CONTENTS 17 June 1994 APPEAL AND ERROR 536 (NCI4th). A contention on appeal that the Superior Court did not follow the mandate of the Court of Appeals in issuing an order that an attorney should appear and show cause why he should not be disciplined was overruled. In re Delk, ASSAULT AND BATTERY 14 (NCI4th). Defendant was not entitled to a new trial with regard to his conviction for assault with a deadly weapon with intent to kill inflicting serious injury based on the trial court's instructions on the doctrine of transferred intent. State v. Morston, 23 (NCI4th). Defendant was properly convicted of, and punished for, assault with a deadly weapon with intent to kill inflicting serious injury where the assault victim was struck by bullets in her living room when her husband was shot and killed when he answered the door to their home. State v. Morston, 81 (NCI4th). The trial court did not err by failing to dismiss a charge of discharging a firearm into occupied property or arrest judgment where defendant fired at a detective as the detective answered his door and bullets also struck the detective's wife inside the house. State v. Morston, ATTORNEYS AT LAW 67 (NCI4th). Respondent, an attorney disbarred after being convicted of extortion and conspiracy to commit extortion, correctly argued that the Superior Court judge who signed an order of disbarment originally entered by another judge incorrectly found the effective date of the order to be thirty days from the first order. In re Delk, 71 (NCI4th). There was no error in respondent's disbarment by a judge following his conviction for extortion and conspiracy; the Superior Court has the inherent power to discipline members of the bar, including requiring attorneys to appear and answer charges based on the records of the court. In re Delk, 81 (NCI4th). The trial court made adequate findings of fact and conclusions of law to support the order disbarring respondent where respondent contends that the order states no basis for the application of G.S. 84-28 to a disbarment by a court, but the statute does not limit its penalty to cases brought by the State Bar. In re Delk, 83 (NCI4th). There was no error in the procedure by which respondent-attorney was disbarred following an extortion and conspiracy conviction where adequate notice was given to respondent to comply with due process. The court proceeded against respondent using its inherent power to discipline attorneys and was not bound by the rules of the State Bar. In re Delk, 89 (NCI4th). Although defendant argues that G.S. 84-28(d) prohibits disbarment while the criminal charge for which the person is to be disbarred is on appeal, there was more than one order of disbarment in this case. This appeal is from a disbarment which occurred after the Court of Appeals had found no error in the respondent's conviction. In re Delk, CONSTITUTIONAL LAW 166 (NCI4th). The test set forth in Teague v. Lane, 489 U.S. 288, is adopted as the test of retroactivity for new federal constitutional rules of criminal procedure on state collateral review. State v. Zuniga, 183 (NCI4th). Defendant was properly convicted of, and punished for, both conspiracy to commit first-degree murder and first-degree murder; the crime of conspiracy is a separate offense from the accomplishment or attempt to accomplish the intended result. State v. Morston, 290 (NCI4th). An attorney's statement to a deputy sheriff that defendant had come into his office to turn himself in for a shooting did not constitute ineffective assistance of counsel where the statement was made by direct authorization of defendant and did not violate the attorney-client privilege. State v. McIntosh, 318 (NCI4th). Effectiveness of assistance of counsel on appeal generally An appellant's attorney should ask the appellate court to search the record for errors pursuant to Anders v. California only if he believes the whole appeal is without merit. State v. Mason, 349 (NCI4th). There was no prejudicial error in a first-degree murder prosecution where a State's witness who had been present at the murder was allowed to describe the murder but invoke the Fifth Amendment testimonial privilege in response to questions on cross-examination concerning his drug dealing, but defendant was able to get his contentions before the jury. State v. Ray, 354 (NCI4th). There was no prejudicial error in a first-degree murder prosecution where a State's witness who had been present at the murder was allowed to describe the murder but invoke the Fifth Amendment testimonial privilege in response to questions on cross-examination concerning his drug dealing. Although defendant was able to get his contentions before the jury, drug dealing was more than a collateral matter that went only to the credibility of this witness and the trial court should have either required the witness to answer questions or have stricken all or part of his direct testimony after allowing him to assert the privilege. State v. Ray, CRIMINAL LAW 106 (NCI4th). The trial court did not err in a first-degree murder prosecution by denying defendant's request for a list of the State's witnesses prior to