CONTENTS 6 May 1994 BURGLARY AND UNLAWFUL BREAKINGS 43 (NCI4th). A first-degree burglary indictment was sufficient even though it did not specify the felony defendant intended to commit when he entered the victim's apartment. State v. Worsley, 58 (NCI4th). There was sufficient evidence to support submission of first-degree burglary to the jury where there was sufficient evidence to support the jury's finding that defendant attempted to rape the victim. State v. Worsley, CONSTITUTIONAL LAW 228 (NCI4th). There was no double jeopardy in a first-degree murder resentencing where some of the mitigating circumstances found at the original hearing were not found at this hearing. State v. Jones, 371 (NCI4th). The North Carolina death penalty statute is constitutional. State v. Jones, CRIMINAL LAW 425 (NCI4th). There was no error in a sentencing hearing for first-degree murder where the prosecutor argued that defendant did not present a psychiatrist or psychologist to testify in regard to defendant's mental impairment. State v. Jones, There was no error in a sentencing hearing for first-degree murder where defendant contended that he had maintained meaningful relationships while in prison which provided him with guidance and positive support and offered letters in support of that nonstatutory mitigating circumstance, but the prosecutor argued that there were other letters not made available to the jury. Ibid. 436 (NCI4th). The prosecutor's argument in a capital sentencing proceeding that two hours after the murder, defendant was "coming out of a room with a needle in his arm, dancing to the music" was a proper comment on defendant's lack of remorse. State v. Robinson, 438 (NCI4th). A first-degree murder defendant was not denied a fair sentencing hearing by the prosecutor's disparaging references in closing arguments to defendant's status as a model prisoner and to the fact that he was attending college. State v. Green, 442 (NCI4th). The prosecutor did not tell the jurors in a capital sentencing proceeding to decide defendant's punishment based on community sentiment when he explained to the jurors that they were the voice and conscience of the community. State v. Robinson, There was no error in a first-degree murder sentencing hearing where the prosecutor during closing arguments made a reference to the jury as the "voice of the community." State v. Jones, There was no error in a first-degree murder prosecution where the prosecutor argued that the jury must live up to its responsibilities even if that did not feel good. Ibid. A first-degree murder defendant was not denied a fair sentencing hearing where the prosecutor argued that the jury was deciding and weighing factors rather than the sentence of life or death, but also spoke of the difficulty of the decision. State v. Green, 447 (NCI4th). There was no error requiring the trial court to intervene ex mero motu in a first-degree murder hearing where the prosecutor argued that the victims, who had been killed at 6:00 p.m. at a dry cleaner's, had been at the same place "you and I might be." State v. Green, 449 (NCI4th). The prosecutor's closing argument in a capital sentencing proceeding to the effect that defendant's race was not the cause of his criminal behavior and should not serve as an excuse was not an improper racial comment but was only a response to testimony by defendant's expert. State v. Robinson, 452 (NCI4th). The prosecutor's closing argument in a capital sentencing proceeding that defendant's mitigating circumstances can be grouped in categories like "Society made me do it" or "My family made me do it" was not a misstatement of the law of mitigation or a statement of facts not in evidence but was a rebuttal of circumstances supported by defendant's evidence. State v. Robinson, A defendant in a first-degree murder prosecution was not denied a fair capital sentencing hearing where the prosecutor argued to the jury that defendant would "get two for the price of one" if he was given life rather than death for two killings. State v. Green, 455 (NCI4th). Even if the prosecutor's argument to the jury in a capital sentencing proceeding could be construed as an argument about the general deterrent effect of the death penalty, it was not so grossly improper as to warrant ex mero motu intervention by the trial court. State v. Robinson, There was no error in a sentencing hearing for first-degree murder where defendant contended that the dominant theme of the prosecution was that the jury needed to kill the defendant to protect themselves and their loved ones. State v. Jones, 468 (NCI4th). There was no error in a first-degree murder sentencing hearing where the prosecutor belittled the nonstatutory mitigating circumstance that the defendant pled guilty without any prior promises or concessions, thus insuring the prompt and certain application of correctional measures. State v. Jones, There was no error in a first-degree murder sentencing hearing where the prosecutor argued that the jury should not base its decision on its feelings. State v. Jones, 860 (NCI4th). The trial court did not err by refusing to give defendant's requested instruction in a capital sentencing proceeding that "the term 'life imprisonment' means life imprisonment" since such an instruction would unnecessarily present the issue of parole. State v. Robinson, 877 (NCI4th). The trial court did not err when sentencing defendant for first-degree murder