeal showed that the superior court lacked original subject matter jurisdiction to try these misdemeanor charges on the basis of grand jury indictments. State v. Petersilie, 362 (NCI4th). A statement in the trial transcript by the district attorney informing the court that the misdemeanor charges originated by presentment was insufficient to comply with the requirement of Appellate Rule 9(a)(3)(e) that the record shall contain "copies of all warrants, informations, presentments, and indictments upon which the case has been tried in any court." State v. Petersilie, 367 (NCI4th). The Court of Appeals did not err when it denied the State's motion to amend the record on appeal by adding copies of the presentment upon which misdemeanor charges were initiated against defendant to show that the superior court had jurisdiction over the case, but the Supreme Court elects to allow the amendment so that it may reach the substantive issues of the appeal. State v. Petersilie, 471 (NCI4th). While the decision to grant or deny a continuance traditionally rests within the discretion of the trial court, that discretion does not extend to the point of permitting the denial of a continuance that results in a violation of a defendant's right to due process. State v. Tunstall, CONSTITUTIONAL LAW 288 (NCI4th). Implicit in the constitutional provisions guaranteeing the assistance of counsel and the right to confront witnesses is the requirement that an accused have a reasonable time to investigate, prepare and present a defense. State v. Tunstall, 309 (NCI4th). A murder defendant was not deprived of the effective assistance of counsel where his counsel argued without his consent that, if the evidence tended to establish the commission of any crime, that crime was voluntary manslaughter. State v. Harvell, 327 (NCI4th). Defendant was not denied his Sixth Amendment right to a speedy trial by the delay between a 3 February 1988 Supreme Court decision awarding defendant a new trial for first-degree murder and the 8 October 1990 date initially selected by the State for his retrial because of the admission in defendant's retrial of testimony given at defendant's first trial by a witness who died before the retrial where defendant impeached the witness at the retrial as effectively as if he had survived to testify. State v. McCollum, 343 (NCI4th). Any violation of defendant's right to be present at every stage of his capital trial by the admission into evidence of videotaped depositions taken outside defendant's presence was harmless. State v. McCollum, 347 (NCI4th). Implicit in the constitutional provisions guaranteeing the assistance of counsel and the right to confront witnesses is the requirement that an accused have a reasonable time to investigate, prepare and present a defense. State v. Tunstall, 349 (NCI4th). Assuming that the trial court erred by failing to exclude in defendant's retrial testimony given at defendant's first trial by a witness who died before the retrial, this error was harmless and defendant's Sixth Amendment right to confront this witness was not denied where defendant impeached the witness as effectively as if he had survived to testify and be cross-examined at the retrial. State v. McCollum, 354 (NCI4th). Where a State employee was informed during an internal investigation that refusal to answer questions about his employment could result in his dismissal and the State did not seek a waiver of the employee's immunity from the use of his answers in any criminal action against him, the State did not violate the employee's Fifth Amendment right against self-incrimination by terminating him for refusing to answer questions without advising him that his answers could not be used against him in any criminal prosecution or that the questions would relate specifically and narrowly to the performance of official duties. Debnam v. N.C. Dept. of Correction, CONTEMPT OF COURT 2 (NCI4th). The doctrine of sovereign immunity barred the superior court from holding the N. C. Dept. of Transportation in contempt. N.C. Dept. of Transportation v. Davenport, 8 (NCI4th). Where the superior court lacked jurisdiction to order respondent State agency to pay a specific amount of back pay to petitioner, the order could not be the basis of punishment for civil contempt. Harding v. N.C. Dept. of Correction, COSTS 36 (NCI4th). Santions under G.S. 6-21.5 may be appropriate despite a layperson's reliance on legal advice if the layperson persists in litigating the case after a point where he should reasonably have become aware that the pleading he filed no longer contained a justiciable issue. Brooks v. Giesey, Even though the trial court did not make a specific finding that plaintiffs should reasonably have been aware of the deficiencies in their claims, the trial court's