CONTENTS BY TYPE OF CASES FILED 4 JUNE 1993 APPEAL AND ERROR 504 (NCI4th). The trial court did not err in a first degree murder prosecution by failing to instruct on second degree murder where defendant foreclosed any inclination by the trial judge to give that instruction. State v. Williams, 719. ARSON AND OTHER BURNINGS 13 (NCI4th). The evidence was sufficient to support defendants' conviction of attempted first degree arson even though it failed to show that a murder victim found in the dwelling was alive at the time of the attempted burning. State v. Barnes, 666. 29 (NCI4th). The evidence was sufficient to support defendant's conviction of attempted first degree arson under the theory of acting in concert. State v. Barnes, 666. BURGLARY AND UNLAWFUL BREAKINGS 59 (NCI4TH). The evidence was sufficient to support defendant's conviction of first degree murder, first degree burglary and attempted first degree arson under the theory of acting in concert. State v. Barnes, 666. CONSPIRACY 33 (NCI4th). The evidence was sufficient to establish a criminal conspiracy on the part of defendant and his girlfriend to rob the victim. State v. Rannells, 644. CONSTITUTIONAL LAW 344 (NCI4th). Defendant's unwaivable right to be present at all stages of his capital trial was not violated by the trial court's excusal of jury pool members after private, unrecorded bench conferences before defendant's case had been called for trial. State v. Rannells, 644. 370 (NCI4th). Neither the North Carolina death penalty statute generally nor the aggravating circumstance that a murder was especially heinous, atrocious, or cruel was unconstitutional. State v. Jennings, 579. CRIMINAL LAW 105 (NCI4th). The results of blood grouping tests performed on samples taken from an automobile were not required to be excluded from evidence because all the blood taken from the automobile was consumed by the State's testing and none was left for testing by defendants. State v. Barnes, 666. 468 (NCI4th). The prosecutor's jury argument that the small amount of blood recovered from a car had nothing to with the accuracy of the tests performed on the blood samples but only limited the number of tests that could be performed merely rebutted a contention by defendant that the tests were inaccurate due to the limited amount of blood and was not improper. State v. Barnes, 666. There was no prejudicial error in a murder prosecution where the prosecutor implied in his closing argument that defendant could have pled not guilty by reason of insanity and the State would not have had to prove all the elements of the crime. State v. Beach, 733. 560 (NCI4th). There was no error in denying a motion for a mistrial in a murder prosecution where the out-of-court statement on which the motion was based was properly admitted. State v. Williams, 719. 720 (NCI4th). There was harmless error in a first degree murder prosecution in the omission from the jury charge of one of the five essential elements of first degree murder where the court promptly corrected the error. State v. Jennings, 579. 775 (NCI4th). There was harmless error in a prosecution for murder, burglary, and kidnapping where defendant requested that the court instruct on the defense of voluntary intoxication and the court limited its instruction to the murder charge. State v. Kyle, 687. 798 (NCI4th). The evidence in a murder prosecution supported an instruction on acting in concert where defendant's admission that, at the least, he knew that another man intended to shoot one of the victims and that he directed this other man to the location of the pistol is ample evidence of active encouragement and assistance to the perpetrator, as was his questioning of the other man's decision not to kill a witness. State v. Williams, 719. 823 (NCI4th). The trial court did not err in a murder prosecution by refusing to give an instruction on the credibility of law enforcement officers. State v. Williams, 719. 964 (NCI4th). Defendant's motion for appropriate relief must first be determined in the superior court where the motion was filed in the trial court after his notice of appeal was given but the jurisdiction of the trial court had not been divested under G.S. 15A-1448(a)(3). State v. Rannells, 644. 1100 (NCI4th). The trial court erred when sentencing defendant for kidnapping and burglary by finding as aggravating factors that defendant was armed with a deadly weapon and that he used a deadly weapon to commit the offenses. State v. Kyle, 687. 1102 (NCI4th). The evidence was sufficient to support the trial court's finding as a nonstatutory aggravating factor for attempted arson that such crime was committed to cover up a murder. State v. Barnes, 666. 1126 (NCI4th). The rule that a sentence for one offense may not be aggravated by defendant's acts which form the gravamen of contemporaneous convictions of joined offense was not violated by the trial court's finding as an aggravating factor for attempted arson that such crime was committed to cover up a first degree burglary and a first degree murder for which defendants were also convicted. State v. Barnes, 666. 1156 (NCI4th). The trial court did not err in finding as an aggravating factor for first degree burglary that defendant was armed with a deadly weapon where there was evidence that defendant or a person with whom he was acting in concert used a gun and a knife during the crime. State v. Barnes, 666. 