CONTENTS 2 July 1993 APPEAL AND ERROR 147 (NCI4th). Defendant in a first-degree murder and robbery prosecution waived the issues of whether the trial court erred by excusing a prospective alternate juror upon its own motion and in refusing to allow defendant to rehabilitate that juror where defendant did not object to the excusal for cause and did not make a request to rehabilitate the prospective juror. State v. Wiggins, A defendant in a murder prosecution did not preserve for appellate review the issue of whether the trial judge erred by not declaring a mistrial as a result of the prosecutor's improper closing argument where the defendant did not make a motion for a mistrial. State v. Ginyard, 157 (NCI4th). A murder defendant was barred from assigning as error the trial court's failure to instruct the jury on lesser-included offenses supported by evidence at trial where defendant did not object to the instructions given by the trial court and did not request instructions on lesser offenses. Prior cases to the contrary are disapproved. State v. Collins, 158 (NCI4th). The trial court's error in failing to permit the jury to consider convicting a defendant of a lessor-included offense of attempted murder amounted to "plain error" so fundamental that it deprived defendant of a fair trial where a forensic pathologist with impeccable credentials clearly and unequivocally showed that defendant's action in shooting the victim had nothing to do with the victim's death. State v. Collins, CONSTITUTIONAL LAW 50 (NCI4th). Defendants had standing to challenge the constitutionality of North Carolina's former private examination statutes where the operation of G.S. 52-6 would invalidate a 1962 deed and directly deprive them of their bequests under a will. Dunn v. Pate, 344 (NCI4th). The State met its burden of showing that the trial court's error was harmless beyond a reasonable doubt where the trial judge conferred privately with a prospective juror who asked to be excused from jury duty. State v. Wiggins, CRIMINAL LAW 78 (NCI4th). The trial court did not err in the denial of defendant's motions for a change of venue of his first-degree murder case based on pretrial publicity surrounding the killing of a deputy sheriff in the same county by another black, teenage male less than one month before defendant's trial. State v. Lane, 91 (NCI4th). There was no prejudicial error in a first-degree murder and robbery prosecution where a probable cause hearing was scheduled but not held, but defendant was arrested upon a warrant and tried upon true bills of indictment, so that both the magistrate and the grand jury had the duty to determine the existence of probable cause, and defendant pointed to no evidence to support a finding of prejudice other than the passage of time. State v. Wiggins, 113 (NCI4th). There was no abuse of discretion arising from the failure of the State to furnish defendant, upon proper request, a statement of defendant where the trial was recessed and witnesses were interviewed to ascertain any additional statements defendant allegedly made. State v. Quarg, 803 (NCI4th). If the evidence before the court in the defendant's non-capital trial tended to show that defendant might be guilty of lesser-included offenses, the trial court was required under G.S. 15-169 and 15-170 to instruct the jury as to those lesser included crimes. State v. Collins, 940 (NCI4th). The trial court correctly denied a murder defendant's motion for appropriate relief alleging ineffective assistance of counsel where defendant was convicted on 26 March, filed notice of appeal on that same day, and filed the motion on 10 August. State v. Ginyard, 959 (NCI4th). The trial court did not abuse its discretion in denying defendant's motion for appropriate relief based on newly discovered evidence in a murder prosecution where the trial court concluded that the information was known and available to defendant at the time of trial. State v. Wiggins, DEEDS 25 (NCI4th). North Carolina's former private examination statutes are unconstitutional and noncompliance with those statutes in 1962 will not invalidate the deed. Dunn v. Pate, EVIDENCE AND WITNESSES 110 (NCI4th). Testimony by decedent's sister that decedent always kept from twenty to forty dollars on her person was evidence of habit admissible under Rule 406. State v. Palmer, 653 (NCI4th). The trial court's order denying defendant's motion to suppress his statements to a police officer filed fifty-seven days after defendant gave notice of appeal of his conviction was not improperly entered when the court was functus officio where the court held a hearing on the motion prior to trial and the judge in open court stated that the motion to suppress was denied. State v. Palmer, 876 (NCI4th). A hearsay statement by decedent, defendant's mother, that she would not give defendant money to bail him out of an embezzlement charge was admissible under the state of mind exception to the hearsay rule and was relevant to show a motive by defendant to kill his mother. State v. Palmer, 1235 (NCI4th). The trial court did not err in a prosecution for first-degree murder and robbery by denying defendant's motion to suppress his statement to an S.B.I. agent where there was nothing to suggest that defendant was in custody or deprived of his freedom of action in any significant way and the totality of the circumstances suggests that defendant's statement to the agent was not involuntary. State v. Wiggins, 1942 (NCI4th). There was sufficient evidence to support the trial court's admission of a letter into evidence where the letter was purportedly written by defendant in printed rather than cursive lettering but the witness who received the letter testified that he recognized defendant's handwriting, having received another letter from defendant and having seen some songs which defendant had written. State v. Wiggins, 1249 (NCI4th). Defendant waived his right to counsel