order contains sufficient findings and conclusions to support its award of attorney's fees to defendants under G.S. 6-21.5. Ibid. CRIMINAL LAW 67 (NCI4th). The Court of Appeals did not err by vacating the superior court's judgment in a prosecution for publishing unsigned materials about a candidate for public office on the ground that the record on appeal showed that the superior court lacked subject matter jurisdiction to try these misdemeanors on the basis of grand jury indictments. State v. Petersilie, 113 (NCI4th). There was no prejudice in a murder, robbery, and burglary prosecution in the State's failure to divulge defendant's statements to people other than law enforcement officers as directed by the court because the statements were never introduced into evidence, no attempt was made to offer the statements, the prosecutor referred to them only in his opening statement, and there was no reasonable possibility of a different result had the error not been committed in light of the strong evidence against defendant. State v. Marlow, 129 (NCI4th). A first degree murder defendant's federal and state due process rights were not violated when the state rejected his pleas of guilty to second-degree murder and other offenses where the trial judge indicated that he could not accept the codefendant's plea to first-degree murder based on felony murder absent a finding of no aggravating circumstances, the State indicated that the arrangement was a package, and the court rejected the pleas from defendant and the codefendant. State v. Marlow, 261 (NCI4th). A defendant in a first-degree murder prosecution failed to offer evidence tending to establish a violation of his constitutional right to investigate, prepare and present his defense through the denial of his motion for a continuance. State v. Tunstall, 329 (NCI4th). There was no abuse of discretion in a prosecution for murder, robbery, and burglary in granting the State's motion to sever defendant's trial from that of his codefendant on the morning of the trial. State v. Marlow, 441 (NCI4th). The prosecutor's jury argument asking the jury to consider why a psychologist had waited seven years to examine the defendant was a permissible challenge to the accuracy of the psychologist's conclusions in light of the passage of time between the crime and her first examination of defendant and was not an improper attempt to alert the jury that defendant had been tried on a previous occasion. State v. McCollum, 442 (NCI4th). The prosecutor's argument that "if you let this man have his life, you will be doing yourself, your community a disservice" was not improper. State v. McCollum, A prosecutor's remarks in the opening and closing arguments of a murder prosecution were not grossly improper where the trial was held in Stanly County but defendants were from Montgomery County and defendant contended that the prosecutor impermissibly framed the case as Stanly County against Montgomery County. State v. Harvell, 447 (NCI4th). The prosecutor's remarks during his closing argument in a capital sentencing proceeding regarding the impact of the child victim's death on her father and the fact that he wanted revenge were not so grossly improper as to require the trial court to intervene ex mero motu. State v. McCollum, 452 (NCI4th). The prosecutor's jury argument during a capital sentencing proceeding that it should weigh each individual mitigating circumstance against all of the aggravating circumstances in a "divide and conquer" approach was not so grossly improper as to require the trial court to intervene ex mero motu. State v. McCollum, The prosecutor's jury arguments during a capital sentencing proceeding that "if the aggravating circumstances don't outweigh the mitigating circumstances that you may find, then there will never be a case where they do" and that "this is probably the most cruel, atrocious and heinous crime you'll ever come in contact with" were not improper statements of the prosecutor's personal opinions but were proper arguments that the jury should conclude from the evidence that imposition of the death penalty was proper in this case. Ibid. 454 (NCI4th). Assuming that it was improper for the prosecutor to repeatedly ask the jurors during his closing argument in a capital sentencing proceeding to imagine the eleven-year-old victim as their own child, these portions of the prosecutor's argument did not deny defendant due process. State v. McCollum, The prosecutor's closing argument in a capital sentencing proceeding that "you aren't the ones that are imposing the punishment yourself. It's your recommendation that's binding on the court . . ." did not misstate the law and did not tend to diminish the jury's responsibility. Ibid. 508 (NCI4th). There was no abuse of discretion in denying