where the jury sent a note to the court after deliberations began indicating that one juror had not understood the questions during jury selection and did not believe in capital punishment and the court called the entire jury into the courtroom and told the jury that the matter could not then be addressed and that the jury must continue its deliberations with a view toward reaching a verdict if it could without violence to individual judgment. State v. Green, 878 (NCI4th). The trial court did not err in a sentencing hearing for two first-degree murders where the jury sent the court a note during deliberations asking if the jury decision had to be unanimous on both recommendations and the court instructed the jury that any recommendation they made as to sentencing must be unanimous. State v. Green, 881 (NCI4th). The trial court did not err during jury deliberations at a first-degree murder sentencing hearing where the jury indicated its inability to reach a unanimous recommendation and the court gave an instruction substantially similar to the Allen charge which called the jury's attention to the fact that "[a]ll of us have a considerable amount of time in this case." State v. Green, The trial court did not err in a first-degree murder prosecution in supplemental instructions which defendant contended a reasonable juror would likely interpret as meaning that the law requires unanimity and jurors who are in disagreement are not following the law. Ibid. 931 (NCI4th). The trial court could not consider juror affidavits that the jury's recommendation of the death penalty was the result of erroneous beliefs about defendant's eligibility for parole in the event a life sentence was imposed. State v. Robinson, 951 (NCI4th). The trial court did not err by denying defendant's motion for appropriate relief without an evidentiary hearing. State v. Robinson, 1056 (NCI4th). The trial court did not err in a first-degree murder sentencing hearing by denying defendant's motion for allocution. State v. Green, 1309 (NCI4th). Testimony that a certain bar was a "gay club" and that a man in a group of persons with defendant was a "gay person" was properly admitted in a capital sentencing hearing to corroborate a witness's testimony concerning defendant's activities and location on the night prior to the crime. State v. Robinson, The trial court did not err in a sentencing hearing for a first-degree murder at a convenience store by admitting into evidence a videotape which included audio and video tracks and showed the robbery and shooting. State v. Jones, 1310 (NCI4th). Defendant is precluded from predicating error upon the trial court's sustaining of the State's objection to questions about defendant's father's treatment of defendant's sisters and defendant's wife's comprehension of the nature of a capital sentencing proceeding where defendant made no offer of proof at trial to preserve the answers of the witnesses. State v. Robinson, 1312 (NCI4th). The trial court did not err in a sentencing hearing for first-degree murder by submitting evidence of a prior attempted rape conviction, submitting the aggravating circumstance of a prior felony involving violence, or in its instructions where the State submitted evidence that defendant had been convicted by General Court Martial of attempted rape. State v. Green, 1314 (NCI4th). The trial court did not err in a first-degree murder resentencing by failing to strike plea agreements in which the State accepted guilty pleas to felony murder only. State v. Green, 1316 (NCI4th). The trial court did not err during jury selection for a first-degree murder resentencing hearing by not submitting the statutory mitigating circumstance that defendant had no significant history of prior criminal activity. State v. Jones, 1322 (NCI4th). The trial court did not err when instructing the jury during a first-degree murder resentencing hearing by not instructing the jury as to parole eligibility even though the issue was raised during jury selection and in the prosecutor's closing arguments. State v. Jones, 1323 (NCI4th). The trial court did not err in its instructions in a resentencing hearing for first-degree murder on nonstatutory mitigating circumstances; determining whether there is mitigating value in the evidence remains the province of the jury. State v. Jones, The trial court did not commit plain error in a first-degree murder sentencing hearing when instructing the jury on sympathy and mercy. Ibid. The trial court did not err by instructing the jury in a capital sentencing proceeding that it should find whether each nonstatutory mitigating circumstance existed and then whether that circumstance had mitigating value. State v. Robinson, The trial court did not err in a sentencing hearing for a first-degree murder by instructing the jury that they "may" rather than "must" find mitigating circumstances. State v. Green, The trial court did not err in a first-degree murder resentencing in its instruction regarding mitigating circumstances. State v. Jones, 1325 (NCI4th). The trial court did not err by instructing the jury in Issue Four of a capital sentencing proceeding that "each juror may consider any mitigating circumstance that juror determined to exist by a preponderance of the evidence." State v. Robinson, The trial court's capital sentencing instructions which informed the jury at Issue Three and Issue Four that it "must" weigh any mitigating