under the Sixth Amendment to the U.S. Constitution and Art. I, 23 of the N.C. Constitution when he signed a written waiver of his rights after being given the Miranda warnings even though he was not informed that he was entitled to counsel under the Sixth Amendment and Art. I, 23 rather than under the Fifth Amendment since adversary judicial proceedings had been commenced against him. State v. Palmer, 2185 (NCI4th). There was no prejudicial error in an indecent liberties prosecution where defendant requested that the State voluntarily produce copies of all results or reports of physical or mental exams or tests, the State provided a copy of an initial report, the social worker who prepared the report was called at trial, defendant objected to a question as to whether the clinical social worker had diagnosed the victim as suffering from any trauma, the court ruled his testimony inadmissible because the State had failed to provide defendant with a final report or any progress reports of subsequent interviews, defendant cross-examined the social worker concerning a specific statement by the victim, and the State was allowed on redirect to question the social worker extensively concerning statements by the victim's mother and to elicit his opinion as to whether the victim suffered from post-traumatic stress disorder. State v. Quarg, 2342 (NCI4th). There was no error in an indecent liberties prosecution where the court admitted testimony that the victim was suffering from post-traumatic stress disorder and instructed the jury that the testimony was admitted to show the basis for the treatment which the witness administered to his patient and not to prove the truth of the matters stated. The limiting instruction given was favorable to defendant and, since the record is silent as to a request for a limiting instruction on corroboration, the failure to give such an instruction was not error. State v. Quarg, 2510 (NCI4th). A detective was properly permitted to testify that there was no forced entry into a murder victim's apartment where the detective testified concerning his inspection of the apartment which formed the basis for this conclusion. State v. Palmer, HOMICIDE 21 (NCI4th). Attempted murder exists as a part of the criminal law of North Carolina and is a lesser offense included within the greater crime of murder. There was plain error where the trial court did not instruct the jury on attempted murder in a non-capital first-degree murder prosecution. State v. Collins, 136 (NCI4th). There was no plain error in a murder prosecution in the failure to instruct on the lesser-included offense of felonious assault where there was evidence that defendant had shot the victim but not caused his death but defendant had been charged by a short-form indictment. State v. Collins, 250 (NCI4th). The State's evidence, including testimony that defendant and the victim had previously experienced ill will resulting from an ongoing love triangle involving them and a female and that defendant had repeatedly threatened the victim's life, was sufficient for the jury to find that defendant was the perpetrator of the killing of the victim and that he acted with premeditation and deliberation. State v. Barnes, 254 (NCI4th). There was sufficient substantial evidence of premeditation and deliberation to support the trial court's denial of the defendant's motion to dismiss at the conclusion of all of the evidence where evidence of the nature and number of the victim's wounds provides substantial evidence from which the jury could properly infer that defendant premeditated and deliberated before killing the victim. State v. Ginyard, 256 (NCI4th). There was sufficient evidence of first-degree murder based on premeditation and deliberation. State v. Wiggins, 257 (NCI4th). There was sufficient substantial evidence of premeditation and deliberation to support the trial court's denial of the defendant's motion to dismiss at the conclusion of all of the evidence where the fact that defendant was carrying a knife was evidence tending to support an inference that he had anticipated a possible confrontation with the victim and that he had given some forethought to how he would resolve that confrontation. State v. Ginyard, 263 (NCI4th). There was sufficient evidence that defendant took U.S. currency and a pistol from decedent to support his conviction of murder in the perpetration of armed robbery. State v. Palmer, 528 (NCI4th). Any error in not instructing the jury on voluntary manslaughter was harmless where the trial court instructed the jury on first-degree and second-degree murder and the jury convicted defendant of first-degree murder. State v. Ginyard, 558 (NCI4th). There was no error in a first-degree murder prosecution where the court charged on second-degree murder at defendant's request but refused to charge on voluntary manslaughter. State v. Wiggins, 571 (NCI4th). There was no error in a first-degree murder prosecution where the court charged on second-degree murder at defendant's request but refused to charge on involuntary manslaughter. State v. Wiggins, 612 (NCI4th). The trial court in a felony murder prosecution was not required to instruct on self-defense by evidence that defendant took a knife away from his mother and stabbed her as she walked away from him or that he shot his mother when she crawled toward him after being stabbed and threatened him. State v. Palmer, 1070 (NCI4th). The trial court's instruction on flight was supported by evidence that defendant made unexpected visits to friends in Virginia and South Carolina following a homicide and by evidence that, while awaiting trial, defendant wrote a letter to his sister planning his escape if convicted. State v. Barnes, INDIGENT PERSONS 14 (NCI4th). Principles of due process require that, absent the appointment of counsel, indigent civil contemnors may not be incarcerated for failure to pay child support arrearages. McBride