CONTENTS 29 JULY 1994 APPEAL AND ERROR 44 (NCI4th). Although an issue concerning the trial judge's comments on her duty to consider the testimony of a child as related by adult witnesses was not addressed by either party on appeal to the Court of Appeals, the Court of Appeals could consider the effect of the comments as a matter of appellate grace. Phelps v. Phelps, ARREST AND BAIL 135 (NCI4th). There was no plain error in a first-degree murder prosecution from the introduction of a letter defendant wrote to the governor after he was arrested in which he stated that he was not crazy and that what he did was premeditated. State v. Daniels, ASSAULT AND BATTERY 31 (NCI4th). The trial court's instruction on transferred intent as it related to a charge of assault with a deadly weapon with intent to kill inflicting serious injury did not permit the jury to apply an unconstitutional presumption against defendant. State v. Carson, 116 (NCI4th). In a prosecution of defendant for assault of his wife with a deadly weapon with intent to kill, defendant's testimony that he was unaware that his wife was in the car at the time he shot into the vehicle did not require the trial court to instruct on the lesser included offense of misdemeanor assault with a deadly weapon where defendant's intent to kill was shown by uncontradicted evidence. State v. Barlowe, ATTORNEYS AT LAW 38 (NCI4th). The trial court did not err in a first-degree murder prosecution by excluding the testimony of the public defender, in whose office one of defendant's attorneys worked, or by denying that attorney's motion to withdraw. State v. Daniels, AUTOMOBILES AND OTHER VEHICLES 187 (NCI4th). The statutory requirement that a franchisor's objection to a proposed automobile dealership relocation be sent "by registered or certified mail, return receipt requested" refers exclusively to the U.S. Mail and not a private delivery service that provides a signed receipt. Nissan Motor Corp. v. Fred Anderson Nissan, BURGLARY AND UNLAWFUL BREAKINGS 164 (NCI4th). In a prosecution for first-degree burglary wherein the State presented evidence that defendant intended to murder the victim at the time he broke and entered her home, defendant presented sufficient evidence that the killing of the victim was accidental and that he did not posses the requisite intent to murder at the time he entered her home so that the trial court erred by refusing to instruct the jury on misdemeanor breaking or entering. State v. Barlowe, CONSTITUTIONAL LAW 92 (NCI4th). The statute the trial court follows in determining child custody does not classify an older parent either on its face or in its application, and the trial court's passing comments about plaintiff father's age when determining the child's best interest in accordance with the statute did not constitute an unlawful classification in violation of plaintiff's equal protection rights. Phelps v. Phelps, Assuming that a parent's right to the custody of a child was fundamental, the trial court's consideration of a parent's age in determining custody between two natural parents did not violate equal protection. Ibid. 184 (NCI4th). Defendant's convictions and punishments for trafficking in cocaine by possession and felonious possession of cocaine, based on the same contraband, do not violate the principles of double jeopardy because an examination of the subject, language and history of the statutes indicates that the legislature intended that these offenses be punished separately. State v. Pipkins, 251 (NCI4th). Defendant inmates were not prejudiced in their murder trial by the trial court's refusal to compel the State to reveal the name of a confidential informant who was an eyewitness where the State furnished the name of the informant to defendants when it gave them a list of the witnesses it would call, and defendants could have determined the identity of the informant by interviewing the State's witnesses. State v. Leazer, 318 (NCI4th). Defense counsel in a noncapital first-degree murder prosecution complied with the requirements of Anders v. California, 386 U.S. 738, where counsel found no errors in the trial but submitted a brief referring to defendant's contention that the signing and entry of the judgment against him was in error, a contention which "might arguably support the appeal"; counsel provided defendant with the State's brief, defendant's brief, and the record on appeal; and defendant was notified that he could file a brief on his own behalf raising any arguments he wished to make, but he chose not to do so. State v. Dobson, 343 (NCI4th). There was no error in a capital prosecution for first- degree murder, and, assuming error, there was no prejudice, where the trial judge heard arguments on a suppression motion on a Friday, indicated that she would make her ruling before opening statements and would telephone counsel to give them her ruling, and made separate telephone calls to counsel to announce her ruling on Sunday, the conversations were not recorded, and defendant