CONTENTS 6 OCTOBER 1994 APPEAL AND ERROR 139 (NCI4th). The trial court's interlocutory order granting plaintiff's motion for judgment notwithstanding the verdict on the issue of decedent's contributory negligence and ordering a new trial on the issue of damages affected a substantial right of the defendants and was immediately appealable. Bowden v. Latta, ASSAULT AND BATTERY 16 (NCI4th). An indictment alleging that defendant assaulted the victim "with his fists, a deadly weapon, by hitting [the victim] over the body with his fists and slamming his head against the cell bars and floor" and that this assault resulted in the victim's broken neck and paralysis was sufficient to allege that the cell bars and floor were deadly weapons. State v. Brinson, CRIMINAL LAW 433 (NCI4th). There was no plain error in a first-degree murder sentencing hearing where the prosecutor referred to defendant as a predator. State v. Reeves, 454 (NCI4th). There was no plain error in a first-degree murder prosecution from the prosecutor's argument that defendant had written his own death warrant when he brutalized and killed the victim. State v. Reeves, 458 NCI4th). Since defendant would have been eligible for parole had he been sentenced to life imprisonment in North Carolina and that life sentence made to commence at the expiration of a life sentence defendant had received in Virginia, the decision of Simmons v. South Carolina was inapplicable even though the State did argue defendant's future dangerousness as a reason for imposing the death penalty, and the trial court did not err under Simmons by refusing to permit defense counsel to argue to the jury anything about parole. State v. Price, 461 (NCI4th). There was no plain error in a first-degree murder sentencing hearing where the prosecutor argued that the victim's daughter, who was two-and-one-half years old and present in the home when the killing occurred, would probably begin to remember more of the events. State v. Reeves, There was no plain error in a first-degree murder sentencing hearing in the prosecutor's argument concerning balancing aggravating and mitigating factors where defendant contended that it was error for the prosecutor to argue that the jury could consider other factors than the aggravating and mitigating circumstances found in determining whether the aggravator outweighed the mitigating circumstances. Ibid. 463 (NCI4th). There was no error in a first-degree murder sentencing hearing where the prosecutor argued that defendant's sexual disorder had not come up until he was in his twenties when he was caught in Virginia for abducting a park worker where there was testimony that defendant's disorder was first revealed in a forensic evaluation when he was arrested in Virginia. State v. Reeves, 468 (NCI4th). There was no plain error in a first-degree murder sentencing hearing where defendant contended that it was error for the prosecutor to argue prior rape and kidnapping convictions as reasons for imposing the death penalty when the court had ruled that these were not to be considered as substantive evidence but only as factors on which a medical expert based his opinion. State v. Reeves, There was no plain error in a first-degree murder sentencing hearing where the prosecutor argued that defendant, if sentenced to life, would lead a comfortable life in prison. Ibid. 478 (NCI4th). There was no prejudicial error in a first-degree murder sentencing hearing where the foreperson returned to the courtroom late in the day after deliberations had begun and indicated that the jury would like to deliberate at least another hour and, when the judge indicated that dinner could be brought in, requested drinks and something light. State v. Reeves, 648 (NCI4th). Defendant's assignment of error to the denial of his motion to dismiss at the conclusion of the State's evidence was waived by defendant's presentation of evidence. State v. Gray, 1056 (NCI4th). There was no error in a first-degree murder sentencing hearing where defendant was allowed to address the jury, but the court moved the podium from before the jury box, where the attorneys made their arguments, to a place in front of the defendant's table. State v. Reeves, 1067 (NCI4th). There was no error in a first-degree murder sentencing hearing where a witness testified that the victim was a good wife and mother, a good person who always went to church and would do anything for anyone, and who died not knowing what happened to her two-and-a-half-year-old child. State v. Reeves, 1098 (NCI4th). The trial court did not improperly aggravate defendant's sentence for assault with a deadly weapon inflicting serious injury with evidence necessary to prove the serious injury element of the crime by finding as a nonstatutory aggravating factor that the victim sustained "extremely severe and permanent" injuries where evidence that the victim sustained a broken neck was sufficient to establish the serious injury element of the crime