jury selection. State v. Godwin, 109 (NCI4th). The trial court did not err in a first-degree murder prosecution by ordering reciprocal discovery by defendant within two weeks after the State met its discovery deadline where the State sought to obtain from defendant any psychiatric evidence which defendant intended to offer. State v. Godwin, 113 (NCI4th). The trial court did not err in a first-degree murder prosecution by admitting testimony regarding a statement made by defendant to a coworker where defendant had made a motion for discovery under G.S. 15A-903, the statement had not been furnished to defendant, the trial court conducted an extensive voir dire, and the witness admitted that he had not made the specific statement in question prior to his testimony. State v. Godwin, 425 (NCI4th). There was no error in a prosecution for first-degree murder and conspiracy where defendant contended that a reference in the prosecutor's closing argument to a witness not called tended to shift the burden of producing evidence to the defendant, but the prosecutor at worst merely commented on the defendant's failure to produce a witness to refute the State's case. State v. Morston, 426 (NCI4th). The trial court did not err in a first-degree murder prosecution by denying defendant's motion for a mistrial, which had been based on a reference by the prosecutor to defendant's exercise of his right to remain silent following his arrest. State v. Morton, 438 (NCI4th). It was improper for the prosecutor to argue to the jury that defendant was a liar and that he had lied to his girlfriend and to the jury, but this error was not prejudicial. State v. Sexton, 440 (NCI4th). There was no error in a first-degree murder prosecution where the prosecutor stated to the jury in his closing argument that a state's witness who was an accomplice and who had pled guilty and testified was facing a "life plus" sentence or a sentence of "life plus 30 years." State v. Morston, 442 (NCI4th). There was no error in a prosecution for first-degree murder and conspiracy where defendant contended that the prosecutor argued to the effect that the jurors were accountable to the police, the witnesses, the community, and society in general, but the argument instead contended that the jurors had an obligation to convict based upon evidence introduced at trial which had been discovered due to the proper performance of law enforcement officers and witnesses. State v. Morston, 445 (NCI4th). The prosecutor did not impermissibly personalize the victim's ordeal by arguing to the jury in a murder, kidnapping, rape and sexual offense case that "it would defy human nature for [the victim] to have volunteered to assist defendant and put herself in a position to have a consensual conversation with him." State v. Sexton, 447 (NCI4th). Any error in the prosecutor's reference to the rights of the victim and her family in his jury argument in a capital sentencing proceeding was de minimis, and the trial court did not err by failing to intervene ex mero motu. State v. Sexton, There was no error in a prosecution for first-degree murder and conspiracy in the prosecutor's argument to the jury concerning the impact of the crimes on the victim's family and the community. State v. Morston, 465 (NCI4th). The prosecutor's closing argument in a first-degree murder case about the irrelevancy of any anger or emotion by defendant was not a misstatement of the law of premeditation and deliberation but was a proper argument urging the jury not to return a verdict of guilty of second-degree murder. State v. Sexton, Assuming the prosecutor's definition of reasonable doubt in his jury argument was erroneous to the extent that it required an improperly high degree of doubt for acquittal, the trial court did not err by failing to immediately correct this erroneous definition where the court followed the prosecutor's argument with proper instructions correctly defining the term "reasonable doubt." State v. Jones, 466 (NCI4th). The prosecutor did not improperly suggest that defense counsel had orchestrated a slander where his mention of slander in his jury argument referred to defendant's consent defense as a defense and not to the actions of defense counsel. State v. Sexton, 734 (NCI4th). The trial court's reference to the prosecutrix as the victim throughout the charge was not an expression of opinion by the court that defendant was guilty. State v. McCarroll, 736 (NCI4th). There was no plain error in a prosecution for first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into occupied property where the court repeated its instruction on flight once for each of the three offenses. State v McDougald, 793 (NCI4th). The trial court did not err in an assault prosecution in its instructions on acting in concert where the court merely explained to the jury that it could convict defendant if he acted, alone or with one or more persons, to commit the crime and he intended that the crime be committed. State v. McDougald, 831 (NCI4th). The trial court did not err in a first-degree murder and conspiracy prosecution by denying defendant's request for a special