CONTENTS 29 JULY 1994 APPEAL AND ERROR 451 (NCI4th). The issue of whether there was sufficient evidence to accept a plea of no contest to a perjury charge was not properly before the Supreme Court where it was not presented as an assignment of error in the Court of Appeals. State v. Brooks, ASSAULT AND BATTERY 21 (NCI4th). The evidence of defendant Cunningham's intent to kill Corey Hill was sufficient to withstand his motion to dismiss considering the nature of the assault, the weapon used, and the circumstances. State v. Alexander, 22 (NCI4th). There was sufficient evidence of injury presented at trial to withstand defendants' motion to dismiss charges of assault with a deadly weapon with intent to kill inflicting serious injury. State v. Alexander, CONSPIRACY 43 (NCI4th). The trial court did not commit plain error by instructing the jury that it could find defendant guilty of conspiracy without limiting the conspiracy to those people named in the indictment. State v. Johnson, CONSTITUTIONAL LAW 313 (NCI4th). The State's introduction of a portion of defense counsel's tape-recorded interview with the State's principal witness in which defense counsel stated, following a discussion of threats to the witness and a statement by the witness that his going home made his mother and grandmother nervous, that "I'm going to be nervous being in court with you" did not reflect upon the substantive aspects of defendant's case and would not necessarily portray defendant's attorney's representation of him as unworthy of serious consideration by the jury. State v. Mason, Defense counsel did not forecast a defense not supported by the evidence and thus deny defendant the effective assistance of counsel by her opening state that defendant was a "scapegoat." Ibid. 314 (NCI4th). Defense counsel was not unreasonable and ineffective in a resentencing for first-degree murder where the defense presented videotaped depositions from defendant's former friends and neighbors that contained explicit or implicit references to parole. State v. Bacon, Defense counsel did not provide ineffective representation in a resentencing for first-degree murder where counsel mentioned in defendant's closing argument that his mother had to hear the judge impose a death sentence at the first hearing. Ibid. 342 (NCI4th). Defendant failed to demonstrate that his state or federal constitutional rights were violated at a resentencing hearing for first-degree murder where the court had granted an amended defense motion to record conferences or discussions in chambers when the defense indicated that it was necessary and the judge conducted numerous bench conferences with counsel in which defendant did not participate. State v. Bacon, 344 (NCI4th). There was no prejudicial error during jury selection for a resentencing hearing in a first degree murder prosecution where the trial judge engaged in an unrecorded communication with a prospective juror. State v. Bacon, 365 (NCI4th). Imposing a death penalty upon a first-degree murder defendant was not unconstitutional. State v. Bacon, 370 (NCI4th). Imposition of the death penalty on defendant was not unconstitutional because he was suffered lifelong organic brain damage and is mentally retarded. State v. Skipper, CRIMINAL LAW 100.1 (NCI4th). A witness's testimony that a police detective advised him not to discuss the case with anyone else was insufficient to establish prosecutorial misconduct resulting in the denial of defendant's right to a fair trial. State v. Mason, 109 (NCI4th). The trial court did not err by requiring a defense psychiatrist to compile a written report of his evaluation of defendant and submit it to the district attorney where the order provided no more than the reciprocal discovery requirements under G.S. 15A-905(b). State v. Bacon, 395 (NCI4th). The trial judge did not act impartially in favor of the State in determining challenges for cause of prospective jurors in a capital trial based on their capital punishment beliefs by the manner in which he questioned a juror who gave equivocal answers about her beliefs or by asking jurors being questioned by defendant if they could follow the law as given to them. State v. Skipper, 414 (NCI4th). The trial court did not coerce defendant into introducing evidence so that he lost his right to open and close the final argument when the court sustained the prosecutor's objection to defendant's use of a photograph to illustrate a witness's testimony during cross-examination unless it was introduced into evidence. State v. Skipper, 425 (NCI4th). There was no error in a first-degree murder resentencing where the prosecutor properly drew the jurors' attention to the failure to establish any membership qualifications for the organizations to which defendant's expert belonged. State v. Bacon, 427 (NCI4th). The prosecutor's remark during voir dire of potential jurors