CONTENTS 9 SEPTEMBER 1994 ADMINISTRATIVE LAW AND PROCEDURE 30 (NCI4th). The North Carolina Administrative Procedures Act confers upon any "person aggrieved" the right to commence an administrative hearing to resolve a dispute with an agency involving the person's rights, duties, or privileges. Empire Power Co. v. N.C. Dept. of E.H.N.R., The administrative hearing provisions of the NCAPA apply to respondent DEHNR and to the pollution control permit proceeding, and the third party petitioner is entitled to an administrative hearing pursuant to G.S. 150B-23 unless he is not a person aggrieved by the permitting decision of the DEHNR or the organic statute, G.S. 143-215.108(e), amends, repeals or makes an exception to the NCAPA so as to exclude him from those expressly entitled to appeal thereunder. Ibid. The air pollution control administrative review provisions in G.S. 143-215.108(e) do not by implication amend, repeal, or make an exception to the NCAPA so as to exclude the third party petitioner from those entitled to an administrative hearing thereunder, and petitioner is entitled to commence an administrative hearing in the OAH to determine his right under the Air Pollution Control Act to have DEHNR issue or deny air quality permits to respondent power company in accordance therewith. Ibid. 55 (NCI4th). Petitioner is a "person aggrieved" as defined by the NCAPA within the meaning of the Air Pollution Control Act where he alleged that DEHNR issued an air quality permit to respondent power company for sixteen electric generating units in violation of certain of its statutory and regulatory duties, and that, as the owner of property immediately adjacent to and downwind of the site of the proposed generating units, he will suffer from the adverse environmental consequences of pollutants from the units. Empire Power Co. v. N.C. Dept. of E.H.N.R., ATTORNEYS AT LAW 2 (NCI4th). The past behavior of a Bar applicant may be considered by the Board of Law Examiners in determining the applicant's current moral character. In re Legg, A Bar applicant was given sufficient notice that the Board of Law Examiners would consider not only his current moral character but also his 1986 application containing certain omissions in a hearing on the applicant's petition for reconsideration of his application based on newly discovered evidence. Ibid. Substantial evidence supported findings by the Board of Law Examiners that a Bar applicant converted to his own use funds received from the State of West Virginia that he owed to an investigator for services rendered in two indigent defendant criminal cases, attempted to conceal from the executor of his mother-in-law's estate the existence of $10,000 loan which had been made to him by his mother-in-law, and neglected to return legal papers to a client after a written request. Ibid. The Board of Law Examiners did not violate the rule requiring that Bar applicants be notified of protests to their application because a witness had ex parte communications with the Board about the applicant's attempt to conceal a loan made to him by his mother-in-law prior to her death and testified at hearings about the loan. Ibid. CONSTITUTIONAL LAW 161 (NCI4th). Defendant's argument that dismissal of murder charges against an accomplice required that his conviction be vacated on due process and equal protection grounds was rejected. State v. Taylor, 230 (NCI4th). The prosecutor did not act in bad faith in a third capital sentencing proceeding by his comments to the prospective jury panel and in his opening statement that the State intended to rely on the especially heinous, atrocious, or cruel aggravating circumstance when he knew that this circumstance had not been submitted to the jury in the second sentencing proceeding. State v. Payne, 231 (NCI4th). Where defendant was charged with two first- degree murders and kidnappings and convicted of kidnapping and first-degree murder based on premeditation and deliberation and felony murder, but there was error in the instruction on first- degree murder based on premeditation and deliberation, the convictions for first-degree murder based on premeditation and deliberation were vacated; the felony murder convictions, which were not affected by the error, were upheld; and the kidnapping convictions, as the underlying felony, were arrested. It was unnecessary, if not a violation of double jeopardy, to retry defendant on the theory affected by the error. State v. Blankenship, 248 (NCI4th). The State's failure to specifically disclose, pursuant to defendant's discovery request, a witness's failure to identify a knife found on a murder victim's body as belonging to defendant three hours after the murder by shooting did not constitute prejudicial error and thus did not violate defendant's due process rights where defendant anticipated the prosecutorial theory that the knife found