v. McBride, INSURANCE 530 (NCI4th). An underinsured motorist carrier was not entitled by the terms of the policy to a credit under the underinsured motorist coverage section for a payment it made to its insured under the medical payments section of the policy. Baxley v. Nationwide Mutual Ins. Co., 690 (NCI4th). An underinsured motorist carrier was obligated by the terms of the policy to pay prejudgment interest on the compensatory damages award of the jury in the underlying tort action by its insured against the tortfeasor up to its policy limits. Baxley v. Nationwide Mutual Ins. Co., JUDGMENTS 243 (NCI4th). The married defendants are in privity with a party to a prior action where, pursuant to a consent judgment in the prior action, they obtained title to the subject property from plaintiff, and the minor defendant is in privity because he is an heir of a party to the original action. Smith v. Smith, 303 (NCI4th). Before any kind of trust or equitable lien could be impressed upon property conveyed pursuant to a consent judgment, the consent judgment would have to be directly attacked by a motion in the cause. Smith v. Smith, 363 (NCI4th). Plaintiff could not collaterally attack an existing equitable distribution consent judgment in a former action by seeking to engraft a constructive trust or an equitable lien on property conveyed to defendant husband's brother pursuant to the judgment on the ground of intrinsic fraud by defendant husband; nor could the minor defendant collaterally attack the consent judgment by seeking to engraft an express trust on such property. Smith v. Smith, JURY 91 (NCI4th). A first-degree murder defendant's Batson challenge was properly denied by the trial court where the State voluntarily proffered explanations for the exercise of each peremptory challenge; the explanations offered by the State constitute valid non-racial reasons for the exercise of peremptory challenges; the record supports the conclusion that the explanations were not a pretext; and defendant offered no evidence to show that any reason offered by the State was a pretext. State v. Collins, 215 (NCI4th). The trial court did not abuse its discretion in the denial of defendant's challenges for cause of a prospective juror in a capital case where the juror indicated during examination by defendant that the only time the death penalty was not appropriate was when the defendant acted in self-defense, and the juror thereafter stated during rehabilitation by the State that she would consider each mitigating circumstance that she was instructed to consider, and the juror assured the court that she would be able to impose a sentence of life imprisonment. State v. Lane, 220 (NCI4th). Any error by the trial court in refusing to allow defendant to question prospective jurors in a capital case concerning the circumstances in which the death penalty or life imprisonment would be appropriate was harmless since defendant received a sentence of life imprisonment. State v. Lane, 226 (NCI4th). The trial court erred during jury selection in a capital sentencing proceeding by refusing to permit defendant to question any prospective juror whom the prosecutor challenged for cause on the basis of his or her views about capital punishment where the refusal resulted from a misapprehension of law that the N.C. Supreme Court has held that rehabilitation of jurors is always a waste of valuable court time, and defendant is entitled to a new sentencing hearing where the ruling effected the excusal for cause of a prospective juror who was likely qualified to be seated as a juror. State v. Brogden, MUNICIPAL CORPORATIONS 30.8 (NCI3d). A superior court determination that petitioner's proposed duplexes constituted duplexes rather than rooming houses under the Chapel Hill Development Ordinance was reinstated where there was no functional description in the ordinance of a "single housekeeping unit" other than the sharing of a single culinary facility and, given that the proposed duplexes include only one such facility per unit, the proposed tenants were not excluded from "family" as defined in the ordinance. Capricorn Equity Corp. v. Town of Chapel Hill, ROBBERY 4.3 (NCI3d). There was sufficient evidence that defendant committed a robbery with a dangerous weapon. State v. Wiggins, 5.2 (NCI3d). The trial court in a prosecution for felony murder did not commit plain error by instructing that, in order to find defendant guilty of the underlying felony of armed robbery, the jury must find that defendant took "property" from the person or presence of the victim rather than charging that the jury must find that he took U.S. currency and a pistol as alleged in the indictment. State v. Palmer, WILLS 3 (NCI3d). The trial court correctly directed a verdict for the propounders on the issue of whether a will was properly executed where the right-handed testator had lost the use of his right hand to a stroke; his attorney asked the testator if he wanted the attorney to sign his name and he replied that he did; the testator grasped the pen in his left hand and, guided by his attorney's hand, made his mark; the attorney signed the testator's name on each page where the testator had made his mark; and the attorney then witnessed the will. In re Will of Jarvis, 21.4 (NCI3d). The trial court correctly directed a verdict for the propounders on the issue of whether a signature on a will was obtained by undue influence where the caveators did not identify the individual who allegedly asserted the influence nor suggest how the manner in which the testator signed the document manifested the intentions of anyone else. In re Will of Jarvis, 22 (NCI3d). The trial court should not have granted a directed verdict for propounders on the issue of testamentary capacity where the testimony of the testator's attorney tended to show that he had the mental capacity to make a will but other evidence showed that he did not. In re Will of Jarvis,