was not present. State v. Daniels, There was no prejudicial error in a first-degree murder prosecution where a prospective juror stated during voir dire that she had an airline ticket for a vacation and did not know whether it was refundable but could still render a fair decision; she discovered that her ticket was nonrefundable and could not be used for another feasible flight and that her vacation accommodations were likewise nonrefundable after being selected as a juror; in a discussion on the record, she said the financial loss that would result from her jury service would prevent her from being fair and impartial; the trial judge asked to see counsel for an in-chambers conference; and the juror was ultimately excused. Ibid. 371 (NCI4th). The North Carolina death penalty is not unconstitutional based upon the heinous, atrocious, or cruel aggravating circumstance being vague and arbitrary. State v. Daniels, CRIMINAL LAW 442 (NCI4th). There was no prejudicial error in the prosecutor's argument in a noncapital first-degree murder prosecution where defendant contended that the prosecutor argued that it was the jury's duty to avenge the victim's death. State v. Bryant, 454 (NCI4th). Any impropriety in a prosecutor's closing argument in a sentencing hearing for first-degree murder was not so gross that the trial court should have intervened ex mero motu where defendant contended that the prosecutor erroneously diminished the jury's responsibility. State v. Daniels, Biblical references in the prosecutor's argument in a first- degree murder sentencing hearing were not so grossly improper as to require intervention of the trial court ex mero motu where the Supreme Court did not perceive prejudice and in light of defense counsel's use of the Bible in his closing argument. Ibid. 762 (NCI4th). There was no error in a noncapital first-degree murder trial under Cage v. Louisiana, 498 U.S. 39, from the use of the phrase "honest substantial misgiving" in defining reasonable doubt. State v. Bryant, 1042 (NCI4th). A defendant was entitled to a new sentencing for three assault convictions where the indictments included the felony of assault with a deadly weapon inflicting serious injury, the jury found defendant guilty of the lesser charge of assault with a deadly weapon, a misdemeanor, and the judgment and commitment sheet indicate that the judge sentenced defendant on the basis of the felony. State v. Daniels, 1325 (NCI4th). The trial court did not err in a capital sentencing hearing by instructing the jury that each juror "may" consider mitigating circumstances that juror found to exist when weighing the aggravating and mitigating circumstances. State v. Daniels, 1341 (NCI4th). The trial court did not err in a first-degree murder sentencing hearing by submitting the aggravating circumstance of pecuniary gain. State v. Daniels, 1349 (NCI4th). The trial court did not err in a first-degree murder prosecution by not specifically instructing the jury that the statutory mitigating circumstances have mitigating value where defendant contended that the jurors would have become confused based on the fact that they were told to determine whether nonstatutory mitigating circumstances had mitigating value. State v. Daniels, 1355 (NCI4th). The trial court erred by failing to instruct the jury in a capital sentencing hearing on the statutory mitigating circumstance that defendant had no significant history of prior criminal activity where evidence presented by the State revealed that defendant had used drugs illegally and had been convicted of larceny, receiving stolen goods and forgery, since the jury should have been allowed to consider whether this history was insignificant. State v. Quick, There was no error in a first-degree murder prosecution in the instructions on the mitigating circumstance of no significant history of prior criminal conduct where the instruction on the circumstance limited it to the previous ten years as defendant had done when he presented the evidence; the trial court instructed the jury in the only way supported by the evidence. State v. Daniels, 1363 (NCI4th). The trial court did not err in a first-degree murder prosecution by instructing the jury that it could refuse to consider nonstatutory mitigating evidence if it deemed that the evidence had no mitigating value. Ibid. 1373 (NCI4th). A death penalty was not disproportionate. State v. Daniels, DIVORCE AND SEPARATION 337 (NCI4th). The trial judge's comments about the father's age in her oral statement explaining her decision to grant child custody to defendant mother and her mention of the ages of both parents in her written order did not create a presumption in favor of the younger mother in violation of G.S. 50-13.2(a). Phelps v. Phelps, 350 (NCI4th). The trial judge's brief references to the ages of the parties in an oral statement and in her written order did not indicate that plaintiff father's age was a "fundamental" basis of her decision awarding custody of a child to defendant mother. Phelps