circumstances it found to exist against the aggravating circumstances and that each juror "may" consider any mitigating circumstances that juror determined to exist did not allow jurors to disregard properly found mitigating circumstances. Ibid. Any error in the trial court's instruction in Issue Three of a capital sentencing proceeding that each juror may consider any mitigating circumstance that the "jury," rather than "juror," determined to exist by a preponderance of the evidence in Issue Two did not preclude an individual juror from considering mitigating evidence that such juror alone found in Issue Two and was harmless. Ibid. There was no error in a first-degree murder sentencing hearing in the court's instruction on nonstatutory mitigating circumstances where the court charged the jury that if it found one or more mitigating circumstances it must consider the aggravating circumstances in connection with any mitigating circumstances found by one or more of them and that, "when making this comparison, each juror may consider any mitigating circumstance or circumstances that juror determines to exist by a preponderance of the evidence." State v. Jones, 1327 (NCI4th). The pattern jury instruction that imposes a duty upon the jury to return a recommendation of death if it finds that the mitigating circumstances are insufficient to outweigh the aggravating circumstances is not unconstitutional. State v. Robinson, The trial court properly instructed the jury in a sentencing hearing for first-degree murder that if they answered Issue Four yes, it would be their duty to recommend the death sentence. State v. Jones, 1337 (NCI4th). The trial court did not err in a sentencing hearing for first-degree murder by submitting evidence of a prior attempted rape conviction, submitting the aggravating circumstance of a prior felony involving violence, or in its instructions where the State submitted evidence that defendant had been convicted by General Court Martial of attempted rape. State v. Green, 1348 (NCI4th). The trial court's instructions defining mitigating circumstance in a capital sentencing proceeding were a correct statement of the law of mitigation and did not preclude the jury from considering any aspect of defendant's character which he may have presented as a basis for a sentence less than death. State v. Robinson, There was no error in a first-degree murder sentencing hearing in the part of the charge which defined a mitigating circumstance where defendant contended that the charge given by the court failed to give him the full benefit of relevant mitigating evidence. State v. Jones, 1352 (NCI4th). The trial court did not err in a resentencing hearing for first-degree murder in its instructions on nonstatutory mitigating circumstances where the instruction did not indicate a requirement of unanimity by the jury on any of the nonstatutory circumstances. State v. Jones, 1355 (NCI4th). The trial court in a capital sentencing proceeding did not err by refusing to submit the statutory mitigating circumstance that defendant had no significant history of prior criminal activity. State v. Robinson, 1363 (NCI4th). The trial court properly refused to allow the jury in a capital sentencing proceeding to consider as mitigation three consecutive sentences totaling eighty years imposed on defendant for crimes arising from the same transaction as the capital crime. State v. Robinson, Defendant was not prejudiced by the trial court's erroneous refusal to submit in a capital sentencing proceeding the mitigating circumstance that "in a structured prison environment, [defendant] is able to conform his behavior to the rules and regulations and performs tasks he is required to perform" where defendant introduced evidence concerning his conduct in prison and the court submitted two other mitigating circumstances dealing with that conduct. Ibid. The trial court did not err in a sentencing hearing for first-degree murder by refusing to allow introduction of or to submit to the jury as a mitigating circumstance the fact that defendant had been sentenced to a total of sixty years in prison on armed robbery and assault charges to which he had pled guilty. State v. Jones, The trial court did not err in a sentencing hearing for first-degree murder by failing to give peremptory instructions on the nonstatutory mitigating circumstance that the defendant had pled guilty to both murder charges. State v. Green, There was no prejudicial error in a sentencing hearing for first-degree murder where the trial court refused to submit the mitigating circumstance that defendant will continue to adjust well to prison life and be a model prisoner. Ibid. The trial court did not err in a first-degree murder sentencing hearing by not submitting the nonstatutory mitigating circumstance that defendant was "a quiet student in school and was not a discipline problem" where it was uncontroverted that defendant was expelled from high school due to fighting and for that reason joined the army. Ibid. The trial court did not err during a sentencing hearing for first-degree murder by failing to submit the nonstatutory mitigating circumstance that defendant did not kill after premeditation and deliberation. Ibid. There was no prejudicial error in a first-degree murder prosecution where the court refused to submit as possible nonstatutory mitigating circumstances that the defendant did not intend to take the life of the