at the scene was a "plant" placed on the victim's body by defendant to support his self-defense claim. State v. Smith, 249 (NCI4th). Defendant's due process rights were not violated by the trial court's denial of defendant's motion for the discovery of impeaching information, including any information about any internal affairs investigation of the chief investigating officer and information as to whether a State's witness suffered from any mental defect or had a history of substance abuse. State v. Smith, 280 (NCI4th). The trial court in a murder and kidnapping prosecution did not abuse its discretion by denying a pro se defendant's request to reinstate his trial counsel. State v. Blankenship, 323 (NCI4th). Defendant's failure to assert her speedy trial claim sooner in the process did not foreclose the claim, but weighed against it. State v. Webster, 325 (NCI4th). A delay of sixteen months from arrest to trial in a second-degree murder prosecution was not in itself enough to conclude that a constitutional speedy trial violation had occurred, but was clearly enough to cause concern and to trigger examination of other factors. State v. Webster, There was no violation of defendant's constitutional right to a speedy trial where defendant suffered prejudice from a delay of sixteen months between arrest and trial in that she suffered anxiety, her employment was disrupted, her financial resources drained, her association with people in the community curtailed, and her liberty impaired, but she conceded that she suffered no impairment of her ability to defend and she was released from jail on bond only five days after her arrest and remained free from that time until her sentence. Ibid. 326 (NCI4th). A delay of sixteen months from arrest to trial in a second-degree murder prosecution was due largely to the operation of neutral factors and there was no showing that the prosecution willfully or through neglect or improper purposes delayed defendant's trial. State v. Webster, 370 (NCI4th). The North Carolina death penalty statute is not facially unconstitutional because jury discretion is not guided appropriately by objective standards. State v. Keel, The trial court's use of the issues and recommendation sheet in a capital sentencing proceeding did not violate the cruel and unusual punishment clause in the Eighth Amendment and deny defendant due process where defendant argued that the language is defective because it allows a jury to recommend death if it finds that the mitigating circumstances are of equal weight and value to the aggravating circumstances. Ibid. CRIMINAL LAW 47 (NCI4th). Defendant's argument that dismissal of murder charges against an accomplice required that his conviction be vacated on due process and equal protection grounds was rejected. State v. Taylor, 103 (NCI4th). The trial court did not err in the denial of defendant's motion to require the State to disclose evidence of prior crimes or bad acts by defendant that the State intended to introduce at a capital resentencing hearing. State v. Payne, 412 (NCI4th). The prosecutor did not act in bad faith in a third capital sentencing proceeding by his comments to the prospective jury panel and in his opening statement that the State intended to rely on the especially heinous, atrocious, or cruel aggravating circumstance when he knew that this circumstance had not been submitted to the jury in the second sentencing proceeding. State v. Payne, 427 (NCI4th). There was no plain error in a noncapital first- degree murder prosecution where the prosecutor stated in his closing argument that "Generally in a homicide, there's two kinds of parties there, the victim who can't say anything, and the perpetrator, who won't say anything" and later said, when arguing that there was no logical explanation as to why the defendant's vehicle was found near a ravine, "The defendant has got to explain something to you. But what he has explained is absurd." State v. Taylor, 434 (NCI4th). There was no prejudice in the prosecutor's argument regarding the serial number of the gun used by defendant in a prosecution for first-degree murder, second-degree murder, and assault where the prosecutor's comment clearly implies that defendant knowingly purchased a stolen handgun. State v. Terry, 452 (NCI4th). The prosecutor did not improperly urge the jury in a capital resentencing hearing to reject voluntary gasoline inhalation as mitigating because it does not qualify as an excuse for the crime when he stated in his closing argument, "He goes and voluntarily does that, and voluntary intoxication of any kind is no excuse for any crime in this State. If it was, he would have been found guilty by reason of insanity," where these statements were directed to the weight the jury should give the impaired capacity mitigating circumstance. State v. Payne, 455 (NCI4th). The prosecutor's jury argument