instruction on accomplice testimony where the court instructed on accomplice testimony in accord with the appropriate pattern jury instruction. State v. Morston, 904 (NCI4th). The trial court did not deny defendant the right to a unanimous verdict by instructing the jury that it could find her guilty of indecent liberties based on any "immoral, improper or indecent touching or act by the defendant upon the child or an inducement by the defendant of an immoral or indecent touching by the child." State v. McCarroll, 956 (NCI4th). The test set forth in Teague v. Lane, 489 U.S. 288, is adopted as the test of retroactivity for new federal constitutional rules of criminal procedure on state collateral review. State v. Zuniga, 1098 (NCI4th). The Court of Appeals erred in holding that, because evidence of the victim's age was necessary to establish the offense of taking indecent liberties, such evidence should not have been used as proof of an aggravating factor; where age is an element of the offense, if the evidence, by its greater weight, shows that the age of the victim caused the victim to be more vulnerable to the crime than he otherwise would have been, the trial court can properly find the statutory aggravating factor based on age. State v. Farlow, The Court of Appeals erred in its application of the Fair Sentencing Act by holding that the trial court erred in aggravating a sentence for second-degree sexual offense based on the victim's age (11), which was an element of the joined offense of indecent liberties. Ibid. The trial court erred when sentencing defendant for assault with a deadly weapon with intent to kill inflicting serious injury and discharging a firearm into occupied property by improperly aggravating these offenses with evidence the State had previously used to prove an element of the offenses. State v. Morston, 1100 (NCI4th). The trial court erred when sentencing defendant for conspiracy to commit murder by finding in aggravation that "[t]he offense was committed to disrupt the lawful exercise of a governmental function or the enforcement of laws" and that "[t]he offense was committed to hinder the lawful exercise of a governmental function or the enforcement of laws" based on the same item of evidence, that defendant had conspired to murder a law enforcement officer who was interfering with the drug trade. State v. Morston, 1120 (NCI4th). The trial court did not err when sentencing defendant for indecent liberties by finding the nonstatutory aggravating factor that the victim suffered severe mental and emotional injury in excess of that usually associated with offenses of that nature. State v. Farlow, 1125 (NCI4th). The trial court did not err when sentencing defendant for indecent liberties by finding the nonstatutory aggravating factor that defendant engaged in a course or pattern of conduct extending over a period of many years, including the commission of sexual offenses against very young children. State v. Farlow, 1133 (NCI4th). A letter written by the female defendant to the male defendant and her minor daughter was sufficient evidence to support the trial court's finding as an aggravating factor for crime against nature and sexual activity by a substitute parent that the female defendant induced others to participate in the commission of the offenses. State v. McCarroll, 1162 (NCI4th). The Court of Appeals erred in holding that, because evidence of the victim's age was necessary to establish the offense of taking indecent liberties, such evidence should not have been used as proof of an aggravating factor; where age is an element of the offense, if the evidence, by its greater weight, shows that the age of the victim caused the victim to be more vulnerable to the crime than he otherwise would have been, the trial court can properly find the statutory aggravating factor based on age. State v. Farlow, The Court of Appeals erred in its application of the Fair Sentencing Act by holding that the trial court erred in aggravating a sentence for second-degree sexual offense based on the victim's age (11), which was an element of the joined offense of indecent liberties. Ibid. 1177 (NCI4th). The trial court did not err when sentencing defendant for second-degree sexual offenses and indecent liberties by finding as an aggravating factor that defendant took advantage of a position of trust or confidence. State v. Farlow, 1302 (NCI4th). The trial court in a capital trial did not err by denying defense counsel's motion to withdraw, or in the alternative to select a new jury after the guilty verdicts, on the ground that the jurors' rejection of the defense theory and counsel's role in presenting it would have precluded their rational consideration of evidence submitted in mitigation. State v. Sexton, 1309 (NCI4th). Defendant's constitutional rights were not violated in a capital sentencing proceeding for the first-degree murder of a kidnapping and rape victim by the admission of evidence of the victim's character for marital fidelity when all of the evidence in the guilt-innocence phase was resubmitted to the jury. State v. Sexton, 1343 (NCI4th). The "especially