that the jury would be hearing from witnesses who were at a party, "both from the State and I would suspect also from the defendant," did not constitute an improper comment directed toward defendant's assertion of his right not to testify. State v. Mason, 429 (NCI4th). Any possible error created by the prosecutor's jury argument references to defendant's failure to testify was cured by the trial court's actions and instructions. State v. Skipper, 436 (NCI4th). There was no error in a resentencing for first- degree murder where the prosecutor argued the brutal nature of the killing and that defendant is dangerous despite the fact that the especially heinous, atrocious or cruel aggravating circumstance could not be considered because it had been submitted and not found by the jury at the first trial. State v. Bacon, 439 (NCI4th). There was no prejudicial error in the district attorney's argument concerning defendant's psychiatric testimony in a first-degree murder resentencing where the error, if it was error, was harmless in light of the trial court's instruction that counsel's statements were not evidence. State v. Bacon, 441 (NCI4th). The trial court did not err in a resentencing hearing in a first-degree murder case by allowing the district attorney to argue that the jury should view a defense psychiatrist's testimony with caution because of his financial arrangement with the defense. State v. Bacon, 447 (NCI4th). A prosecutor's closing argument in a resentencing for first-degree murder was not grossly improper where the prosecutor argued that only one side of the story had been told and that the jury should consider what the victim would have said if he had been able to testify. State v. Bacon, 452 (NCI4th). There was no error in a resentencing hearing for first-degree murder where defendant contended that the district attorney improperly suggested that the jury weigh the aggravating circumstance against the mitigating circumstances one on one rather than as a group, but the prosecutor's approach was to argue each mitigating circumstance separately, the prosecutor explained that viewing the aggravating and mitigating circumstances is not a counting process, and the court correctly charged the jury. State v. Bacon, 454 (NCI4th). A prosecutor's closing argument in a first- degree murder resentencing was not so grossly improper as to require the trial judge to intervene ex mero motu where the prosecutor asked the jurors whether defendant deserved the same thing he had imposed on the victim. State v. Bacon, There was no error in a resentencing hearing for first- degree murder where the district attorney argued that the jury should not find the impaired capacity mitigating circumstance. Ibid. 455 (NCI4th). The trial court did not err in a resentencing hearing for a first-degree murder by allowing the prosecutor to make a specific deterrence argument. State v. Bacon, 464 (NCI4th). There was no gross impropriety in the closing argument of a resentencing hearing for first-degree murder where the prosecutor stated that there was no evidence to support the mitigating circumstance that defendant had admitted his involvement at an early stage of the proceedings or had cooperated with law enforcement officers when defendant made an inculpatory statement following the killing. State v. Bacon, There was no prejudice in a resentencing hearing for first-degree murder where the prosecutor argued that the jury should refrain from finding that defendant had no history of violent behavior by referring to a defense psychiatrist's testimony. The trial court cautioned the jurors to consider that evidence only for the purpose of explaining or supporting the psychiatrist's opinion; moreover, the jury found the mitigating circumstance. Ibid. 477 (NCI4th). There was no prejudicial error in a resentencing hearing for a first-degree murder where a prospective juror was allowed to enter the jury room at a time when it could still have been occupied by other prospective jurors. State v. Bacon, 483 (NCI4th). There was no error in a resentencing for first- degree murder where the court ordered the bailiff to engage in unrecorded communications with the prospective jurors and the trial jury, the clerk also communicated with the jury, but the challenged communications were of an administrative nature, did not relate to the consideration of defendant's guilt, defendant's confrontation rights were not implicated, and defendant's presence would not bear a reasonably substantial relation to his opportunity to defend. State v. Bacon, 584 (NCI4th). The trial court did not err in a cocaine prosecution by denying defendant's motion to suppress physical evidence on the ground that the same evidence had been suppressed in an earlier case against him in federal court where the state of North Carolina was not a party to the federal criminal proceeding, nor was any