in a capital resentencing hearing that the only way to be sure that defendant never did this again is to give him the death penalty did not suggest to the jury that defendant might be released on parole if sentenced to life and was not improper. State v. Payne, 463 (NCI4th). The trial court did not err in a prosecution for first-degree murder, second-degree murder, and assault in which defendant claimed self-defense by overruling defendant's objection to the prosecutor's closing argument that the victim could not have been a threat where the medical examiner had testified that the victim was shot once in the abdomen and twice in the back. State v. Terry, 732 (NCI4th). The trial court did not express an opinion on the evidence by instructing the jury in a first-degree murder case that "[t]here is evidence in this case which tends to show the defendant has admitted facts relating to the crime charged in this case" where defendant testified that he pulled out his gun and shot the victim. State v. Shuford, 794 (NCI4th). There was sufficient evidence to support the trial court's instructions on acting in concert in a noncapital prosecution for first-degree murder. State v. Taylor, 856 (NCI4th). The trial court did not err in a noncapital first-degree murder and kidnapping prosecution by mentioning appellate review in the jury charge. State v. Blankenship, 874 (NCI4th). There was no plain error in a first-degree murder prosecution where the trial court's initial instruction on the elements of first-degree murder included the sixth element that defendant did not act in self-defense or was the aggressor, the jury returned and asked the court to restate the six requirements, the court reinstructed the jury according to its original instruction but omitted the sixth instruction, the jury indicated that its request had been answered, and defense counsel had indicated in court that there was nothing further and later informed the court in chambers that he had not wanted the court to instruct on the sixth requirement. State v. Keel, 1125 (NCI4th). The trial court erred in a prosecution for first-degree murder, second-degree murder, and assault by finding as a non-statutory aggravating factor for the second-degree murder that the murder was part of a course of conduct and that that course of conduct included other crimes of violence where defendant was convicted contemporaneously for the joined offenses of first-degree murder and assault with a deadly weapon. State v. Terry, 1303 (NCI4th). The trial court did not err by denying defendant's request that prospective jurors in a resentencing hearing for first-degree murder be instructed during preselection that defendant had received a life sentence for first-degree rape of the victim. State v. Payne, 1309 (NCI4th). The prosecutor did not improperly inject the especially heinous, atrocious, or cruel aggravating circumstance into a capital resentencing hearing by asking witnesses about the victim's defensive and other wounds when he knew that this circumstance was not submitted to the jury in a prior sentencing hearing where the prosecutor's questions were relevant to sentencing because the jury had to hear evidence concerning the offense in order to consider the aggravating circumstance of whether the capital felony was committed while the defendant was engaged in the commission of a rape. State v. Payne, 1323 (NCI4th). The trial court did not err by instructing the jury that it could consider nonstatutory mitigating circumstances if it found that such circumstances existed and that such circumstances had mitigating value. State v. Payne, The definition of aggravating circumstance created by G.S. 15A-2000(e) is not vague and overbroad. State v. Keel, 1326 (NCI4th). The trial court's failure to define "preponderance of the evidence" of its own accord in its instructions on defendant's burden of proof for mitigating circumstances was not plain error; nor was there plain error in the trial court's explanation that "preponderance of the evidence" requires that the evidence "satisfy" the juror that the circumstance exists. State v. Payne, 1333 (NCI4th). The trial court's use of the issues and recommendation sheet in a capital sentencing proceeding did not violate the cruel and unusual punishment clause in the Eighth Amendment and deny defendant due process. State v. Keel, 1337 (NCI4th). The trial court did not err in a capital sentencing procedure by allowing the jury to consider defendant's previous conviction for involuntary manslaughter as the basis for the sole aggravating factor of a previous conviction of a felony involving the use or threat of violence to a person even though defendant argued that involuntary manslaughter is by definition an unintentional killing. State v. Keel, The trial court did not err at a capital sentencing proceeding by declining to give defendant's requested