and the court's finding that the victim suffered "extremely severe and permanent" injuries was based solely on evidence of the victim's paralysis. State v. Brinson, 1120 (NCI4th). The trial court did not improperly aggravate defendant's sentence for assault with a deadly weapon inflicting serious injury with evidence necessary to prove the serious injury element of the crime by finding as a nonstatutory aggravating factor that the victim sustained "extremely severe and permanent" injuries where evidence that the victim sustained a broken neck was sufficient to establish the serious injury element of the crime and the court's finding that the victim suffered "extremely severe and permanent" injuries was based solely on evidence of the victim's paralysis. State v. Brinson, 1323 (NCI4th). The trial court did not err in a first-degree murder sentencing hearing by instructing the jury that they could refuse to find any nonstatutory mitigating circumstance which they found did not have mitigating value. State v. Reeves, 1328 (NCI4th). There was no violation of the Eighth Amendment in a first-degree murder sentencing hearing where the jury failed to find five nonstatutory mitigating circumstances. State v. Reeves, The Supreme Court did not find error in a first-degree murder sentencing hearing where defendant contended that the verdict was imposed under the influence of passion, prejudice, and arbitrary factors because the jury failed to find any mitigating circumstances. Ibid. 1337 (NCI4th). The trial court did not err in a first-degree murder sentencing hearing by charging the jury that they could find the aggravating circumstance of a prior felony involving violence if they found that defendant had been convicted of second-degree rape and assault with a deadly weapon inflicting serious injury. State v. Reeves, 1338 (NCI4th). There was no plain error in a first-degree murder sentencing hearing where defendant contended that the prosecutor travelled outside the record to argue that the killing was done to eliminate a witness, but the prosecutor did not explicitly refer to witness elimination in the language of the aggravating circumstance. State v. Reeves, 1357 (NCI4th). There was no error in a first-degree murder sentencing hearing where the jury did not find the aggravating circumstance that the murder was committed under the influence of mental or emotional disturbance but the evidence was not uncontradicted. State v. Reeves, The trial court did not err in a first-degree murder sentencing hearing in its instructions on mental or emotional disturbance where defendant contended that the court limited the jury's consideration of disturbances but the court instructed the jury that they could consider "any other mental or emotional disturbance or personality disorder." Ibid. 1360 (NCI4th). There was no error in a first-degree murder sentencing hearing where the jury did not find the aggravating circumstance of impaired capacity but the evidence was not uncontradicted. State v. Reeves, The trial court did not err in a first-degree murder sentencing hearing in its instructions on impaired capacity where defendant contended that the court limited the jury's consideration of sources of impairment but the court instructed the jury that they could consider "any other mental or emotional disturbance or personality disorder." Ibid. 1363 (NCI4th). The trial court did not err under Simmons v. South Carolina by refusing to submit to the jury in a capital sentencing proceeding defendant's Virginia life sentence as a nonstatutory mitigating circumstance. State v. Price, The trial court did not err in a first-degree murder sentencing hearing by excluding from the evidence a certified copy of defendant's Virginia convictions and sentences and precluding his arguing that they were mitigating evidence. State v. Reeves, 1373 (NCI4th). A sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor, the record supports the finding of the aggravating circumstance on which the death penalty was based, and the sentence was not excessive or disproportionate. State v. Reeves, EVIDENCE AND WITNESSES 90 (NCI4th). The trial court did not err in a first-degree murder sentencing hearing by not excluding as more prejudicial than probative testimony from the victim's five-year-old daughter delivered from her stepmother's lap. State v. Reeves, 542 (NCI4th). The trial court did not err in a first-degree murder sentencing hearing by admitting the testimony of the victim's five year old daughter, who was in another room of their home when the victim was killed, because the testimony as to the circumstances of the victim's death did "throw light" on the crime. State v. Reeves, 740 (NCI4th). There was no plain error in a first-degree murder sentencing hearing where the district attorney identified to the jury several family members and friends of the victim. State v. Reeves, 930 (NCI4th). An exculpatory statement about the shooting of the victim made