CONTENTS FOR CASES FILED 5 NOVEMBER 1993 BURGLARY AND UNLAWFUL BREAKINGS 151 (NCI4th). There was no plain error where the burglary indictment charged that defendant broke and entered with the intent to commit the felony of first-degree murder, defendant argues that the court erroneously instructed that the State would have met its burden of proving the element of intent as to burglary if felony murder were proven by the State, and the jurors found defendant guilty of premeditated and deliberated murder. State v. Gibbs, 165 (NCI4th). The trial court did not err by refusing to instruct on misdemeanor breaking or entering as a lesser offense to first-degree burglary where there was no evidence from which a rational trier of fact could have concluded defendant did not possess the intent to commit murder. State v. Gibbs, CONSPIRACY 14 (NCI4th). There was no plain error in the court's instructions on conspiracy to commit first-degree murder and first-degree burglary where the court told the jury that defendant had to have agreed with at least one other person to commit each crime instead of the person named in the indictment. State v. Gibbs, 38 (NCI4th). The trial court did not err by failing to dismiss a charge of conspiracy to commit burglary where defendant was also charged with conspiracy to commit first-degree murder and defendant contended that the evidence showed one agreement to commit multiple offenses, but the evidence, taken in the light most favorable to the State, showed a separate agreement to commit burglary. State v. Gibbs, 39 (NCI4th). There was no prejudice where defendant contended that the trial court erroneously instructed the jury that it could convict him of conspiracy to commit murder if they found an agreement to commit felony murder, but the jurors eliminated the possibility that an unintentional felony murder formed the basis for the specific intent underlying the conspiracy of which they convicted defendant when they found an agreement to kill. State v. Gibbs, 43 (NCI4th). There was no plain error where the trial court, when instructing on conspiracy to commit first-degree burglary, twice referred to conspiracy to commit first-degree murder, with which defendant was also charged, but acknowledged the error and gave a correct instruction. State v. Gibbs, CONSTITUTIONAL LAW 166 (NCI4th). Depriving defendant of the defense of the "year and a day rule" based on the prospective abrogation of that rule by State v. Vance, 328 N.C. 613, violates the prohibition against ex post facto laws where the murderous acts occurred prior to the abrogation and the victim's death occurred after the abrogation but more than a year and a day after the murderous acts. State v. Robinson, 262 (NCI4th). The trial court did not abridge a first-degree murder defendant's Sixth Amendment right to counsel by denying defendant's motion to suppress where the right did not attach until after the statements were made. State v. Gibbs, 342 (NCI4th). While the trial court's reference to "something you told me earlier" in its remarks to a juror in a noncapital trial indicates that an ex parte conversation between the court and the juror did occur, this conversation could not have influenced the verdict and was not prejudicial to defendant where the record establishes that the substance of the conversation related to the juror's having "overheard something about the case," and the court removed the juror prior to deliberations. State v. Harrington, CRIMINAL LAW 353 (NCI4th). The trial court did not err in a first-degree murder prosecution where a prospective juror indicated that he had seen defendant in handcuffs and that this caused him to believe that defendant was guilty, the juror was excused, and the court did not give any remedial, curative, or cautionary instruction to the other prospective jurors. State v. Gibbs, 412 (NCI4th). The trial court did not abuse its discretion in a first-degree murder prosecution by permitting the prosecutor in his opening statement to imply twice that the jurors could not be fair to both the defendant and the State. State v. Gibbs, 438 (NCI4th). A prosecutor's argument in a first-degree murder sentencing proceeding was not so grossly improper as to require intervention by the court where, in response to the nonstatutory mitigating circumstance that defendant had shown the ability to conform and adapt to the prison environment, the prosecutor told the jurors, "You watched them bring him in, bring him out. He's been under guard." State v. Gibbs, 454 (NCI4th). There was no gross impropriety in a first-degree murder sentencing proceeding where the prosecutor quoted from the Sixth Commandment. State v. Gibbs, 455 (NCI4th). There was no gross impropriety in a first-degree murder sentencing proceeding from the prosecutor's argument that the jurors should recommend death because "[i]t's the only way that you can be assured that he won't do it again." State v. Gibbs, 465 (NCI4th). There was no prejudicial error in a sentencing proceeding for first-degree murder where two of the mitigating circumstances were that the capital felony was committed while defendant was under the influence of mental or emotional disturbance and that defendant had an I.Q. of 61, and the prosecutor argued that low mentality is not a defense to a criminal charge, that evidence of low mentality is irrelevant, and that the test of accountability is whether a defendant has the ability to distinguish right from wrong. State v. Gibbs, There was no prejudice in a first-degree murder sentencing proceeding where the judge remained silent after the prosecutor asked, "You don't think that's the law? Ask the Judge. He'll tell you," after defendant objected to the prosecutor's argument that the test of accountability does not depend on intelligence or general mental capacity. Ibid. 468 (NCI4th). There was no prejudice in a first-degree murder sentencing proceeding where the prosecutor's argument linked defendant and an codefendant; the capital sentencing statute does not provide for an aggravating circumstance