victims and did not enter the building where they were killed with the weapon which he used to take their lives. Ibid. The trial court did not err in a resentencing hearing for first-degree murder by refusing to submit the nonstatutory mitigating circumstance that defendant has been confined for a considerable amount of time prior to his sentencing. State v. Jones, 1373 (NCI4th). The aggravating circumstances for a death sentence for a first-degree murder arising from a convenience store robbery were supported by the record, the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, and the sentence was not excessive or disproportionate to the penalty imposed in other first-degree murder cases. State v. Jones, A sentence of death imposed upon defendant for a first-degree murder of a restaurant manager during an armed robbery was not disproportionate to the penalty imposed in similar cases considering the crime and the defendant. State v. Robinson, A death sentence for two murders during a robbery was not disproportionate. State v. Green, DECLARATORY JUDGMENT ACTIONS 5 (NCI4th). Plaintiff hospitals were not precluded from seeking a declaratory judgment of the validity of an Industrial Commission rule pertaining to hospital charges for employees in workers' compensation cases on the ground that they failed to exhaust their administrative remedies. Charlotte-Mecklenburg Hospital Auth. v. N.C. Industrial Comm., 13 (NCI4th). Plaintiff hospitals stated a controversy justiciable under the Declaratory Judgment Act as to the validity of a per diem rule adopted by the Industrial Commission for hospital charges for services rendered to employees in workers' compensation cases and the concomitant repeal of the Blue Cross and Blue Shield of North Carolina rule. Charlotte-Mecklenburg Hospital Auth. v. N.C. Industrial Comm., DIVORCE AND SEPARATION 67 (NCI4th). In order to bar an action for divorce based on one year's separation on the ground that defendant is incurably insane, prior cases will be followed which require that defendant's "mental impairment must be to such an extent that defendant does not understand what he or she is engaged in doing, and the nature and consequences of the act." Scott v. Scott, 68 (NCI4th). The trial court did not err by concluding that defendant failed to prove that she is incurably insane within the meaning of G.S. 50-5.1 so as to require plaintiff to proceed under that statute in order to obtain an absolute divorce from defendant where (1) only one of her medical experts associated with a four-year medical school made any determination of defendant's condition three years prior to the institution of the divorce action, and (2) the evidence supported the trial court's finding that defendant's mental illness has been controllable with medication a majority of the time and she has been able to function in normal daily situations. Scott v. Scott, In order to bar an action for divorce based on one year's separation, defendant bears the burden of persuasion that he or she is incurably insane. Ibid. EVIDENCE AND WITNESSES 1219 (NCI4th). A confession by a defendant in a burglary, rape, and murder prosecution was admissible where defendant had been arrested in his home without a warrant, even assuming that the arrest was illegal, where defendant was fully advised of his rights at the police station. State v. Worsley, 1227 (NCI4th). The Supreme Court declined to reconsider its prior ruling upholding the admission of a second confession following a coerced confession. State v. Jones, 2917 (NCI4th). Assuming that cross-examination of a witness in a capital sentencing proceeding about whether, when he negotiated a plea, he was told the sentence he could have received in this case and whether he was advised that any breach of the law would be a violation of his parole should have been permitted to show bias, defendant was not prejudiced by the exclusion of this testimony where it was made clear that the State had no leverage over the witness to cause him to testify against defendant. State v. Robinson, EXECUTORS AND ADMINISTRATORS 35 (NCI4th). Where a will gave one of the executors the option to purchase a tract of land owned by the testatrix, the executor could exercise the option to purchase without violating his fiduciary duty as executor. Kapp v. Kapp, FIDUCIARIES 1 (NCI4th). The trial court's charge on undue influence could not have misled the jury to believe that it would have to find undue influence in order to find a fiduciary relationship. Kapp v. Kapp, 2 (NCI4th). Where testatrix gave one of her executors an option to purchase a tract of land within six months after her death and directed in her will that her executors comply with this option, evidence that the executors did not make the option part of the estate file, undervalued the land, and did not inform the beneficiaries of the will of the option until it was exercised was not relevant to show a fiduciary relationship between the optionee-executor and testatrix at the time the option was executed. Kapp v. Kapp, FRAUD, DECEIT, AND MISREPRESENTATION 37 (NCI4th). There was no presumption of fraud in the testatrix's execution of a document giving an executor of her estate the option to purchase a tract of land during her lifetime and for six months after her death where the jury found that there was no fiduciary relationship between the executor and the testatrix at the time the option was