defendant's motion for a mistrial where defendant's motion was based upon allegations that verbal and nonverbal hearsay of a coconspirator was admitted against defendant after the conspiracy had ended. State v. Marlow, 681 (NCI4th). The failure of the jury in a capital sentencing proceeding to find the impaired capacity mitigating circumstance did not violate defendant's Eighth and Fourteenth Amendment rights even though the trial court gave a peremptory instruction on this circumstance. State v. McCollum, 762 (NCI4th). The trial court erred in a noncapital first-degree murder prosecution by instructing the jury that a reasonable doubt is an honest substantial misgiving generated by the insufficiency of the proof and by telling the jury that they could find defendant guilty if they were satisfied to a moral certainty in the defendant's guilt. State v. Bryant, 775 (NCI4th). The trial court did not err in a first-degree murder prosecution by not giving defendant's requested instruction on voluntary intoxication where the conviction of second-degree murder which defendant received was precisely the verdict to which he would have been entitled if the jury had determined that he did not form a specific intent to kill after premeditation and deliberation due to his intoxication. A defendant's voluntary intoxication will not prevent a determination that he acted in concert with another. State v. Marlow, 794 (NCI4th). The trial court did not err by refusing to give defendant"s requested instructions on acting in concert in a murder prosecution where the evidence, if believed, would only support a determination that the killing was done pursuant to a common purpose and would not support a reasonable finding that the killing was an independent act by the codefendant. State v. Harvell, The trial court correctly refused defendant's requested instruction on mere presence in a murder prosecution where the evidence did not support the instruction. Ibid 1318 (NCI4th). The trial court did not err by instructing the jury that the imposition of the death penalty would be proper if the State proved beyond a reasonable doubt, inter alia, that "the defendant himself killed the victim, or intended to kill the victim, or was a major participant in the underlying felony and exhibited reckless indifference to human life." State v. McCollum, 1338 (NCI4th). The trial court properly submitted the aggravating circumstance that a first-degree murder was committed for the purpose of avoiding or preventing a lawful arrest where defendant's actions showed that he adopted his companion's statement that they had "to kill her to keep her from telling the cops on us." State v. McCollum, There was no merit to defendant's contention that since the jury failed to convict him of first-degree murder under a theory of premeditation and deliberation, the jury could not reasonably find that he acted intentionally and with premeditation during the sentencing phase and thus could not find the aggravating circumstance that he participated in the killing to avoid arrest. Ibid. 1343 (NCI4th). The trial court did not err by instructing the jury in a capital sentencing proceeding that it could find the especially heinous, atrocious or cruel aggravating circumstance if "this murder" was especially heinous, atrocious or cruel rather than requiring the jury to find that this aggravating circumstance was supported by the defendant's own conduct where defendant was an active participant in the murder. State v. McCollum, 1373 (NCIth). A sentence of death imposed on defendant for felony murder of a eleven-year-old girl premised upon the felony of first-degree rape was not excessive or disproportionate considering the crime and the defendant. State v. McCollum, ELECTIONS 13 (NCI4th). As used in the statute making it unlawful for anyone to publish any charge derogatory to a candidate or calculated to affect the candidate's electoral chances without signing the publication, the term "charge" is interpreted to mean an accusation of wrongdoing, and when so interpreted, the statute is not unconstitutionally vague. State v. Petersilie, The statute making it unlawful for anyone to publish any charge derogatory to an election candidate or calculated to affect the candidate's electoral chances without signing the publication is not constitutionally overbroad so as to violate free speech guarantees in the federal and state constitutions. Ibid. The trial court erred by instructing the jury that, in order to convict defendant of publishing unsigned materials about two candidates for public office, it must find that defendant published a charge "he intended" to be derogatory to a candidate for election to the Boone Town Council or which he calculated would affect such candidate's chances of election, since the