1320 (NCI4th). The trial court did not err in the sentencing phase of a murder prosecution when it allowed consideration of evidence of the victim's good character introduced during the guilt phase or when it instructed the jury that it could consider all evidence heard at both the guilt and penalty phases. State v. Jennings, 579. 1323 (NCI4th). The trial court did not err in a murder prosecution in its instructions on how to proceed if the mitigating circumstances are of equal value and weight to the aggravating circumstances. State v. Jennings, 579. 1326 (NCI4th). The trial court did not err in a murder prosecution by instructing the jury that defendant had the burden of proving mitigating circumstances by a preponderance of the evidence. State v. Jennings, 579. 1333 (NCI4th). There was no error in a murder prosecution in the denial of defendant's motion for a bill of particulars disclosing the statutory aggravating circumstances relied upon in seeking the death penalty. State v. Jennings, 579. 1339 (NCI4th). There was no plain error in a murder prosecution where the court submitted the aggravating circumstance that the murder was committed while defendant was engaged in the commission of or while attempting to penetrate the anus with an object. State v. Jennings, 579. The trial court did not err in a murder prosecution by submitting the aggravating circumstance that the murder was committed during a sex offense and that it was especially heinous, atrocious, or cruel where there was substantial evidence of the especially heinous, atrocious, or cruel nature of the killing apart from the evidence as to whether the murder was committed during the sex offense. Ibid. 1341 (NCI4th). The trial court did not err in a prosecution for the murder of a husband by a wife by instructing the jury on the aggravating circumstance of pecuniary gain even though defendant contended that the language "stood to benefit" applies to the surviving spouse of virtually every marriage. State v. Jennings, 579. 1344 (NCI4th). The trial court did not err in a murder prosecution by submitting the aggravating circumstance that the murder was especially heinous, atrocious, or cruel where defendant was convicted on the basis of torture and premeditation and deliberation. State v. Jennings, 579. 1345 (NCI4th). The trial court did not err in a murder prosecution by submitting the aggravating circumstance that the murder was especially heinous, atrocious, or cruel and that it was committed during a sex offense where there was substantial evidence of the especially heinous, atrocious, or cruel nature of the killing apart from the evidence as to whether the killing was committed during the sex offense. State v. Jennings, 579. 1348 (NCI4th). The trial court did not err in a first degree murder prosecution by denying defendant's request that it instruct the jury that "you are entitled to base your verdict upon any sympathy or mercy you may have for the defendant that arises from the evidence presented in this case. State v. Jennings, 579. 1373 (NCI4th). A sentence of death in a murder prosecution was not disproportionate or excessive. State v. Jennings, 579. DEATH 23 (NCI4th). Where a mother's allegedly negligent operation of an automobile caused her son's death and the mother was the son's sole heir, the mother's purported renunciation of her right to inherit from her son in favor of the son's two sisters did not permit a wrongful death recovery against the mother in favor of the sisters. Evans v. Diaz, 774. EVIDENCE AND WITNESSES 90 (NCI4th). The trial court did not err in a murder prosecution by permitting the jury to hear an audio tape recording of defendant's telephone conversation with the sheriff and to read transcripts of that recorded conversation where the evidence was probative of defendants mental state and, although it prejudiced defendant, was not unduly prejudicial. Evidence is unfairly prejudicial only if it unduly tends to suggest a decision on an improper basis. State v. Daniel, 756. 264 (NCI4th). There was no error in a murder prosecution in the admission of testimony about the victim's good character which was admitted to rebut prior evidence elicited by defendant upon cross-examination that the victim suffered from dementia and that he displayed behavior characteristic of dementia. State v. Jennings, 579. 294 (NCI4th). Testimony in a murder and robbery case by Virginia police officers involved in defendant's apprehension that defendant was charged with driving while impaired and that defendant refused a breathalyzer test tended to show the circumstances under which defendant's confession was made and was admissible on the issues of the voluntariness and credibility of the confession. State v. Rannells, 644. Evidence of defendants theft of the car in which he was riding and beating of his girlfriend for leaving her purse in a murder and robbery victim's truck was admissible to show defendant's consciousness of guilt. Ibid. 339 (NCI4th). There was no error in a murder prosecution in the admission of evidence of a prior assault on the victim by defendant where defendant had not conceded his guilt of second degree murder at the time the evidence was offered. State v. Kyle, 687. 368 (NCI4th). Evidence of defendant's theft of the murder weapon was admissible to prove not only that he possessed it but the circumstances under which he acquired it. State v. Rannells, 644. 