by defendant to his aunt was not admissible as an excited utterance and was properly excluded as hearsay in his first-degree murder trial where defendant first talked with his aunt on the telephone after the shooting but waited until he went to his aunt's home an hour after the shooting to tell her what had happened. State v. Sidberry, 931 (NCI4th). The trial court did not err in a first-degree murder sentencing hearing by allowing the victim's mother-in-law to testify that on the morning of the murder she went to the victim's home, where the victim's two-and-a-half-year-old daughter came to the door and said, "Mama is asleep. Mama is dead." State v. Reeves, 1250 (NCI4th). Assuming that the trial court in a first-degree murder prosecution erred by failing to sustain defendant's objection and grant his motion to strike testimony by an F.B.I. agent who arrested defendant for unlawful flight to avoid prosecution that he asked defendant "if he was willing to make a statement, at which time he said he wanted to consult with an attorney before talking about the arresting matter," this error was harmless beyond a reasonable doubt. State v. Elmore, 1706 (NCI4th). The trial court did not err in the admission of three autopsy photographs of a murder victim when a photograph of the victim at the shooting scene and a photograph of the victim's chest showing the hole where the bullet entered the body had already been admitted and when there was no dispute as to the cause of death or who inflicted the fatal wound. State v. Gray, 2171 (NCI4th). The trial court did not abuse its discretion in a sentencing hearing for first-degree murder by allowing the State to ask a psychiatrist questions on cross-examination which revealed rapes and assaults by defendant in Virginia and Tennessee. State v. Reeves, 2538 (NCI4th). There was no error in a first-degree murder sentencing hearing where the prosecutor requested that the victim's daughter, five years old at the time of the hearing, be allowed to testify while sitting on her stepmother's lap; the court warned the stepmother that she must not intimate in any way to the child how she should testify; and the court put in the record after the testimony was complete that the stepmother had followed the court's instructions. State v. Reeves, 2539 (NCI4th). There was no error in a first-degree murder sentencing hearing in the admission of the testimony of the victim's daughter, who was two-and-a-half years old at the time of the killing and five years old at the time of the hearing. State v. Reeves, 2540 (NCI4th). The trial court did not err in a first-degree murder sentencing hearing by admitting the testimony of the victim's two-and-a-half-year-old daughter, who was five at the time of the hearing, where the daughter testified in effect that a person could be punished for not telling the truth. State v. Reeves, 2542 (NCI4th). There was no error in a first-degree murder sentencing hearing in the admission of the testimony of the victim's daughter, who was two-and-a-half years old at the time of the killing and five years old at the time of the hearing. State v. Reeves, 2899 (NCI4th). There was no error in a first-degree murder sentencing hearing where a psychiatrist who had examined defendant testified that defendant had functioned well for more than a year in jail and that with medication and treatment "would be safe" in a prison setting, and the State was allowed to ask the witness on cross-examination whether it would affect his opinion if he had heard that defendant had attempted to escape from prison in Virginia. State v. Reeves, 2994 (NCI4th). The trial court in a first-degree murder prosecution did not err by permitting the State to cross-examine defendant regarding prior guilty pleas to cocaine charges on which prayer for judgment had been continued pending the disposition of the murder charge. State v. Sidberry, 3169 (NCI4th). A witness's pretrial statement contained significant discrepancies from his testimony in a murder trial as to whether defendant handed the murder weapon to the killer just prior to the killing and whether the killer was responding to defendant's request when he shot the victim, and the trial court erred by admitting the statement into evidence as corroboration of the witness's trial testimony, but this error was harmless. State v. Sidberry, HOMICIDE 232 (NCI4th). The evidence was sufficient to support defendant's conviction of first-degree murder based on premeditation and deliberation and failed to establish self- defense as a matter of law. State v. Gray, INDICTMENT, INFORMATION AND CRIMINAL PLEADINGS 40 (NCI4th). An indictment alleging that defendant assaulted the victim " with his fists, a deadly weapon, by hitting [the victim] over the body with his fists and slamming his head against the cell bars and floor" and that this assault resulted in the victim's broken neck and paralysis was sufficient to allege that the cell bars and floor were deadly