based on a defendant associating others in the capital felony, but this does not mean that no mention may be made of a codefendant actively involved at the scene of the crime. State v. Gibbs, There was no gross impropriety in a first-degree murder sentencing proceeding where the prosecutor argued that the jurors had found the existence of the aggravating circumstance that the murder was committed during a burglary by finding defendant guilty of first-degree burglary. Ibid. There was no gross impropriety in a first-degree murder sentencing proceeding where defendant contended that the prosecutor misstated the law by arguing that evidence of premeditation and deliberation also constituted evidence that the murders were especially heinous, atrocious, or cruel, but the prosecutor did not mention premeditation and deliberation and the thrust of the argument was that the cold calculation with which defendant executed the victims tended to prove defendant's cruelty and depravity of mind and his intention that the victims be subjected to mental suffering. Ibid. 481 (NCI4th). The trial court did not err in failing to conduct a hearing to question a juror whom the courtroom clerk overheard tell two other jurors he did not believe a defense witness and then in replacing the juror prior to deliberations without prior consultation with defendant. State v. Harrington, 540 (NCI4th). The trial court did not err in replacing a juror prior to deliberations without consulting defendant when the juror informed the court that he had "overheard something about the case." State v. Harrington, 738 (NCI4th). The trial court did not express an opinion on the weight of the evidence by its statement that "it is unusual for us to hear so much evidence on one side" where the court was admonishing the jurors pursuant to G.S. 15A-1236(a)(3) that it was their duty to hear evidence from both sides and to discuss the case among themselves before reaching a conclusion. State v. Harrington, 832 (NCI4th). There was no plain error in a first degree murder prosecution where the prosecutor asked several questions related to accomplice testimony during jury selection, the court gave an erroneous instruction which equated the interest of an accomplice with that of any other witness, and the court subsequently twice gave the correct instruction. State v. Gibbs, 865 (NCI4th). The trial court did not invade the province of the jury or violate the jurors' free speech rights by instructing the jury that "it is important that you not go to the jury room and immediately take a vote or immediately stake yourself out on a strong position." State v. Harrington, 1090 (NCI4th). The trial court did not err when sentencing defendant for first-degree burglary, conspiracy to commit burglary, and conspiracy to commit murder by finding in aggravation that defendant induced others to participate in the commission of the offense and occupied a position of leadership or dominance of other participants where there was separate evidence to support each factor. State v. Gibbs, 1327 (NCI4th). The trial court did not err by instructing the jurors in the penalty phase of a first-degree murder prosecution that they were to consider whether to recommend death if they found the aggravating and mitigating circumstances in equipoise. State v. Gibbs, 1334 (NCI4th). The trial court did not err in a first-degree murder sentencing proceeding by denying defendant's motion for disclosure of aggravating and mitigating circumstances. State v. Gibbs, 1339 (NCI4th). The trial court did not err when sentencing defendant for first-degree murder by submitting as aggravating circumstances for each murder both that the murder was committed during the course of a felony (burglary), and that it was part of a course of conduct which involved commission of other crimes of violence against other persons. State v. Gibbs, 1343 (NCI4th). The aggravating circumstance that a killing was especially heinous, atrocious, or cruel is not impermissibly vague on its face or as applied. State v. Gibbs, 1344 (NCI4th). The evidence was sufficient in a first-degree murder sentencing proceeding to support submitting to the jury the aggravating circumstance that the killing of Shamika Farris was especially heinous, atrocious, or cruel. State v. Gibbs, 1355 (NCI4th). The trial court did not err at a sentencing proceeding for first-degree murder by not submitting the mitigating circumstance of no significant history or prior criminal activity where the record shows that defense counsel stated that no evidence of defendant's criminal history was presented by the defense or the State and the defense had chosen not to request submission of the circumstance. State v. Gibbs, 1362 (NCI4th). Defendant could not have been prejudiced when being sentenced for first-degree murder by the court's instruction on the age of defendant at the time of the crime because the jurors found that this mitigating circumstance existed. State v. Gibbs, 1373 (NCI4th). Three sentences of death were not excessive or disproportionate. State v. Gibbs, 1457 (NCI4th). Where the trial court announced at the time defendant entered a plea of guilty to DWI that prayer for judgment would be continued for thirty days without conditions, the trial court did not lose jurisdiction to impose a sentence after that thirty-day period had passed. State v. Absher, DIVORCE AND SEPARATION 288 (NCI4th). A trial court has the discretion to modify an alimony award for changed circumstances as of the date the motion to modify was filed, and it follows that the trial court's order increasing plaintiff's alimony award effective from the date the motion to modify was first noticed for hearing was not a retroactive modification of alimony. Hill v. Hill, ENVIRONMENTAL PROTECTION, REGULATION, AND CONSERVATION 117 (NCI4th). The Low-Level Radioactive Waste Management Authority may not be preliminarily enjoined in its process of site selection for a low-level radioactive waste disposal facility until the permitting process has been completed and