403 (NCI4th). A witness had the opportunity, attention and certainty required at the time of her initial viewing of defendants near the crime scene to support her in-court identification of one defendant. State v. Barnes, 666. 632 (NCI4th). The trial court did not err in the denial of defendant's motion for a hearing on a witness's in-court identification of defendant where the motion was made after the witness had identified defendant before the jury. State v. Barnes, 666. 672 (NCI4th). Defendant waived any benefit of a prior objection to testimony of a prior assault by defendant upon a murder victim by not objecting to an account of the same incident by a defense witness upon cross-examination. State v. Kyle, 687. 736 (NCI4th). There was no prejudicial error in admitting testimony that the magistrate, when issuing a search warrant, asked if the officer wanted a warrant for murder. State v. Jennings, 579. 781 (NCI4th). There was no prejudicial error in a murder prosecution in the admission of testimony about the victim's good character where similar evidence was admitted without objection. State v. Jennings, 579. 788 (NCI4th). There was no prejudice in a murder prosecution in allowing a paramedic to testify that deceased had been in cardiac arrest for more than 15 minutes when he arrived in light of similar, more damning testimony given by the county medical examiner and the pathologist who performed the autopsy. State v. Jennings, 579. 1081 (NCI4th). The trial court did not err in a murder prosecution by admitting into evidence testimony that a statement had been made out of court in defendant's presence that defendant had participated in the shooting and defendant did not respond until some minutes later. State v. Williams, 719. Any error in a murder prosecution in the admission of testimony from an officer that defendant had exercised her right to remain silent was invited by defendant. State v. Jennings, 579. Testimony in a murder prosecution that defendant refused to allow a search of her hotel room and car was harmless error where there was other testimony that defendant was not trying to hide anything, defendant did not unequivocally refuse the search, and the challenged testimony was but a tiny fraction of the case. Ibid. 1694 (NCI4th). A photograph showing the location of a murder victim's body when found and an autopsy photograph depicting a five-inch wound to the victim's neck were properly admitted to prove premedication and deliberation even though defendant did not contest the identity or cause of death of the victim. State v. Barnes, 666. 2068 (NCI4th). The trial court did not err in a murder prosecution by allowing the victim's financial advisor to testify about the emotions displayed by defendant toward her husband and her husband's responses, as manifested by a change in his physical aspect, where the testimony was rationally based on the witness's perceptions and was helpful to a clear understanding of his testimony or a fact in issue. State v. Jennings, 579. 2209 (NCI4th). Defendant waived any right he may have had to a voir dire hearing to establish the reliability of blood grouping procedures used by a forensic serologist where the serologist had been accepted by defendant as an expert and had already testified without objection about the experiments she had conducted to determine blood types when defendant objected to her testimony. State v. Barnes, 666. The inability of a serologist to perform additional testing due to the limited amounts of blood samples went to the weight and not the admissibility of her testimony as to the results of blood grouping tests. Ibid. 2264 (NCI4th). The trial court did not err in a first degree murder prosecution by admitting the opinion of the forensic pathologist who performed the autopsy that the victim had been tortured where the witness gave his expert medical opinion about the pattern and types of injuries he observed during the autopsy and did not testify that defendant tortured the victim. State v. Jennings, 579. The trial court did not err in a murder prosecution by allowing the forensic pathologist who performed the autopsy to testify that there had been a sexual assault upon the victim where the challenged testimony relates to a pattern of injuries about which the pathologist had testified and constitutes a medical conclusion which he was fully qualified to render. Ibid 2299 (NCI4th). There was no prejudicial error in a murder prosecution where the court sustained an objection to a defense attorney asking the State's psychiatrist on cross-examination whether defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. State v. Beach, 733. 2302 (NCI4th). There was prejudicial error in a prosecution for murder and assault with a deadly weapon with intent to kill inflicting serious injury in the exclusion of testimony that defendant suffered from chronic and acute alcohol dependence, that his ability to think, plan, or reflect was impaired, and that he was unable to form the specific intent to kill at the time of the shootings. State v. Daniel, 756. 2633 (NCI4th). There was no error in a murder prosecution where the prosecutor was allowed to question both the defendant and a judge, who had known the victim for thirty years, about how close doctors performing an autopsy could come to determining how long a person had been dead. State v. Jennings, 579. 