heinous, atrocious, or cruel" aggravating circumstance for the capital crime of first-degree murder is constitutional on its face and as applied in this case. State v. Sexton, 1344 (NCI4th). The trial court did not err by submitting the especially heinous, atrocious, or cruel aggravating circumstance to the jury in a capital sentencing hearing because the evidence supported a finding that the murder, committed by ligature strangulation, was physically agonizing to the victim and involved psychological terror not normally present in a first-degree murder. State v. Sexton, 1352 (NCI4th). The decision of McKoy v. North Carolina, which invalidated the unanimity requirement for finding mitigating circumstances in a capital sentencing proceeding, is to be applied retroactively on state post-conviction review to capital cases which became final before McKoy was decided. State v. Zuniga, 1355 (NCI4th). The trial court did not err by failing to submit to the jury in a capital sentencing proceeding the mitigating circumstance that defendant had no significant history of prior criminal activity where the evidence showed that defendant had been convicted of assault on a female by choking her less than a year before the strangulation of the victim in this case. State v. Sexton, The trial court erred when sentencing defendant for a first-degree murder committed in 1979 by admitting convictions in 1986 as relevant to the mitigating circumstance of no significant history of prior criminal activity; "history of prior criminal activity" in G.S. 15A-2000(f)(1) pertains only to that criminal activity committed before the murder. State v. Coffey, 1373 (NCI4th). A sentence of death imposed upon defendant for first-degree murder was not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, where defendant brutally strangled the random victim in the course of a kidnapping, rape, and sexual offense, and defendant was convicted upon theories of both premeditation and deliberation and felony murder. State v. Sexton, 1442 (NCI4th). Defendant was entitled under G.S. 15-196.1 to credit for time he was incarcerated as a condition of special probation when his probation was revoked and the suspended sentence activated. State v. Farris, DIVORCE AND SEPARATION 155 (NCI4th). The trial court in an equitable distribution proceeding must make ultimate findings of fact as to whether the total post-separation appreciation in the value of marital property is active or passive. Smith v. Smith, 172 (NCI4th). If an equitable distribution claim is properly asserted by the filing of an action or a counterclaim and is not voluntarily dismissed pursuant to Rule 41(a)(1) until after a judgment of absolute divorce is entered, a new action based on that claim may be filed within the one-year period provided by Rule 41(a)(1). Stegall v. Stegall, 215 (NCI4th). If an alimony claim is properly asserted by the filing of an action or a counterclaim and is not voluntarily dismissed pursuant to Rule 41(a)(1) until after a judgment of absolute divorce is entered, a new action based on that claim may be filed within the one-year period provided by Rule 41(a)(1). Stegall v. Stegall, EVIDENCE AND WITNESSES 23 (NCI4th). Where a defendant on trial for murder, kidnapping, rape and sexual offense testified that the victim stated that she wanted to cheat on her husband and was the instigator of consensual sexual acts, including oral sex, rebuttal testimony by the victim's co-workers that the victim was not flirtatious and had a reputation for marital fidelity and by her husband that to his knowledge she had never cheated on him and had an aversion to oral sex did not violate the rape shield statute. State v. Sexton, 132 (NCI4th). Assuming that the trial court in a prosecution for rape and other sexual offenses allegedly committed by a mother and her boyfriend against the mother's daughter erred by excluding under Rule 412 testimony by the victim's brother tending to show that the victim had falsely stated that she had had oral sex with her brother, this error was harmless beyond a reasonable doubt. State v. McCarroll, 162 (NCI4th). The trial court did not err in a first-degree murder prosecution by admitting evidence of threats defendant made during an escape from jail. State v McDougald, 264 (NCI4th). Where the defendant in a murder, kidnapping, rape and sexual offense trial testified not only that the victim was the instigator of consensual sexual acts but also that the victim stated that she wanted to cheat on her husband, defendant's attack on the victim's character for marital fidelity went beyond his consent defense and opened the door to the admission of rebuttal evidence about the victim's general good moral character, devotion to family, and reputation for marital fidelity. State v. Sexton, 334 (NCI4th). In a prosecution for first-degree murder committed by choking the victim, evidence that defendant had recently choked another victim was relevant to show his intent. State v. Sexton, 541 (NCI4th). The trial court did not err in a first-degree murder prosecution by allowing the State to introduce evidence of defendant's