v. Phelps, The statute the trial court follows in determining child custody does not classify an older parent either on its face or in its application, and the trial court's passing comments about plaintiff father's age when determining the child's best interest in accordance with the statute did not constitute an unlawful classification in violation of plaintiff's equal protection rights. Ibid. Assuming that a parent's right to the custody of a child was fundamental, the trial court's consideration of a parent's age in determining custody between two natural parents did not violate equal protection. Ibid. 352 (NCI4th). The trial judge in a child custody case did not err by indicating that she found it "dangerous" to allow into evidence statements of parents relating what a child has said and by giving such statements limited weight where the judge admitted such hearsay statements under Rule 803 and acknowledged the admission of such evidence in her written findings of fact. Phelps v. Phelps, EVIDENCE AND WITNESSES 173 (NCI4th). The court did not err in a first-degree murder prosecution by admitting testimony from the victim's twelve-year-old son that his state of mind when the defendant entered the house on a prior occasion was "fear." State v. Lynch, 284 (NCI4th). In a prosecution of defendant inmates for the murder of a fellow inmate wherein defendants contended that another inmate killed the victim because he was afraid the victim would kill him, evidence that the victim had twice been convicted of murder was not admissible under Rule 404(a)(2) as a pertinent character trait of the victim since neither defendant relied on self-defense or any other justifiable homicide which would have made the victim's character pertinent. State v. Leazer, 293 (NCI4th). The trial court did not err in a first-degree murder prosecution by admitting testimony by the victim's twelve year old son that he had awakened at 5:00 a.m. on a morning prior to the day of the murder when he heard defendant in the house; that he had recognized defendant as the intruder, climbed out a window and gone to the home of a neighbor, who called the police; that defendant had been charged with felonious breaking or entering; and that a district court judge had found no probable cause. State v. Lynch, 339 (NCI4th). The trial court did not err in a noncapital first- degree murder prosecution by allowing a prosecution witness to testify concerning other alleged acts of violence and threats of violence by defendant where the testimony was corroborative of other testimony, was corroborated by other testimony, and tended to show malice, an essential element of first-degree murder. State v. Bryant, 694 (NCI4th). There was no error in a first-degree murder prosecution where defendant twice attempted to ask a deputy on cross- examination whether the initial report in a domestic investigation is sometimes not true, objections were sustained, and defendant then asked if that was because people are nervous and upset and afraid, sometimes because they are not telling the truth, to which the deputy answered "It's possible." State v. Lynch, 775 (NCI4th). There was no prejudicial error in a noncapital first- degree murder prosecution where the court excluded testimony concerning defendant's plans on the night of the murder, which defendant contends were relevant to show that defendant did not go to the victim's trailer but went to look for men from whom he had arranged to buy stolen goods. The evidence offered an additional explanation for defendant's presence in the area of the scene of the crime rather than an alibi, defendant was able to get the evidence before the jury, and defendant put on extensive evidence to support a different alibi. State v. Bryant, 1009 (NCI4th). The trial court did not err by finding that hearsay statements made to an officer by an unavailable witness who refused to testify possessed sufficient guarantees of trustworthiness to be constitutionally admissible in a murder trial under Rule 804(b)(5). State v. Peterson, 1077 (NCI4th). The trial court erred by permitting the State to cross-examine defendant about his silence in the face of an SBI agent's accusation of murder during interrogation after defendant had been advised of his Miranda rights and had been informed that he was under arrest. State v. Quick, 1087 (NCI4th). The trial court in a capital resentencing hearing erred by permitting the State to elicit testimony from an SBI agent that, during interrogation after defendant had been advised of his Miranda rights and had been informed that he was under arrest, defendant had remained silent when faced with the agent's accusation that he murdered the victim. State v. Quick, 1652 (NCI4th). Five photographs depicting defendant's extensive destruction of the contents of the home he shared with his wife were properly admitted to illustrate the testimony of three witnesses that on the night of a murder and other crimes defendant acted overtly hostile and with inexplicable violence toward