2786 (NCI4th). The trial court did not err in a murder prosecution by allowing the prosecutor to ask a pathologist whether three wounds on the victim's body could have been caused by a sharp object such as a hypodermic needle being moved around and rotated where there had been testimony that a hypodermic needle was found inside defendant's cosmetic bag. State v. Jennings, 579. 2797 (NCI4th). There was no error in a murder prosecution where defendant contended that the prosecutor continually interrupted her during cross-examination and attempted to humiliate her by asking impertinent and insulting questions but the record does not disclose that the prosecutor asked the questions in bad faith. State v. Jennings, 579. 3106 (NCI4th). The trial court did not err in a murder prosecution by allowing an emergency room nurse, a medical examiner, and a police detective to testify about statements made to them by prior witnesses where the testimony tended to strengthen and add weight to the original witness. State v. Jennings, 579. 3174 (NCI4th). The trial court did not err in allowing an officer to testify that statements made by a witness prior to trial were consistent with her trial testimony where the purpose of the officer's testimony was to show why the State had made a plea bargain with the witness. State v. Barnes, 666. HOMICIDE 232 (NCI4th). The State's evidence, including testimony by an eyewitness placing defendant near the murder scene, was sufficient to support defendant's conviction of first degree murder under the theory of acting in concert. State v. Barnes, 666. 256 (NCI4th). The State's evidence was sufficient to support defendant's conviction of first degree murder on the theory of premeditation and deliberation, although defendant stated in his confession offered into evidence by the State that he shot the victim in a fit of anger because the victim fondled defendant's girlfriend, where the State presented further evidence tending to show that the killing was not suddenly provoked but was carefully planned and executed. State v. Rannells, 644. 258 (NCI4th). The trial court did not err in a murder prosecution by not giving the instruction on intentional use of a deadly weapon as requested by defendant where the substance of the requested instruction was given more clearly by the trial court. State v. Williams, 719. 480 (NCI4th). The trial court did not err in a murder prosecution by giving a deadly weapon instruction to the jury where the evidence was that defendant had kicked or stomped the victim in the abdomen while wearing cowboy boots. State v. Jennings, 579. 488 (NCI4th). The trial court in a first degree murder prosecution did not err in refusing to give defendant's requested instruction that "the intent to kill cannot occur simultaneously with the killing" where the court's charge distinguished an intent to kill formed under the influence of some suddenly aroused violent passion from the intent to kill formed after premeditation and deliberation and thus conformed in substance with that requested by defendant. State v. Rannells, 644. 489 (NCI4th). There was sufficient evidence of lack of provocation in a first degree murder case to support the trial court's instruction that evidence of lack of provocation by the decedent could be considered in determining whether there was premeditation and deliberation by defendants. State v. Barnes, 666. 552 (NCI4th). The trial court in a first degree murder case did not err in failing to instruct the jury on second degree murder as to one defendant where the evidence showed that each of the defendants either did all the acts necessary to be guilty of first degree murder or acted in concert or as an aider and abettor in doing such acts. State v. Barnes, 666. 557 (NCI4th). The trial court did not err in a murder prosecution by instructing jurors that premeditation, deliberation, and intent to kill are not essential elements of first degree murder on the basis of torture. State v. Jennings, 579. 727 (NCI4th). There the jury specified in its verdict that it found defendant guilty of first degree murder on theories of both felony murder and premeditation and deliberation, and the jury also found defendant guilty of the underlying felony of armed robbery, the merger rule did not apply and it was proper for the court to sentence defendant on both the murder conviction and the armed robbery conviction. State v. Rannells, 644. INDIGENT PERSONS 27 (NCI4th). The trial court did not err in the denial of defendant's motion for funds to hire a private investigator in a first degree murder case where defendant's evidence constituted a mere hope or suspicion that favorable evidence was available. State v. Barnes, 666. JUDGES, JUSTICES, AND MAGISTRATES 36 (NCI4th). A district court judge is censured by the Supreme Court for conduct prejudicial to the administration of justice that brings the judicial office into disrepute for barring an attorney from sessions of juvenile court over which she would be presiding because he had initiated an investigation by the Judicial Standards Commission of allegations that the judge had engaged in improper ex parte communications with potential witnesses in pending juvenile cases. In re Bissell, 766. 