executed. Kapp v. Kapp, HOMICIDE 279 (NCI4th). There was sufficient evidence to submit felony murder to the jury where the evidence of the underlying felony of burglary was sufficient. State v. Worsley, 281 (NCI4th). There was sufficient evidence to submit felony murder to the jury where the evidence of the underlying felony of rape was sufficient. State v. Worsley, JURY 64 (NCI4th). There was no error during jury selection for a first-degree murder sentencing hearing where defendant moved that the entire panel be excused for misconduct after two prospective jurors were excused for reading a newspaper in the waiting area, but no juror who heard the case could have heard the motion. State v. Green, 103 (NCI4th). The trial court did not err when it denied defendant's motion for individual voir dire and sequestration of jurors in a capital sentencing proceeding. State v. Robinson, The trial court did not abuse its discretion in a sentencing hearing for first-degree murder by denying defendant's motion for individual voir dire and jury sequestration. State v. Jones, 138 (NCI4th). The trial court did not unduly restrict a first-degree murder defendant in the questions he was allowed to ask prospective jurors on voir dire where an objection was sustained to a question dealing with the age of the defendant but defendant was then allowed to ask a question as to how the prospective juror would consider evidence of mitigating circumstances. State v. Jones, 141 (NCI4th). The trial court did not err during jury selection for a first-degree murder sentencing hearing by not allowing defendant to inquire of prospective jurors regarding their attitudes and knowledge of parole eligibility. State v. Jones, The trial court did not err during jury selection for a first-degree murder sentencing hearing by denying defendant's motion to permit questioning of prospective jurors about their beliefs concerning parole eligibility and by denying defendant's request for an instruction on parole eligibility. State v. Green, There was no prejudicial error in a first-degree murder prosecution where two of the prospective jurors indicated during jury selection that they would have trouble following an instruction that they were not to take the possibility of parole into account, and defendant's request that he be allowed to ask other prospective jurors whether they could follow the instruction was refused. State v. Jones, 145 (NCI4th). The trial court did not abuse its discretion during jury selection for a first-degree murder resentencing by denying defendant the opportunity to ask a potential juror whether he knew that the defendant had previously been sentenced to death. State v. Green, 148 (NCI4th). The trial court properly sustained as to form defense counsel's questions to prospective jurors in a capital resentencing proceeding as to (1) whether, under the factual situation he had explained to them, they would have any trouble giving, if the evidence and mitigating circumstances so warranted, defendant life imprisonment, or whether they would be prone to give the defendant the death penalty, and (2) whether, under the facts he had stated in an uninterrupted, rambling recitation of hypothetical facts, the jurors could vote for life imprisonment if they found the mitigating circumstances were sufficient to outweigh the aggravating circumstances. State v. Robinson, 150 (NCI4th). The trial court did not err during jury selection in a first-degree murder sentencing hearing by refusing to allow defendant to attempt to rehabilitate prospective jurors who were excused for cause on the basis of their opposition to the death penalty. State v. Green, The trial court did not abuse its discretion during jury selection for a first-degree murder sentencing hearing by not allowing defendant to rehabilitate a particular prospective juror whom the State sought to excuse due to her views on the death penalty. Ibid. 153 (NCI4th). The trial court did not err during jury selection for a first-degree murder sentencing hearing by permitting the prosecutor to ask prospective jurors certain questions for the purpose of death qualifying the jury. State v. Green, 194 (NCI4th). The trial court did not err during jury selection for a first-degree murder resentencing hearing by denying defendant's motion to excuse for cause a juror who revealed that he was aware that the defendant had previously been sentenced to death for the same crimes. State v. Green, 217 (NCI4th). The trial court did not err during jury selection for a first-degree murder resentencing hearing where three prospective jurors were removed for cause after expressing reservations about the death penalty. State v. Jones, 222 (NCI4th). The trial court properly excused a prospective juror for cause in a capital sentencing proceeding where her responses to questions by the prosecutor and the court indicated that her feelings about the death penalty would prevent her from following the law and being an impartial juror. State v. Robinson, 256 (NCI4th). Factors to which the Supreme Court has looked to help determine the existence or absence of purposeful discrimination in the prosecution's use of preemptory challenges are set forth in this case. State v. Robinson, Evaluation of the prosecutor's state of mind in using peremptory challenges lies within the trial judge's province, and the findings of the trial judge are not to be overturned unless the appellate court