showing made that the State was in privity with the federal government in prosecuting the defendant on the federal drug charges. State v. Brooks, 680 (NCI4th). Where defendant requested that peremptory instructions be given only for the mitigating circumstances dealing with mental and emotional impairment, the trial court did not err in failing to give peremptory instructions as to other uncontroverted statutory and nonstatutory mitigating circumstances. State v. Skipper, 803 (NCI4th). The Due Process Clause of the Fourteenth Amendment and North Carolina law require that all lesser included offenses charged in the bill of indictment and supported by the evidence be submitted to the jury, and the trial court's erroneous failure in a first-degree murder prosecution to submit the lesser offenses of second-degree murder and voluntary manslaughter entitled defendant to a new trial. State v. Camacho, 818 (NCI4th). There was no plain error in a resentencing hearing for first degree murder from an interested witness instruction where there were several other reasons the two statutory mitigating circumstances noted by defendant might not have been found. State v. Bacon, 819 (NCI4th). The trial court's failure to give an interested witness pattern instruction after having agreed to give the instruction at the charge conference was harmless error where evidence of defendants' guilt was comprehensive and substantial, coming from one of the victims as well as other eyewitnesses, and the court included a reference to interest or bias in the instructions on determining whether to believe a witness. State v. Alexander, 860 (NCI4th). The trial court correctly denied defendant's request to include in the jury charge in a capital sentencing proceeding for two murders an instruction that a life sentence means that defendant may be eligible for parole in twenty years and that defendant could be sentenced to consecutive life sentences so that he would not be eligible for parole for forty years, and when the jury sent a question asking about parole eligibility and concurrent sentences, the court properly instructed the jury that eligibility for parole is not a proper matter for the jury and that the jury should determine the question as though life in prison means exactly what the statute says. State v. Skipper, 1038 (NCI4th). A case was remanded for amendment of the judgment sheet where the judgment sheet for first-degree murder also listed a conviction for discharging a firearm into occupied property and imposed a sentence of life imprisonment with no further reference to the firearm charge. State v. Alexander, 1068 (NCI4th). Defendant's due process rights were not violated when the trial court in a capital sentencing proceeding refused to permit defendant to ask a witness on redirect (1) if he was telling the truth, and (2) for what church he was a minister. State v. Skipper, 1298 (NCI4th). The North Carolina death penalty statute is not unconstitutional. State v. Skipper, 1318 (NCI4th). The trial court did not err by denying defendant's request that the court give specific instructions about the procedures involved in a capital punishment proceeding prior to the beginning of jury selection. State v. Skipper, 1322 (NCI4th). The trial court correctly denied the defendant's request to include in the jury charge in a capital sentencing proceeding for two murders an instruction that a life sentence means that defendant may be eligible for parole in twenty years and that defendant could be sentenced to consecutive life sentences so that he would not be eligible for parole for forty years, and when the jury sent out a question asking about parole eligibility and concurrent sentences, the court properly instructed the jury that eligibility for parole is not a proper matter for the jury and that the jury should determine the question as though life imprisonment means exactly what the statute says. State v. Skipper, An instruction on parole eligibility was not necessary as mitigating evidence in light of the prosecutor's argument stressing defendant's potential for future dangerousness because parole eligibility is not mitigating. Ibid. The trial court did not err in a resentencing hearing for first-degree murder by not instructing the jury concerning parole eligibility where defendant argued that the instruction should have been given because of the reference to parole in questions directed to character witnesses. State v. Bacon, 1323 (NCI4th). The statement in the trial court's instructions on the statutory mitigating circumstance of age that "the mitigating effect of the age of the defendant is for you to determine" did not allow the jury to refuse to consider the evidence about age as a mitigating circumstance in violation of a U.S. Supreme Court decision. State v. Skipper, The trial court's instructions which permitted the jury to consider