43 (NCI4th). A written minority opinion filed with the Judicial Standards Commission by one or more of its members is not confidential and should be filed in the Supreme Court with the Commission's recommendation. In re Bissell, 766. JURY 42 (NCI4th). The trial court did not abuse its discretion by denying a motion for a venire from another county on the grounds of pretrial publicity and that the county was racially unbalanced. State v. Kyle, 687. 79 (NCI4th). Defendant was not denied an impartial jury when the trial court excused a prospective juror but required him to sit on the front row as a spectator during the trial after the juror expressed reservations about jury duty because of his concern that the trial might interfere with his plans to begin school at the end of the month even though he was assured that the trial would not take that long. State v. Rannells, 644. 140 (NCI4th). There was no prejudice in a prosecution for murder, kidnapping, and burglary in sustaining the prosecutor's objections to questions concerning the death penalty and drinking where defendant did not receive the death penalty. State v. Kyle, 687. 150 (NCI4th). Any error by the trial court's refusal to permit the defendant in a capital trial to attempt to rehabilitate a juror who was excused for cause because of his views on capital punishment after having given ambiguous responses to voir dire questioning about the death penalty was harmless because defendant received a life sentence. State v. Rannells, 644. 201 (NCI4th). The trial court in a first degree murder prosecution erred in the denial of defendant's challenge for cause to a juror whose voir dire colloquy demonstrated confusion about, or a fundamental misunderstanding of, the principles of the presumption of innocence or a simple reluctance to apply those principles should the defense fail to present evidence of defendant's innocence. State v. Cunningham, 744. 223 (NCI4th). The improper excusal of a juror in violation of the principles of Witherspoon v. Illinois and Wainwright v. Witt affects only the sentencing proceeding and not the determination of defendant's guilt. State v. Rannells, 644. 227 (NCI4th). The trial court did not err by excusing a prospective juror for cause in a murder prosecution where the prospective juror initially indicated that she could vote for the death penalty but, upon further questioning, felt that she would be trying to find ways to vote against the death penalty and would be predisposed or biased in some respect. State v. Jennings, 579. 257 (NCI4th). There was no error in the prosecution of a white defendant for killing two white victims in the prosecutor's use of peremptory challenges to excuse black veniremen. State v. Beach, 733. KIDNAPPING AND FELONIOUS RESTRAINT 20 (NCI4th). The trial court did not err by not dismissing a kidnapping charge where the indictment charged that defendant confined, restrained, and removed the victim for the purpose of facilitating murder, burglary and defendant's subsequent flight and the evidence showed that restraining the victim and her son by backing them against a wall and standing between them and the door made it easier to carry out the intent of the burglary, and defendant removed the victim for the purpose of killing her in that he dragged her from the apartment after shooting her and while she was still living and subsequently shot her, disposing of the body in a ditch. State v. Kyle, 687. 26 (NCI4th). The trial court did not err in a prosecution for kidnapping by denying defendant's request to instruct the jury on the lesser included offense of false imprisonment. State v. Kyle, 687. ROBBERY 4.3 (NCI3d). The evidence was sufficient to support defendant's conviction of armed robbery of a murder victim although defendant's confession contained no mention of the robbery. State v. Rannells, 644. SEARCHES AND SEIZURES 21 (NCI3d). Defendants did not show that an affidavit filed to support the issuance of a search warrant contained deliberate falsehoods or exhibited a reckless disregard for the truth concerning information from an informant or that the affiant was not acting in good faith so as to require suppression of the evidence seized pursuant to the warrant. State v. Barnes, 666. WILLS 35.1 (NCI3d). Where testator's will devised all of his lands "in equal portions" to two nephews "for and during the terms of natural lives," provided that "upon their deaths I give and devise their respective shares thereof in fee simple to their respective issue, who survive them, per stirpes," and further provided that if either nephew "shall die without issue surviving him the share of such deceased shall go to the other of my said two nephews for life and then to his issue in fee simple, per stirpes," the testator intended the contingent remainders to the surviving issue to vest upon the death of each of the life tenants rather than only upon the death of both life tenants. Hollowell v. Hollowell, 706. 35.2 (NCI3d). The doctrine of implied cross remainders was inapplicable where the testator intended to devise his property so that as each life tenant died leaving issue the contingent remainder would vest in the surviving issue of that life tenant. Hollowell v. Hollowell, 706. 53 (NCI3d). Testator's use of the phrase "equal portions" evidenced an intent to create a tenancy in common in life tenants rather than a joint tenancy, and use of "respective shares" and "respective issue" emphasized testator's intent that the vesting of future interests should occur at the death of each life tenant rather than upon the death of both tenants. Hollowell v. Hollowell, 706.