jury's determination of whether the material was a derogatory charge is not based on defendant's intention but on its objective interpretation of the publication. Ibid. EVIDENCE AND WITNESSES 165 (NCI4th). A note written by the victim on the date of her death indicating that the victim was scared of defendant because he had threatened to kill her with a gun earlier that evening was admissible to show the victim's state of mind and to show premeditation and deliberation. State v. Shoemaker, 263 (NCI4th). The trial court erred in a first-degree murder prosecution in allowing the State to cross-examine defendant about the details of past convictions. State v. Lynch, 287 (NCI4th). Evidence of a murder defendant's prior offenses was not admissible under G.S. 8C-1, Rule 404(b) where the Supreme Court could discern no logical relationship between the details of the prior crimes brought out on cross-examination and the crimes charged. State v. Lynch, 725 (NCI4th). There was prejudicial error in a first degree-murder prosecution where the court permitted the State to cross-examine defendant about prior offenses. State v. Lynch, 758 (NCI4th). There was no prejudice in a murder prosecution from the testimony of a guard that a defendant had said something which indicated that he was planning to shoot a woman where the guard could not remember what defendant had said but there was other strong and unequivocal evidence of direct threats against a woman by defendant while he was in her presence and armed. State v. Harvell, 876 (NCI4th). Testimony that a murder victim told a friend approximately a week before she was killed that she intended to end her relationship with defendant when he returned from a trip was admissible as evidence of the victim's mental or emotional condition at the time she made the statement. State v. Shoemaker, 906 (NCI4th). Testimony by two candidates for public office as to the actual opinions expressed by certain local residents out of court concerning whether unsigned materials were derogatory or hurtful to their chances of being elected was admitted for the truth of what was said and was inadmissible hearsay. State v. Petersilie, 1154 (NCI4th). There was no prejudice in a murder prosecution from the admission of testimony regarding statements made by a codefendant where the statements were neither made during the conspiracy nor in furtherance of it and did not fall within the coconspirator's exception to the hearsay rule. Furthermore, the evidence against defendant was overwhelming. State v. Marlow, 1341 (NCI4th). The trial court did not err by failing to exclude from evidence defendant's statements to police officers on the ground that defendant's mental retardation and emotional disabilities prohibited him from knowingly and intelligently waiving his constitutional rights. State v. McCollum, 1695 (NCI4th). A photograph showing a homicide victim's neck and throat during the autopsy was properly admitted to illustrate the medical examiner's testimony as to the cause of death, and two photographs of the victim's body depicting the decomposition process at both the crime scene and at the time of the autopsy were properly admitted to illustrate testimony by as SBI agent and by the medical examiner. State v. McCollum, 2047 (NCI4th). Testimony by election candidates as to opinions expressed by local residents out of court concerning whether unsigned materials were derogatory or hurtful to their chances of being elected was not admissible as lay witness opinion testimony under Rule of Evidence 701 because neither witness was testifying as to his or her own opinion. State v. Petersilie, 2051 (NCI4th). The trial court did not err in a prosecution for murder, robbery, and burglary by allowing a witness to testify regarding another person's state of mind when the site of the killing was pointed out. State v. Marlow, 2089 (NCI4th). Testimony by various witnesses that defendant appeared carefree, extremely calm, nonchalant, very unconcerned, and uncaring on the night of a shooting was admissible opinion evidence based on the witnesses' observations of defendant's demeanor. State v. Shoemaker, 2265 (NCI4th). The trial court in a first-degree murder case did not err by admitting a forensic pathologist's opinion that it was highly unlikely that the victim's wound was self-inflicted. State v. Shoemaker, 2803 (NCI4th). Questions asking witnesses about defendant's emotional state or demeanor on the night of a shooting were not leading because they did not suggest a desired response. State v. Shoemaker, 2807 (NCI4th). There was no abuse of discretion in a prosecution for murder, robbery, and burglary where the prosecutor was allowed to lead a witness on direct examination because the testimony related to equivalent testimony that was introduced