his wife even though defendant admitted destroying most of the property shown in the photographs. State v. Barlowe, 1694 (NCI4th). The trial court did not err in allowing the admission of photographs depicting a murder victim's body and items found at the crime scene and in allowing the State's witnesses to testify about the photographs from the witness stand and then to repeat their testimony near the jury. State v. Peterson, 1731 (NCI4th). A videotape of the removal of a murder victim's body from the cellblock in which the murder occurred and its placement in elevator 2 was relevant to refute defendant inmates' suggestion that blood in elevator 4 came from the victim's body or from those who removed the body. State v. Leazer, 2101 (NCI4th). The trial court did not err in a first-degree murder prosecution by excluding portions of the testimony of a law enforcement officer regarding defendant's mental state following his confession. State v. Daniels, 2296 (NCI4th). The trial court did not err in a first-degree murder prosecution by overruling defendant's objection to testimony by the State's psychiatric expert where the expert had not personally interviewed defendant. State v. Daniels, 2522 (NCI4th). The trial court erred in a prosecution for the sexual assault of a nineteen-year-old mentally handicapped female by appointing a licensed psychologist to examine the victim and directing the psychologist to testify if called as a witness. State v. Horn, 2593 (NCI4th). The trial court did not err in a first-degree murder prosecution by excluding the testimony of the public defender, in whose office one of defendant's attorneys worked, or by denying that attorney's motion to withdraw. State v. Daniels, 2793 (NCI4th). Any error by the trial court in a murder trial in permitting the State to cross-examine two witnesses already sentenced for the victim's murder regarding the actual amount of time they would serve in prison did not constitute plain error. State v. Peterson, 2840 (NCI4th). There was no prejudicial error in a first-degree murder prosecution where defendant asked a police officer on cross- examination whether he had told another officer that defendant was "all coked up"; the officer had responded that he did not recall making that statement; and the trial court refused to allow defendant to refresh the officer's memory with a transcript of a tape recording of a telephonic transmission. State v. Daniels, 2891 (NCI4th). The trial court did not err in a first-degree murder prosecution by excluding testimony on cross-examination that a witness to whom defendant confessed had sexual relations with defendant after the confession. State v. Bryant, 2983 (NCI4th). Any error by the trial court in a murder trial in permitting the State, without object by defendant, to cross-examine two witnesses already sentenced for the victim's murder regarding the actual amount of time they would serve in prison did not constitute plain error. State v. Peterson, 2993 (NCI4th). The trial court did not err in a first-degree murder prosecution by denying defendant the use of an assault conviction to impeach a State's witness where defendant's attorney asked the witness if he had been convicted of assault, the witness answered that he had not been convicted but had been found not guilty, and defendant's attorney attempted to introduce a court record which did not show a verdict but said "PJ cont and costs remitted" and "[h]ave no contact with each other." State v. Lynch, 3003 (NCI4th). The trial court did not err in a first-degree murder prosecution by admitting evidence that defendant had been convicted of aggravated robbery in Colorado on 14 June 1974 where defendant was released from prison and parole on 19 July 1982 and this trial began on 17 August 1992, approximately ten years and one month after defendant was released from prison. State v. Lynch, HOMICIDE 232 (NCI4th). The evidence in a first-degree murder trial, including testimony that an eyewitness saw defendant holding a gun to the victim's head just before she heard one gunshot, was sufficient to withstand defendant's motion for a directed verdict at the close of the evidence. State v. Peterson, 271 (NCI4th). There was no error in submitting the felony murder theory with the predicate felony of common law robbery where defendant admitted in his confession that he intended to and did ask the victim for money; when she responded that she was going to call his mother, defendant punched her, strangled her, and took $70.00 to $80.00 from her wallet; defendant stated that he was having financial problems and that he could lose his house; and defendant said, "Bills set me off." State v. Daniels, 280 (NCI4th). The State presented sufficient evidence for the jury to conclude that defendant personally fired the shot that inflicted the fatal wound upon the victim so as to support defendant's conviction of first-degree felony murder based upon the predicate felony of firing into an occupied vehicle. State v. Carson, 478 (NCI4th). The