whether nonstatutory mitigating circumstances in fact had mitigating value were not erroneous. Ibid. The trial court did not err by failing to instruct the jury that once one juror finds a mitigating circumstance to exist, all jurors must consider that circumstance when reaching their sentencing decision. Ibid. The trial court's instruction that each juror "may" consider mitigating circumstances that juror found to exist when weighing the aggravating and mitigating circumstances did not allow some jurors to disregard relevant mitigating evidence they had earlier found to exist. Ibid. There was no prejudicial error in a resentencing hearing for a first-degree murder where the court instructed the jury that it must find a nonstatutory mitigating circumstance to have mitigating value before finding the existence of that circumstance. State v. Bacon, The trial court did not commit error when resentencing defendant for a first-degree murder in its instructions concerning the jury's duty to weigh the aggravating and mitigating factors. State v. Bacon, 1326 (NCI4th). The trial court did not err by instructing the jury in a capital sentencing proceeding that defendant had the burden of proving the mitigating circumstances by a preponderance of the evidence. State v. Skipper, 1327 (NCI4th). The Pattern Jury Instruction imposing a duty upon the jury to return death if the mitigating circumstances are insufficient to outweigh the aggravating circumstances is not unconstitutional. State v. Skipper, 1341 (NCI4th). The trial court did not err at a resentencing for first-degree murder by submitting the aggravating circumstance of pecuniary gain where the evidence was sufficient to show that defendant knew of insurance covering the victim's life. State v. Bacon, The trial court did not commit plain error in a first- degree murder resentencing hearing in its instruction on the aggravating circumstance of pecuniary gain where the instruction given was in accordance with the Pattern Jury Instruction except for the sentence "the defendant expected to share in the life insurance proceeds on the life of the victim." Ibid. The trial court did not err in a resentencing for first-degree murder by submitting the aggravating circumstance of pecuniary gain. State v. Bacon, 1347 (NCI4th). The trial court properly submitted the course of conduct aggravating circumstance to the jury in a capital sentencing proceeding for two murders where the evidence showed that defendant pulled a semiautomatic rifle from under the seat of his truck and fired multiple shots at the female victim, said "you too," and then shot the male victim. State v. Skipper, 1348 (NCI4th). The trial court's instructions defining mitigating circumstances in a capital sentencing proceeding did not restrict the jury from considering any evidence that may have lessened defendant's sentence, whether it was evidence that was directly based on defendant's character or evidence that related to the actual murders. State v. Skipper, The trial court did not err when resentencing defendant for first-degree murder by refusing to instruct the jury on sympathy. State v. Bacon, 1355 (NCI4th). The trial court did not err by failing to submit the mitigating circumstance that defendant had no significant history of prior criminal activity where the State presented evidence that defendant had been convicted of assault with a deadly weapon inflicting serious bodily injury in 1978, 1982, and 1984. State v. Skipper, 1357 (NCI4th). The trial court did not commit plain error during a resentencing hearing for a first-degree murder in its instructions on mental or emotional disturbance where defendant contended that the trial judge should have included in its instruction a defense psychiatrist's testimony regarding defendant's psychological makeup, conjoined with the needs of the victim's husband and that of their relationship. State v. Bacon, 1360 (NCI4th). The trial court did not commit plain error during a resentencing hearing for a first-degree murder in its instructions on impaired capacity where defendant contended that the trial judge should have included in its instruction a defense psychiatrist's testimony regarding defendant's psychological makeup, conjoined with the needs of the victim's husband and that of their relationship. State v. Bacon, 1362 (NCI4th). The statement in the trial court's instructions on the statutory mitigating circumstance of age that "the mitigating effect of the age of the defendant is for you to determine" did not allow the jury to refuse to consider the evidence about age as a mitigating circumstance in violation of a U.S. Supreme Court decision. State v. Skipper, 1363 (NCI4th). The trial court did not err by failing to submit separately each nonstatutory mitigating circumstance requested in writing by defendant where some of the requested circumstances were combined by