earlier in the trial. State v. Marlow, 2916 (NCI4th). Details of defendant's prior convictions were not admissible in a murder prosecution where the State contended that the governing rule is G.S. 8C-1, Rule 611(b) rather than 609(a) because the evidence arose during cross-examination rather than on direct. Rule 611(b) neither stands alone nor preempts other rules of evidence. State v. Lynch, 2983 (NCI4th). The trial court erred in a first-degree murder trial by allowing the district attorney to exceed the scope of the allowable inquiry in cross-examining defendant about prior convictions. State v. Lynch, 3019 (NCI4th). A murder defendant did not open the door to cross-examination about prior offenses with his brief summary of his criminal record where his summary was accurate and complete and he did not use it to create inferences favorable to himself. State v. Lynch, 3106 (NCI4th). An SBI agent's testimony was properly admitted for the purpose of corroborating defendant's ex-wife's earlier testimony about a gun owned by defendant where the SBI agent's testimony added specific details to her description of defendant's gun. State v. Shoemaker, 3161 (NCI4th). The trial court did not err in a prosecution for murder, robbery, and burglary by allowing a witness to testify that a third party had asked a codefendant if he had killed someone where the testimony was admissible to corroborate prior testimony. State v. Marlow, 3191 (NCI4th). There was no plain error in a prosecution for murder, robbery, and burglary in not requiring someone other than the law enforcement officers to whom statements were given to read the statements to the jury for purposes of corroboration. State v. Marlow, HOMICIDE 226 (NCI4th). There was sufficient circumstantial evidence for the jury to find that defendant was the perpetrator of a first-degree murder of the woman with whom he was living. State v. Shoemaker, 230 (NCI4th). There was sufficient evidence of first-degree murder to withstand defendant's motion to dismiss and take the case to the jury. State v. Bryant, 250 (NCI4th). The State's evidence, including a note written by the victim on the date of her death indicating that defendant had pulled a gun on her and threatened her life, was sufficient to take the issue of premeditation and deliberation to the jury in a first-degree murder prosecution. State v. Shoemaker, 558 (NCI4th). The evidence did not require the trial court in a first-degree murder prosecution to instruct on the lesser-included offense of voluntary manslaughter. State v. Shoemaker, 658 (NCI4th). The trial court in a first-degree murder prosecution did not err by failing to instruct the jury on voluntary intoxication because the evidence would not support a reasonable finding that defendant was "utterly incapable" of forming a premeditated and deliberated intent to kill. State v. Shoemaker, 706 (NCI4th). The trial court's failure to instruct on the lesser-included offense of voluntary manslaughter was harmless error where the court instructed on first-degree and second-degree murder and the jury returned a verdict of guilty of first-degree murder. State v. Shoemaker, INSURANCE 499 (NCI4th). The public policy goals of the Financial Responsibility Act did not preclude application of the entitlement exclusion of an automobile liability policy where the Act provided no mandatory coverage to the tortfeasor. Newell v. Nationwide Mut. Ins. Co., 598 (NCI4th). The insured's son was excluded from coverage under an automobile liability policy while driving the insured's vehicle by the "entitlement" exclusion of the policy, even though he was a "family member" within the meaning of the policy, where he had been forbidden to use the insured's vehicles. Newell v. Nationwide Mut. Ins. Co., 1175 (NCI4th). The insured's son was excluded from coverage under an automobile liability policy while driving the insured's vehicle by the "entitlement" exclusion of the policy, even though he was a "family member" within the meaning of the policy, where he had been forbidden to use the insured's vehicles. Newell v. Nationwide Mut. Ins. Co., JURY 150 (NCI4th). The trial court did not abuse its discretion in a capital trial by excusing for cause two prospective jurors who had expressed unequivocal opposition to the death penalty without allowing defendant to propound further questions in an attempt to rehabilitate them. State v. McCollum, 248 (NCI4th). When the trial court determines that the State improperly exercised peremptory challenges to remove prospective jurors on the basis of race, the better practice is for the court to begin the jury selection anew with a new panel of prospective jurors; assuming arguendo that the trial court erred in failing to reinstate three improperly removed jurors, such error was