escape from the Hoke County Jail. State v McDougald, 666 (NCI4th). Defendant's failure to object at trial to the admission of his pretrial statement to a detective waived any right to assign admission of that statement as error on appeal where defendant made a tactical decision to let the statement come in without objection because it tended to bolster his defense of consent and his trial testimony. State v. Sexton, 727 (NCI4th). Any error in the admission of testimony concerning a prior rape and conviction in a prosecution for first-degree rape, first-degree sexual offense, and kidnapping was not prejudicial where the evidence against defendant was overwhelming. State v. Sneeden, 870 (NCI4th). The trial court did not err in a prosecution for first-degree murder and conspiracy by admitting testimony concerning statements made in defendant's presence from a witness who was present but did not participate and from a woman who gave the participants a ride afterwards. State v. Morston, 1064 (NCI4th). There was no plain error in a first-degree murder prosecution in the trial court's instruction on flight where, except for that portion of the instruction informing the jury that "an escape from custody constitutes evidence of flight," the instruction is identical to the appropriate pattern jury instruction and that additional portion is a correct statement of the law. State v McDougald, 1218 (NCI4th). The trial court properly admitted defendant's inculpatory statements in a murder case even if they were the fruit of an attorney's statement to a deputy sheriff that defendant had come into his office to turn himself in for a shooting where the attorney did exactly what defendant requested and no confidential information was disclosed. State v. McIntosh, 1693 (NCI4th). An enlarged photograph of the victim's naked body taken at the crime scene was properly admitted in a murder, kidnapping, and rape trial to illustrate one officer's testimony about the location of defendant's hairs recovered from the victim's body and to illustrate a second officer's testimony about body areas from which he took swabs. State v. Sexton, 2171 (NCI4th). The trial court erred in a sentencing hearing for the first-degree murder of a ten year old girl in 1979 by allowing the State to cross-examine a defense psychiatrist and psychologist concerning indecent liberties convictions in 1986 where the experts had used the convictions as part of the basis for a diagnosis of pedophilia and PTSD. State v. Coffey, 2284 (NCI4th). The trial court did not err during the guilt phase of a first-degree murder prosecution by overruling defendant's objections to testimony from the medical examiner about the pain the victim would have experienced. State v. Morston, 2636 (NCI4th). Where the evidence in a murder case showed that defendant consulted with an attorney solely to facilitate defendant's safe surrender to the authorities, the attorney-client privilege was not violated by the attorney's statement to a deputy sheriff that defendant had come into his office to turn himself in for a shooting. State v. McIntosh, 2642 (NCI4th). Any error was not prejudicial where defendant was charged with the first-degree murder of a detective; an attorney who had initially represented another participant in the conspiracy and murder testified as to a conversation he had had with his client; the State introduced that testimony to corroborate the testimony of the client, who had been allowed to plead guilty to second-degree murder in return for his testimony; the attorney indicated on cross-examination that he had authority from his client to testify only as to what the client had told him about the murder and invoked attorney-client privilege as to whether the benefits of a deal with the State had been discussed; and the client had already testified that he had been permitted to plead guilty to second-degree murder and conspiracy in exchange for his testimony. State v. Morston, 2889 (NCI4th). Cross-examination of defendant as to whether he had a driver's license, graduated from high school, or had consumed drugs at the time of a kidnapping, rape, and murder was relevant to show that defendant was a person of normal intelligence who was clearheaded at the time of the crimes. State v. Sexton, 2973 (NCI4th). The trial court erred in allowing the State to cross-examine the female defendant as to whether she had an affair with a man who the victim said had previously molested her because this evidence was not probative of the witness's truthfulness or untruthfulness and was not relevant to any element of the crimes for which she was being tried, but this error was not prejudicial. State v. McCarroll, 3015 (NCI4th). In a first-degree murder prosecution in which defendant admitted that he had previously been convicted of assaulting his girlfriend, the prosecutor's cross-examination of defendant as to whether he had choked his girfriend was admissible to show defendant's intent where the murder was committed by choking the victim. State v. Sexton, HOMICIDE 242 (NCI4th). The State's evidence was sufficient to support defendant's conviction of