the trial court on the written recommendation form, and all of the requested circumstances were subsumed by the circumstances submitted. State v. Skipper, The trial court did not err in a resentencing hearing for first-degree murder by refusing to submit the mitigating circumstance that defendant aided in the apprehension of another capital felon, even though the case had been remanded for failure to submit this circumstance, because the State introduced less testimony than at the first hearing and defendant decided not to include additional evidence that might have required submission of this circumstance. State v. Bacon, 1372 (NCI4th). The composition of the "proportionality pool" used in reviewing death sentences reflects post-conviction relief. State v. Bacon, 1373 (NCI4th). A death sentence was not disproportionate where there was only one aggravating circumstance, pecuniary gain. State v. Bacon, Sentences of death imposed upon defendant for two first-degree murders are not excessive or disproportionate where defendant, without provocation, shot the two victims numerous times with a semiautomatic rifle containing fragmentation bullets, left them lying on the ground, and never attempted to get them any help. State v. Skipper, EVIDENCE AND WITNESSES 15 (NCI4th). The trial court properly took notice of and instructed upon federal law in a resentencing hearing for first- degree murder where the court instructed the jury that the provisions of the United States Code are to be accepted as fact. The United States Code Sections are not adjudicative facts. State v. Bacon, 116 (NCI4th). The trial court did not err in a noncapital first-degree murder prosecution by sustaining the State's objection to the admission of evidence which did not point directly or indirectly to the guilt of any other specific person or persons but created, at most, conjecture that defendant was not the perpetrator. State v. Jones, 162 (NCI4th). Testimony that defendant and his friends threatened the State's principal witness and warned him not to testify was relevant to show defendant's awareness of his guilt. State v. Mason, 179 (NCI4th). The trial court in a murder prosecution properly admitted evidence of the killing of a member of defendant's "family" called the Pimps where such killing was a central and critical fact in the explanation of the sequence of events and motive for the murder in the present case. State v. Mason, 221 (NCI4th). Evidence that defendant was armed with a shotgun at the time of his arrest and that he was hesitant to submit to arrest for a murder committed less than a week before was relevant to show defendant's knowledge of his own guilt. State v. Mason, 729 (NCI4th). There was no prejudicial error in a first-degree murder prosecution in the admission of testimony that an "insurance paper" was found among the victim's wife's effects after the murder listing her as the beneficiary. State v. Bacon, 755 (NCI4th). Any error in admitting evidence in a prosecution for burglary, kidnapping and robbery about defendant having previously stolen checks could not have been prejudicial where defendant had just elicited the same evidence. State v. Johnson, 876 (NCI4th). The trial court did not err in a noncapital first-degree murder prosecution by admitting testimony that the victim had said before her death that defendant was "very, very jealous," that "she was thinking about breaking up with him," and that she was "tired of his junk." State v. Jones, 1079 (NCI4th). There was no prejudicial error in a first- degree murder prosecution from the trial court's denial of defendant's request for an instruction where defendant specifically argued that the tendered instruction was necessary because of the State's repeated references to his exercise of his right to counsel and his refusal to submit to a polygraph test or to undergo hypnosis. State v. Jones, 1082 (NCI4th). There was no prejudicial error in an assault and murder prosecution where the trial court admitted testimony concerning defendant's exercise of his right to remain silent. State v. Alexander, 1411 (NCI4th). The trial court did not err by permitting the State to offer into evidence at defendant's resentencing for first-degree murder the testimony of two witnesses from the first trial. State v. Bacon , 1629 (NCI4th). The State's introduction of a portion of defense counsel's tape-recorded interview with the State's principal witness in which defense counsel stated, following a discussion of threats to the witness and a statement by the witness that his going home made his mother and grandmother nervous, that "I'm going to be nervous being in court with you" did not reflect upon the substantive aspects of defendant's case and would not necessarily portray defendant's attorney's representation of him as unworthy of serious consideration by the jury. State v. Mason, 1694 (NCI4th). Seven autopsy photographs of the two victims were properly admitted in a first-degree murder prosecution, although it was uncontradicted that the victims were killed by multiple gunshot wounds from a semiautomatic rifle and that defendant was involved in the shooting. State v. Skipper, 2071 (NCI4th). The trial court did not err in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and murder by allowing an officer to testify that a photograph showed small openings that appeared to be buckshot in the assault victim's arm or by allowing the assault victim to testify that photographs of the vehicle he was driving on the night of the murder showed gunshot holes in the vehicle. State v. Alexander, 2227 (NCI4th). The trial court did not abuse its discretion in a noncapital first-degree murder prosecution by admitting a witness to testify as an expert in the field of bullet lead composition. State v. Jones, 2477 (NCI4th). There was no abuse of discretion in a noncapital first-degree murder prosecution where the State requested that defendant's witnesses be sequestered, defendant contended that sequestration should be universal if ordered, and the State was granted an exception for its lead officer under G.S. 8C-1, Rule 615(3). State v. Jones, 2791 (NCI4th). The trial court did not err by refusing to permit defendant to ask a witness on redirect examination in a capital sentencing proceeding whether he was "telling this jury the truth." State v. Skipper, 2873 (NCI4th). The trial court did not err during a resentencing hearing in a first-degree murder prosecution by allowing the district attorney to cross-examine defendant's expert witness as to whether defendant was dangerous where the cross-examination plainly rebutted the evidence in support of the nonstatutory mitigating circumstance concerning the likelihood that defendant would not commit another crime. State v. Bacon, 2906 (NCI4th). The trial court properly excluded a question defendant asked a witness on redirect as to the name of the church for which he was the minister where this question went beyond the scope of cross-examination. State v. Skipper, 2954 (NCI4th). The trial court did not err during a resentencing hearing in a first-degree murder case by allowing the district attorney to cross-examine a defense psychiatrist concerning his compensation. State v. Bacon, 3015 (NCI4th). Where a witnesses admitted on cross-examination by defense counsel that he had been convicted of four counts of common law forgery, the trial court did not err in excluding defendant's question as to the date on which the witness had committed a particular act of forgery. State v. Skipper, HOMICIDE 230 (NCI4th). The trial court did not err in a noncapital first degree murder prosecution by denying defendant's motion to dismiss. State v. Jones, 489 (NCI4th). The trial court's instruction that the jury could infer premeditation and deliberation from circumstances such as "lack of provocation" could not have confused the jury because it did not explain the difference between legal and ordinary provocation. State v. Skipper, The trial court's instruction that "threats" of the defendant may support an inference of premeditation and deliberation, if unsupported by the evidence, was not plain error. Ibid. 550 (NCI4th). When there is a conflict in the evidence regarding whether defendant committed the underlying felony or was lying in wait, all lesser degrees of homicide charged in the indictment and supported by the evidence must be submitted to the jury. State v. Camacho, The Due Process Clause of the Fourteenth Amendment and North Carolina law require that all lesser included offenses charged in the bill of indictment and supported by the evidence be submitted to the jury, and the trial court's erroneous failure in a first-degree murder prosecution to submit the lesser offenses of second-degree murder and voluntary manslaughter entitled defendant to a new trial. Ibid. 552 (NCI4th). The evidence of premeditation and deliberation was not equivocal in a prosecution of defendant for two first- degree murders so as to require the trial court to instruct the jury on second-degree murder, the evidence did not indicate the lack of a bad relationship between the female victim and defendant which would support an instruction on second-degree murder, and evidence of defendant's intoxication was insufficient to support an instruction on second-degree murder. State v. Skipper, 557 (NCI4th). There was a conflict in the evidence as to whether defendant committed a murder by lying in wait where the State's evidence tended to show that defendant hid in the victim's closet and waited for her to return to her room before jumping out of the closet and assaulting her with a hammer, but defendant testified that he was in the victim's room only to retrieve some personal belongings, that he was trying to pick up