the final site selection has been made. Richmond Co. v. N.C. Low-Level Radioactive Waste Mgmt. Auth., EVIDENCE AND WITNESSES 1232 (NCI4th). The trial court did not err in a first-degree murder prosecution by denying defendant's motion to suppress confessions on the ground that the confessions were admitted in violation of defendant's Fifth Amendment right to counsel where, based on the entire context in which defendant's inquiry was made, he did not invoke the right to counsel. State v. Gibbs, 1252 (NCI4th). Defendant did not invoke her right to counsel when, in response to warnings as to her Miranda and juvenile rights, she asked the interrogating officer whether she needed a lawyer since this inquiry constituted an ambiguous or equivocal invocation of her right to counsel which was clarified by responses to the narrow questions thereafter posed by the officer, and those responses made it clear that defendant was not asking for the assistance of counsel. State v. Barber, HOMICIDE 5 (NCI4th). Depriving defendant of the defense of the "year and a day rule" based on the prospective abrogation of that rule by State v. Vance, 328 N.C. 613, violates the prohibition against ex post facto laws where the murderous acts occurred prior to the abrogation and the victim's death occurred after the abrogation but more than a year and a day after the murderous acts. State v. Robinson, 724 (NCI4th). The trial court did not err in a first-degree murder sentencing proceeding by refusing to arrest judgment on defendant's conviction of first-degree burglary. State v. Gibbs, INSURANCE 99 (NCI4th). Even though the last act to make a binding contract of excess liability insurance (the delivery of the policy) occurred in California, the contract is deemed to have been made in North Carolina under G.S. 58-3-1, and the law of North Carolina thus governs in interpreting the policy, where North Carolina has close connections with the interests insured by the policy because most of the insured's vehicles were titled in this state and the insured's transportation division is located in this state. Collins & Aikman Corp. v. Hartford Accident & Indemnity Co., 895 (NCI4th). An umbrella excess liability insurance policy provided coverage for punitive damages awarded in a wrongful death action where the policy insured for loss "because of bodily injury" since punitive damages were recovered because of the recovery for bodily injuries to the decedents. Collins & Aikman Corp. v. Hartford Accident & Indemnity Co., Punitive damages do not constitute "fines or penalties" excluded from coverage under an excess liability insurance policy. Ibid. JUDGES, JUSTICES, AND MAGISTRATES 36 (NCI4th). A district court judge is censured for conduct prejudicial to the administration of justice for comments which could reasonably be interpreted as threats of professional reprisal against members of the district attorney's office and an attorney practicing in the district court for what the judge perceived to be disloyalty to and a betrayal of him in his divorce case. In re Hair, JURY 102 (NCI4th). The trial court did not err during jury selection in a first degree murder prosecution by failing to give a cautionary instruction to the remaining venire after a prospective juror with an opinion on guilt or innocence was excused. State v. Gibbs, The trial court did not err during jury selection in a first-degree murder prosecution by excusing a prospective juror for cause on its own motion where the juror stated that she had formed an opinion about the case and defendant contended that the court failed to exercise its discretion by failing to determine whether the juror could lay aside her opinion and render a verdict based on the evidence. Ibid. 118 (NCI4th). Defendant did not show either an abuse of discretion or prejudice arising therefrom in a first-degree murder prosecution where defendant contended that the court erred during jury selection by twice overruling his objection to the prosecutor's implication that the jurors could not be fair to their country and state and also be fair to the defendant. State v. Gibbs, 147 (NCI4th). There was no gross impropriety during jury selection in a first-degree murder prosecution where defendant argues that language prefacing some of the prosecutor's questions constituted a comment that there was a good possibility the defendant would be found guilty. State v. Gibbs, 217 (NCI4th). The trial court did not err during jury selection in a first-degree murder prosecution by excusing for cause a Pentecostal minister whose bias against the death penalty was shown with unmistakable clarity. State v. Gibbs, 226 (NCI4th). The trial court did not err during jury selection for a first-degree murder trial by denying defendant the opportunity to rehabilitate two prospective jurors excused for cause based on their answers to death qualification questions. State v. Gibbs, 227 (NCI4th). The trial court did not err during jury selection in a first-degree murder prosecution by excusing for cause a prospective juror whose responses indicated that she opposed the death penalty and that her view would interfere with the performance of her duties as a juror in the sentencing phase. State v. Gibbs, The trial court did not err during jury selection in a first-degree murder prosecution by granting the State's motion to excuse a juror for cause due to her views on capital punishment where some of her answers were equivocal, but her views on capital punishment would have substantially impaired her ability to perform her duties as a juror. Ibid. RAILROADS 13 (NCI4th). Where the right-of-way for a public road was entirely within an abandoned railroad easement, the railroad easement did not "adjoin" the public road right-of-way within the meaning of the second sentence of G.S. 1-44.2(a) so that the statute does not apply to vest title to a strip of land between the center of the railroad tracks and the edge of the public road right-of-way in defendant church as adjacent property owner. Nelson v. Battle Forest Friends Meeting,