first-degree murder by shooting the victim during an argument over money allegedly owed to defendant by the victim. State v. Mason, 521 (NCI4th). The trial court did not err in a first-degree murder and conspiracy prosecution by not submitting second-degree murder to the jury where the evidence was insufficient to support an instruction by the trial court on voluntary intoxication. State v. Morston, 552 (NCI4th). The trial court did not err in a prosecution for first-degree murder by denying defendant's request to submit second-degree murder to the jury where the evidence tended to show that defendant willingly conspired to murder a detective and the evidence that defendant was the person who actually killed the detective and that he did so by driving to the detective's home and inflicting multiple gunshot wounds after more than ample time and opportunity to consider and reject killing the victim was essentially uncontroverted. State v. Morston, There was no error in a noncapital first-degree murder prosecution where the trial court did not charge the jury on second-degree murder but there was evidence supporting each and every element of first-degree murder. State v. Arrington, INDEMNITY 7 (NCI4th). The trial court properly denied a crossclaim by defendant Church where the YMCA and the Church had entered into a joint venture for the operation of a day care, one of the Church vans used by the day care was involved in an accident, the case was settled within the insurance coverage, and the insurance proceeds were joint venture property. Jones v. Shoji, INSURANCE 530 (NCI4th). The trial court erred in an underinsured motorist case involving workers' compensation by not allowing the insurer to reduce the amount of UIM coverage by the workers' compensation benefits paid to plaintiff where the same insurer provided both coverages. Brantley v. Starling, A provision in an underinsured motorist policy stating that the policy did not apply to the direct or indirect benefit of any insurer under any workers' compensation law did not preclude a reduction in UIM coverage by the amount of workers' compensation benefits paid to plaintiff where the UIM coverage in the policy was not applied to the benefit of the insurer under any workers' compensation law. Ibid. JUDGMENTS 36 (NCI4th). An order requiring an attorney to appear and show cause why he should not be disciplined was sufficient to give the Superior Court of Graham County jurisdiction even though the order was signed in Mecklenburg County. The rule that a judge may not enter an order substantially affecting a right of a party outside the county in which the case is to be heard without the consent of the parties does not apply to show cause orders. In re Delk, 314 (NCI4th). The superior court was not precluded from disbarring respondent where respondent was a licensed attorney, he was convicted of extortion and conspiracy to commit extortion in a trial over which Judge Hyatt presided, Judge Hyatt later entered an order disbarring respondent pursuant to a show cause order, the Court of Appeals vacated the order on jurisdictional grounds, the State Bar requested a second show cause order, Judge Hyatt refused, and defendant contended that Judge Hyatt should have ruled on the question of disbarment when defendant was convicted and that the matter is now res judicata. In re Delk, JUDGES, JUSTICES, AND MAGISTRATES 36 (NCI4th). A district court judge was not guilty of conduct prejudicial to the administration of justice or willful misconduct in office by hearing motions in a domestic relations case after he had previously recused himself on the ground that he could not believe any testimony by the defendant and could not give defendant a fair and impartial hearing, or by investigating defendant's living arrangements to assist him in his determination of visitation with a minor child not represented by counsel. In re Bullock, JURY 96 (NCI4th). The trial court's ruling that counsel would not be permitted to ask any question of a prospective juror that had previously been asked of and answered by the juror violated the provision of G.S. 15A-1214(c) which prohibits the trial court from preventing the prosecution or defense from asking a question of a prospective juror merely because the question had previously been asked by the court, but defendant was not prejudiced by this statutory violation. State v. Jones, 111 (NCI4th). The trial judge in a capital trial did not abuse his discretion in denying defendant's request for individual voir dire when a panel of jurors indicated that they recalled media coverage of the crimes where the trial judge stated that he felt the situation could be handled by proper questions. State v. Sexton, 120 (NCI4th). The trial court did not err in a first-degree murder prosecution by furnishing a list of "improper questions" to both parties during jury selection and directing that none of those questions be asked. State v. Godwin, 141 (NCI4th). The trial court did not err by refusing to permit the defendant in a capital trial to examine prospective jurors about parole eligibility or by refusing to submit to the jury