harmless since the trial court's order that the jury selection process begin again with a new panel provided defendant with the same remedy which he now contends he should receive -- trial by a jury selected on a nondiscriminatory basis. State v. McCollum, LIMITATIONS, REPOSE, AND LACHES 44 (NCI4th). Plaintiff's claims against a police officer for assault and false imprisonment are governed by the three-year statute of limtations of G.S. 1-52(13) for actions "against a public officer, for a trespass, under color of his office," rather than the one-year limitation on actions for "libel, slander, assault, battery, or false imprisonment" set forth in G.S. 1-54(3). Fowler v. Valencourt, MORTGAGES AND DEEDS OF TRUST 12 (NCI4th). Foreclosure under a purchase money deed of trust was a condition precedent to petitioners' exercise of their right to foreclose on property conveyed in a supplemental deed of trust providing additional security for the purchase money note, and because petitioners released the property encumbered by the purchase money deed of trust, the condition precedent could not occur. In re Foreclosure of Goforth Properties, Inc., 119 (NCI4th). Provisions of a supplemental deed of trust purporting to provide additional security for a purchase money note violated the anti-deficiency judgment statute and were not enforceable. In re Foreclosure of Goforth Properties, Inc., MUNICIPAL CORPORATIONS 154 (NCI4th). A town board of commissioners has the authority to abolish a board of adjustment and to thereafter create a new board of adjustment and make appointments thereto. The statutory prohibition against reduction in the length of the terms of the members of the existing board of adjustment does not diminish the authority of the board of commissioners to abolish the board of adjustment; however, the board of commissioners cannot abolish and reestablish the board of adjustment at its whim. Board of Adjustment of the Town of Swansboro v. Town of Swansboro, PENALTIES 7 (NCI4th). N.C. Const. art. IX, 7 requires that the clear proceeds from the sale of RICO forfeited property be paid to the public school fund. State ex rel. Thornburg v. House and Lot, PUBLIC OFFICERS AND EMPLOYEES 59 (NCI4th). The superior court lacked jurisdiction to enter an order awarding a specific amount of back pay to a State employee. Harding v. N.C. Dept. of Correction, 63 (NCI4th). The superior court has only appellate jurisdiction over final decisions of the State Personnel Commission on State employee grievances. Harding v. N.C. Dept. of Correction, 65 (NCI4th). Where a State employee was informed during an internal investigation that refusal to answer questions about his employment could result in his dismissal and the State did not seek a waiver of the employee's immunity from the use of his answers in any criminal action against him, the State did not violate the employee's Fifth Amendment right against self-incrimination by terminating him for refusing to answer questions without advising him that his answers could not be used against him in any criminal prosecution or that the questions would relate specifically and narrowly to the performance of official duties. Debnam v. N.C. Dept. of Correction, RULES OF CIVIL PROCEDURE 11 (NCI3d). Although a complaint filed prior to the amendment of Rule 11 on 1 January 1987 may not be the basis for sanctions under the legal sufficiency prong of Rule 11, "other papers" filed subsequent to the amendment may be the basis for sanctions if they are interposed for an improper purpose. Brooks v. Giesey, Discovery responses are not properly the subject of sanctions under Rule 11 since Rule 26(g) is the proper avenue for sanctioning improper conduct relating to discovery responses. Ibid. Assuming that affidavits filed by plaintiffs in opposition to defendants' motion for summary judgment are "other papers" within the meaning of Rule 11, the trial court's finding that the affidavits "contain conclusory and nonfactual statements" did not support the court's general conclusion that "other papers" were interposed for an improper purpose. Ibid. While a brief filed by plaintiffs in opposition to defendant's motion for summary judgment constituted a "paper" within the meaning of Rule 11, the trial court's findings were insufficient to support a conclusion that the brief constituted a paper interposed for an improper purpose. Ibid. STATE 4.2 (NCI3d). The doctrine of sovereign immunity barred the superior court from holding the N. C. Dept. of Transportation in contempt, and the superior court thus erred in issuing an order requiring the Dept. of Transportation to appear and show cause why it should not be held in contempt for failure to obey a prior order directing the reinstatement of an employee. N.C. Dept. of Transportation v. Davenport,