some tools he had dropped when the victim entered the room and attacked him with a knife, and that during the struggle with the victim he struck her with a hammer. State v. Camacho, In a prosecution for first-degree murder wherein the evidence was conflicting as to whether defendant committed the offense by lying in wait, the trial court should have submitted the lesser offense of second-degree murder to the jury where defendant's evidence tended to show that after the victim assaulted him with a knife, he intentionally beat her with a hammer but did not intend to kill her. Ibid. 562 (NCI4th). In a prosecution for first-degree murder wherein the evidence was conflicting as to whether defendant committed the offense by lying in wait, the jury could find legal provocation by the victim, and the trial court should have submitted the lesser included offense of voluntary manslaughter to the jury, where defendant's evidence tended to show that he became enraged after seeing the victim with another man and after being attacked by the victim with a knife, and that he struck the victim with a hammer. State v. Camacho, 659 (NCI4th). Defendant's due process rights were not violated by his burden of producing evidence that he was so intoxicated that he could not form a premeditated and deliberated intent to kill in order to be entitled to an instruction on the defense of voluntary intoxication. State v. Skipper, 669 (NCI4th). The evidence in a capital trial was insufficient to require an instruction on voluntary intoxication where it showed only that defendant had been drinking for some time during the day of the murder and that he did not want to drive because he had been drinking. State v. Skipper, JUDGMENTS 43 (NCI4th). The trial court had jurisdiction under G.S. 7A- 47.1 and Rule of Civil Procedure 6(c) to enter an order dismissing plaintiffs' complaint out of session without the consent of the parties since the order did not require a jury and was signed and entered in the proper county and proper judicial district. Capital Outdoor Advertising v. City of Raleigh, JURY 103 (NCI4th). The trial court did not err in denying defendant's request for individual voir dire and sequestration of prospective jurors in a capital trial. State v. Skipper, 123 (NCI4th). The trial court did not abuse its discretion in sustaining the State's objection to defendant's question to a prospective juror as to whether she felt "that a person should always be given the death penalty if he has a previous criminal record and has been convicted of first-degree murder." State v. Skipper, The trial court did not err by refusing to permit defendant to ask prospective jurors in a capital case whether they could "consider" age, mental impairment or retardation, and other specific mitigating circumstances in reaching a decision, since the questions were an impermissible attempt to stake out the jurors. Ibid. 141 (NCI4th). The trial court did not err in refusing to permit defendant to question prospective jurors in a capital trial about their views on the meaning of life imprisonment and the possibility of parole. State v. Skipper, The trial court did not err in a resentencing hearing for a first-degree murder by refusing to allow defendant to examine prospective jurors concerning their views on parole or to inquire whether they had any misconceptions concerning parole eligibility of persons convicted of first-degree murder. State v. Bacon, 183 (NCI4th). The trial court did not err in a first-degree murder prosecution by sustaining the challenge of prospective jurors for cause. State v. Bacon, 194 (NCI4th). The trial judge did not act impartially in favor of the State in determining challenges for cause of prospective jurors in a capital trial based on their capital punishment beliefs by the manner in which he questioned a juror who gave equivocal answers about her beliefs or by asking jurors being questioned by defendant if they could follow the law as given to them. State v. Skipper, 226 (NCI4th). The trial court did not err by refusing to permit defendant to attempt to rehabilitate a juror who gave equivocal answers about her death penalty views and then, following the prosecutor's explanation about the procedure that must be followed in determining a sentence of death, affirmatively responded three times that she would be substantially impaired in following the law because of her beliefs. State v. Skipper, The trial court did not err during a resentencing hearing for a first-degree murder by not allowing defense counsel to rehabilitate prospective jurors. State v. Bacon, 227 (NCI4th). While a prospective juror's answers about her death penalty views were not entirely unequivocal, the trial court did not err by excusing the juror for cause where her responses revealed that her views on the death penalty would substantially impair her ability to follow the