mitigating circumstances relating to parole. State v. Sexton, 215 (NCI4th). The trial court did not err by denying defendant's challenge for cause of a prospective juror who first expressed a predisposition to impose the death penalty but then indicated that he could put aside his leaning toward the death penalty and consider life imprisonment as a punishment. State v. Sexton, 223 (NCI4th). The trial court did not err by allowing the State's challenges for cause of two prospective jurors whose voir dire answers revealed that they were opposed to the death penalty and that their personal convictions would substantially impair the performance of their duties as jurors. State v. Sexton, 260 (NCI4th). There was no purposeful racial discrimination in the prosecutor's peremptory challenges of four black jurors where the prosecutor offered race-neutral reasons for challenging the jurors, and the prosecutor's stated bases for these peremptory challenges did not result in a disproportionate exclusion of blacks. State v. Sexton, KIDNAPPING AND FELONIOUS RESTRAINT 16 (NCI4th). The State's evidence was sufficient to support an inference that defendant forcibly removed a rape and murder victim across a parking lot to her van and then to the murder scene by threats and intimidation and was thus sufficient to support defendant's conviction of first-degree kidnapping. State v. Sexton, 28 (NCI4th). The evidence in a kidnapping case was sufficient to show trickery employed to accomplice removal so as to justify the trial court's instruction that consent obtained by fraud is not consent. State v. Sexton, LIMITATIONS, REPOSE, AND LACHES 15 (NCI4th). The statute of repose for claims involving nonapparent property damage, G.S. 1-52(16), has no application to a claim arising out of an improvement to real property. Forsyth Memorial Hospital v. Armstrong World Industries, 29 (NCI4th). The real property improvement statute of repose, G.S. 1-50(5), governs plaintiffs' claims for negligence, breach of warranty, and willful and wanton misconduct by defendant manufacturer in supplying floor coverings containing asbestos used in the construction of plaintiffs' hospital where plaintiffs alleged that defendant furnished the offending materials to the job site. Forsyth Memorial Hospital v. Armstrong World Industries, The six-year limitation of G.S. 1-50(5)(a) barred plaintiffs' claims against defendant manufacturer for breach of warranty and negligence in furnishing floor coverings containing asbestos that were used in the construction of plaintiffs' hospital. Ibid. 31 (NCI4th). Under G.S. 1-50(5), no statute of repose could be asserted as a defense to a claim of willful and wanton negligence in furnishing floor covering materials containing asbestos for the construction of plaintiffs' hospital. Forsyth Memorial Hospital v. Armstrong World Industries, 33 (NCI4th). Upon installation, vinyl flooring became an improvement to plaintiffs' real property within the meaning of the real property improvement statute of repose, and the phrase "any person furnishing materials" refers to a materialman who furnished materials to the job site either directly to the owner or to a contractor or subcontractor on the job. Forsyth Memorial Hospital v. Armstrong World Industries, RAPE AND ALLIED SEXUAL OFFENSES 132 (NCI4th). The trial court did not deny defendant the right to a unanimous verdict by instructing the jury that it could find her guilty of indecent liberties based on any "immoral, improper or indecent touching or act by the defendant upon the child or an inducement by the defendant of an immoral or indecent touching by the child." State v. McCarroll, SOCIAL SERVICES AND PUBLIC WELFARE 8 (NCI4th). An applicant for food stamp assistance must be notified at least orally when the applicant is not eligible for expedited assistance. Hill v. Bechtel, WORKERS' COMPENSATION 285 (NCI4th). Where an employee qualifies for both permanent partial disability benefits under G.S. 97-31 and permanent total benefits under G.S. 97-29, the legislature intended that the employee have the benefit of the more favorable remedy. Vernon v. Steven L. Mabe Builders, 339 (NCI4th). The Industrial Commission is statutorily required to make a full investigation and determination that a Form 26 compensation agreement is fair and just in order to approve the agreement so as to assure that an employee qualifying for disability compensation under both G.S. 97-29 and G.S. 97-31 have the benefit of the more favorable remedy. State v. Sexton, The Industrial Commission failed to act in a judicial capacity to determine the fairness of a Form 26 compensation agreement for permanent partial disability under G.S. 97-31 where plaintiff's physician rated plaintiff as having a 15% permanent disability of the back and stated that he did not think plaintiff could return to work, plaintiff may have been entitled to permanent total benefits under G.S. 97-29, and an employee of the Industrial Commission claims department simply checked the rating form against the medical report attached thereto, verified the payment information, and approved the agreement. Ibid.