trial court's instruction on transferred intent as it related to a charge of assault with a deadly weapon with intent to kill inflicting serious injury did not permit the jury to apply an unconstitutional presumption against defendant. State v. Carson, 563 (NCI4th). There was no error in a first-degree murder prosecution where the trial court failed to give defendant's requested instruction to the jury concerning a killing committed during a quarrel or struggle. State v. Daniels, 658 (NCI4th). The trial court did not err by refusing to instruct the jury on voluntary intoxication in a felony murder prosecution based on the underlying felony of first-degree burglary with the intent to commit murder where the evidence showed only that defendant consumed alcoholic beverages during the day and evening of the crimes and that defendant was somewhat intoxicated. State v. Barlowe, 727 (NCI4th). Where the jury found defendant guilty of felony murder based on the underlying felonies of first-degree burglary and discharging a firearm into occupied property, and there was error in submission of first-degree burglary requiring a new trial on that charge, the judgment imposed on the discharging a firearm into occupied property conviction must be arrested. State v. Barlowe, INCOMPETENT PERSONS 14 (NCI4th). The clerk of court had the authority to reopen an incompetency hearing where respondent was in an automobile collision in Texas, his attorney filed an incompetency petition in North Carolina which may have affected the statute of limitations, and the defendant in the Texas suit was not given notice. The interest of the opposing party clearly falls within the intended scope of the statute and should be protected by notice to that party where a determination of incompetency may effect the tolling of an otherwise expired statute of limitations. In re Ward, INSURANCE 43 (NCI4th). Entry of summary judgment for plaintiffs would be inappropriate where there were a number of genuine issues of material fact remaining with regard to whether plaintiffs possessed a "covered claim" within the statutory meanings. Hales v. N.C. Insurance Guaranty Assn., 635 (NCI4th). An automobile liability insurance policy was in effect at the time an accident occurred where the insurance company failed to satisfy the requirements of G.S. 20-310(f) as it appeared at the time of the accident. Hales v. N.C. Insurance Guaranty Assn., JUDGMENTS 223 (NCI4th). Plaintiffs were not barred by the doctrines of res judicata or collateral estoppel, and the doctrine of virtual representation was not adopted, in an insurance action arising from an automobile accident. Hales v. N.C. Insurance Guaranty Assn., NEGLIGENCE 19 (NCI4th). When a child sues for negligent infliction of emotional distress because of injury to a parent caused by the negligence of a third party, the parent-child relationship, standing alone, is insufficient to establish reasonable foreseeability. Hickman v. McKoin, NOTICE 4 (NCI4th). The statutory requirement that a franchisor's objection to a proposed automobile dealership relocation be sent "by registered or certified mail, return receipt requested" refers exclusively to the U.S. Mail and not a private delivery service that provides a signed receipt. Nissan Motor Corp. v. Fred Anderson Nissan, PARENT AND CHILD 24 (NCI4th). The trial court correctly ordered an adopted child returned to its biological parents where the trial court found that the biological mother had consistently and continuously attempted to set aside her consent; that the male defendant is the biological father and had attempted to legitimate his son on several occasions; a Michigan home study reflects that defendants are fit and appropriate persons to have custody of their son; the son was not eligible for adoption and the rights of his parents have not been terminated; and there was no finding that defendants had neglected their child's welfare in any way. Petersen v. Rogers, 28 (NCI4th). The trial did not err when revoking an adoption and awarding custody of the child to the biological parents by including a conclusion that there should be no visitation with plaintiffs (the adoptive parents) except as may be consented to and approved by defendants. Petersen v. Rogers, SEARCHES AND SEIZURES 80 (NCI4th). An officer had a reasonable suspicion of criminal activity to justify an investigatory stop of defendant's vehicle where the officer observed a car moving with its lights off at 3:00 a.m. in the parking lot of a business in a generally rural area. State v. Watkins, SECURITIES AND INVESTMENT REGULATIONS 119 (NCI4th). The pervasive federal regulatory scheme for futures trading permits the liquidation of a customer's under-margined account without prior demand or notice, and defendant merchant acted properly in liquidating plaintiffs' under-margined stock index futures contracts without notice to plaintiffs where plaintiffs had failed to meet a previous margin call and another margin call was imminent. Moss v. J.C. Bradford and Co.,