is convinced that the judge's determination was clearly erroneous. Ibid. 260 (NCI4th). The prosecutor did not use his peremptory challenges of six black prospective jurors in a capital resentencing proceeding in a discriminatory manner where the prosecutor stated that the challenges were based on the following reasons: the first juror was a liberal arts teacher, had a male child near the age of defendant, answered some questions with her arms folded, and did not answer in a very direct manner; the second juror had stated that she was eager to attend her granddaughter's college graduation during the trial, she had back problems, she had male children near the age of defendant, she confused being a witness with being a juror, and she apparently misrepresented her age; the third juror had trouble remembering her former address and the name of the trucking company for which her husband worked, she had a male child near the age of defendant, and the prosecutor believed that members of her family had been in trouble with the law; the fourth juror had a pending DWI charge, and she stated that she would hold the State to a higher burden of proof in a death penalty case and that she did not think she could impose the death penalty; the fifth juror equivocated on her position on capital punishment, she was separated from her husband and had a male child near the age of defendant, the prosecutor felt that defendant would probably present evidence of a broken home, and in his opinion this juror would never vote for capital punishment; and the sixth juror answered "yes" in response to an inquiry as to whether he was employed, unemployed, or retired, this response indicated a lack of ability to comprehend or a lack of attention to detail, the juror had a pending DWI charge, the juror had been convicted for nonsupport of illegitimate children and had been back to court three times for failure to comply with court orders, and the juror was almost the same age as the defendant. 261 (NCI4th). The trial court did not err in allowing the prosecutor in a capital sentencing proceeding to exercise peremptory challenges against those jurors who expressed reservations about imposing the death penalty. State v. Robinson, 262 (NCI4th). There was no error in a first-degree murder sentencing hearing where the State used peremptory challenges to remove jurors who expressed reservations about the death penalty. State v. Jones, MASTER AND SERVANT 75 (NCI3d). A per diem rule adopted by the Industrial Commission for reimbursement of hospital charges for services rendered to workers' compensation patients is inconsistent with the "prevailing charge" standard of G.S. 97-26 and thus exceeds the Commission's statutory authority to review and approve such charges. Charlotte-Mecklenburg Hospital Auth. v. N.C. Industrial Comm., The Commission's authority under G.S. 97-90(a) is limited to review and approval of hospital charges to insure (1) that the employer is charged only for reasonably required services and (2) that the employer is not charged more for such services than the prevailing charge for the same or similar hospital service in the same community. Ibid. The Industrial Commission did not exceed its statutory authority when it repealed the Blue Cross and Blue Shield of North Carolina rule. Ibid. QUASI CONTRACTS AND RESTITUTION 31 (NCI4th). The trial court did not err by failing to submit an issue of unjust enrichment where the evidence showed that defendant executor exercised an option given to him by the testatrix to purchase a tract of land for a total price of $35,705, the executor later sold the land for $1,423,000, and testatrix was a competent person who determined the price of her own free will. Kapp v. Kapp, RAPE AND ALLIED OFFENSES 82 (NCI4th). There was sufficient evidence to support submission of first-degree rape to the jury. State v. Worsley, 120 (NCI4th). There was sufficient evidence of attempted first-degree rape to warrant an instruction by the trial court. State v. Worsley, SEARCHES AND SEIZURES 28 (NCI4th). The trial court did not err by denying defendant's motion to suppress physical evidence seized from his home and statements made following his arrest where the uncontroverted facts constituted exigent circumstances sufficient to justify the officers' warrantless, nonconsensual entry into the defendant's home to effect his arrest. State v. Worsley, 57 (NCI4th). A bloody bed sheet was admissible in a prosecution for burglary, rape and murder where the sheet was in plain view of the officers. State v. Worsley, 71 (NCI4th). Evidence obtained as a result of the consent of defendant's wife for a search of their apartment was admissible in a prosecution for burglary, rape, and murder. State v. Worsley, STATE 22 (NCI4th). The doctrine of sovereign immunity did not authorize the dismissal of plaintiff hospitals' complaint alleging that defendant Industrial Commission and its members, in excess of their statutory authority, adopted an invalid regulation. Charlotte-Mecklenburg Hospital Auth. v. N.C. Industrial Comm., TRUSTS 1.1 (NCI3d). A provision in a will that the residuary estate shall be "administered and distributed" in stated percentages to plaintiffs did not create an express trust, and provisions of the Uniform Trust Act did not apply to prohibit the executors from conveying land owned by the testatrix to one of the executors pursuant to an option to purchase. Kapp v. Kapp,