weapons, and the trial court did not err by permitting the State to amend the indictment to allege specifically that the cell bars and floor were deadly weapons since the indictment did not substantially alter the charge in the original indictment. State v. Brinson, INDIGENT PERSONS 252 (NCI4th). The trial court did not err in a sentencing hearing for first-degree murder by refusing to appoint a psychiatrist with expertise in sexual disorders. State v. Reeves, JURY 122 (NCI4th). There was no plain error in jury selection in a first-degree murder sentencing hearing where the prosecutor asked several questions of the jury to the effect that, if they found the defendant had a diminished capacity because of the consumption of alcohol, would they consider before finding this mitigating circumstance that the defendant knew when he consumed alcohol that its use affected him. State v. Reeves, 123 (NCI4th). There was no plain error during jury selection in a first-degree murder sentencing hearing where the prosecutor asked on eleven occasions whether the jury would be willing to vote for death. State v. Reeves, 132 (NCI4th). There was no error during jury selection for a first-degree murder sentencing hearing where the prosecutor asked whether the jury would be influenced by the victim not being there for them to see while the defendant was there. State v. Reeves, 141 (NCI4th). There was no error during jury selection for a first-degree murder sentencing hearing where the court denied defendant's motion to question jurors regarding their conceptions as to parole eligibility and, when two of the jurors asked about defendant's eligibility for parole, instructed them not to consider parole in their deliberations. State v. Reeves, 142 (NCI4th). There was no plain error in a first-degree murder sentencing hearing where the prosecutor asked questions during jury selection which defendant argued suggested that the jury was accountable to the victim's family and staked the jury out. State v. Reeves, 147 (NCI4th). It was not error for the prosecutor to say during jury selection in a first-degree murder case that this was a death penalty case where defendant contended that this was an expression of the prosecutor's opinion, but this was, in fact, a death penalty case. State v. Reeves, A misstatement by a prosecutor during jury selection for a first-degree murder prosecution was not so egregious that it required the court to intervene ex mero motu where the prosecutor stated that "the twelve of you that sit on this jury will recommend either work release or [the] death sentence in this case," but immediately before and immediately after that statement told the prospective jurors they would be recommending either a life or a death sentence. Ibid. 226 (NCI4th). There was no error in a first-degree murder sentencing hearing where the trial court refused to allow defendant to rehabilitate a juror whom the State challenged for cause. State v. Reeves, 262 (NCI4th). There was no error in a first-degree murder prosecution where the trial court allowed the State to use peremptory challenges to remove jurors who had expressed reservations about the death penalty but who could not have been challenged for cause. State v. Reeves, MALICIOUS PROSECUTION 10 (NCI4th). The trial court properly granted defendant public safety officer's motion for a directed verdict on the issue of punitive damages in a malicious prosecution action because the evidence was inadequate to show actual malice. Best v. Duke University, 19 (NCI4th). Probable cause existed as a matter of law for plaintiff's arrest on charges of trespass and larceny of patio furniture from the Duke Faculty Club and for his subsequent prosecution for larceny so that the trial court should not have submitted an issue of malicious prosecution to the jury. Best v. Duke University, Where uncontroverted evidence existed that was sufficient to establish probable cause as a matter of law, evidence of the dismissal of the criminal charge by the district attorney before the criminal trial is not sufficient evidence of a lack of probable cause to establish a question of fact for the jury in a malicious prosecution action. Ibid. NEGLIGENCE 6 (NCI4th). Plaintiff failed to present sufficient evidence of negligent conduct by defendant public safety officer resulting in plaintiff's arrest to survive defendant's motion for judgment notwithstanding the verdict in an action for the negligent infliction of emotional distress. Best v. Duke University, WORKERS' COMPENSATION 438 (NCI4th). The Court of Appeals exceeded its proper authority under G.S. 7A-29(a) by allowing plaintiff's petition for a writ of certiorari to review a workers' compensation order entered by a deputy commissioner and by rendering a decision on the statutory and constitutional validity of the procedures ordinarily employed to stop compensation under Form 24 and Rule 404 of the Industrial Commission. Martin v. Piedmont Asphalt & Paving,