instructions of the court as they related to her duty as a juror. State v. Skipper, 243 (NCI4th). The trial court did not err in a first-degree murder prosecution by sustaining the peremptory challenge of a prospective juror. State v. Bacon, 261 (NCI4th). It was not unconstitutional to permit the prosecutor in a capital case to peremptorily challenge jurors who expressed reservations about the death penalty. State v. Skipper, 262 (NCI4th). The trial court did not err in a resentencing hearing for first-degree murder by allowing the State to peremptorily challenge jurors who were not subject to a challenge for cause but who expressed reservations about the death penalty. State v. Bacon, KIDNAPPING 18 (NCI4th). The trial court did not err by refusing to dismiss two kidnapping charges where there was ample evidence of restraint not inherent in the armed robbery. State v. Johnson, LIMITATIONS, REPOSE, AND LACHES 86 (NCI4th). Plaintiff billboard companies' 42 U.S.C. 1983 claim contesting the constitutionality of a city's outdoor advertising sign ordinance accrued on the effective date of the ordinance, and plaintiffs' action filed five and one-half years after the effective date was barred by both the nine-month statute of limitations for an action contesting the validity of any zoning ordinance contained in G.S. 1-54.1 and 160A-314.1, and by the three-year personal injury statute of limitations set forth in G.S. 1-52(5). Capital Outdoor Advertising v. City of Raleigh, ROBBERY 18 (NCI4th). The trial court did not err in failing to instruct on common-law robbery in an armed robbery prosecution where defendant argued that there was no evidence that anyone threatened the life of Mrs. Ross, but, under the circumstances, a pry bar would be perceived by a four-foot, eleven-inch-tall woman as a dangerous, life-threatening weapon. State v. Johnson, 118 (NCI4th). The trial court did not err in an armed robbery prosecution by denying defendant's request for an instruction on common-law robbery where the victim testified that he was awakened by a man holding what appeared to be a crowbar and threatening to kill him and other evidence showed that the man was defendant and that he possessed a lug wrench. State v. Johnson, SEARCHES AND SEIZURES 49 (NCI4th). All of the physical evidence discovered during a search of defendant's car was admissible against defendant in a cocaine prosecution where an SBI agent approached the defendant's car and looked into the interior, using his flashlight; upon viewing an empty holster next to the defendant, the agent asked the defendant where his gun was; defendant told the agent that he was sitting on the gun; and the agent then had probable cause to arrest the defendant for carrying a concealed weapon and, having the requisite probable cause to arrest the defendant, was fully justified in searching the entire interior of the defendant's car during a search incident to that arrest. State v. Brooks, 80 (NCI4th). An SBI agent's initial encounter with a defendant who was eventually indicted on cocaine charges did not violate the defendant's Fourth Amendment right against unreasonable searches and seizures where the evidence before the trial court tended to show that the agent approached the defendant's vehicle and offered a greeting; no one is protected by the Constitution against the mere approach of police officers in a public place. State v. Brooks, 82 (NCI4th). An SBI agent was not required to give a defendant eventually indicted on cocaine charges Miranda warnings before asking the location of a gun where the agent did not "stop" the defendant, but merely walked up to the defendant, who was sitting in his vehicle, shined a light into the interior, and, upon seeing the empty holster on the seat beside the defendant, acted quite reasonably and properly in asking the defendant about the location of defendant's gun. State v. Brooks, UTILITIES 286 (NCI4th). In an order of the Utilities Commission establishing a natural gas expansion fund, findings concerning economic development and the benefits to existing customers in unserved areas were supported by the evidence. Although there may have been contrary evidence before the Commission, substantial evidence is not uncontradicted evidence. State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., ZONING 24 (NCI4th). Plaintiff billboard companies' 42 U.S.C. 1983 claim contesting the constitutionality of a city's outdoor advertising sign ordinance accrued on the effective date of the ordinance, and plaintiffs' action filed five and one-half years after the effective date was barred by both the nine-month statute of limitations for an action contesting the validity of any zoning ordinance contained in G.S. 1-54.1 and 160A-314.1, and by the three-year personal injury statute of limitations set forth in G.S. 1-52(5). Capital Outdoor Advertising v. City of Raleigh,