instruction on the aggravating circumstance of a prior felony involving violence that "...violence is the use of extreme force with the intent to inflict harm or destruction." Ibid. 1348 (NCI4th). The trial court did not err in a capital sentencing proceeding by failing to give defendant's requested instruction defining mitigating circumstances and directing the jurors that they could properly base their sentencing recommendation upon any sympathy they might have for defendant. State v. Keel, 1349 (NCI4th). The trial court did not err in a capital sentencing proceeding in the issues contained on the Issues and Recommendation as to Punishment Form. State v. Keel, 1351 (NCI4th). A defendant in a capital sentencing proceeding was not deprived of his right to be free from cruel and unusual punishment where the court instructed the jury that the defendant had the burden of proving mitigating circumstances by a preponderance of the evidence. State v. Keel, 1355 (NCI4th). The trial court's use of the phrase "little, if any" prior criminal activity in its instruction on the no significant history of criminal activity mitigating circumstance was not plain error when considered in context where the instruction correctly informed the jury that, in determining the significance of defendant's criminal history, it should consider the nature and quality of defendant's activity rather than focus solely on the number of acts. State v. Payne, 1357 (NCI4th). The rejection by all jurors of the mental or emotional disturbance mitigating circumstance was not arbitrary and did not violate either the Eighth Amendment or G.S. 15A- 2000(d)(2). State v. Payne, 1358 (NCI4th). The trial court did not err by failing to include personality disorder and borderline intelligence as grounds for considering the mental or emotional disturbance mitigating circumstance in an instruction which included the effects of gasoline sniffing and alcohol consumption as evidence of this circumstance where the instruction accorded with defendant's evidence in that the jury could consider defendant's lower intellectual functioning as one of the effects of his substance abuse; furthermore, the trial court's use of the conjunctive in this instruction accorded with defendant's evidence that the effects of gasoline inhalation and alcohol intoxication interact with each other and cause a greater effect than if administered separately and was not plain error. State v. Payne, 1360 (NCI4th). The trial court did not err by failing to mention defendant's personality disorder as a possible source of the impaired capacity mitigating circumstance in an instruction which included gasoline inhalation, alcohol consumption and low intelligence as possible causes of this circumstance where defendant's experts did not link defendant's personality disorders to any impairment in capacity; furthermore, the trial court's use of the conjunctive in this instruction accorded with defendant's evidence and was not plain error. State v. Payne, The rejection by all jurors of the impaired capacity mitigating circumstance was not arbitrary and did not violate either the Eighth Amendment or G.S. 15A-2000(d)(2). Ibid. 1361 (NCI4th). The trial court's statement in its instructions on the mitigating circumstance of impaired capacity in a capital sentencing proceeding that "generally voluntary intoxication is no excuse for crime" could not have misled jurors to interpret impaired capacity as excluding impairment due to voluntary gasoline or alcohol intoxication. State v. Payne, 1373 (NCI4th). A sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate where defendant broke into the victim's home and brutally killed her by sixteen blows with a hatchet, defendant raped the victim while she was still alive, and defendant showed not remorse for the crime. State v. Payne, A sentence of death for first-degree murder was not disproportionate. State v. Keel, ENVIRONMENTAL PROTECTION, REGULATION, AND CONSERVATION 63 (NCI4th). The administrative hearing provisions of the NCAPA apply to respondent DEHNR and to the pollution control permit proceeding, and the third party petitioner is entitled to an administrative hearing pursuant to G.S. 150B-23 unless he is not a person aggrieved by the permitting decision of the DEHNR or the organic statute, G.S. 143-215.108(e), amends, repeals or makes an exception to the NCAPA so as to exclude him from those expressly entitled to appeal thereunder. Empire Power Co. v. N.C. Dept. of E.H.N.R., Petitioner is a "person aggrieved" as defined by the NCAPA within the meaning of the Air Pollution Control Act where he alleged that DEHNR issued an air quality permit to respondent power company for sixteen electric generating units in violation of certain of its statutory and regulatory duties, and that, as the owner of property immediately adjacent to and downwind of the site of the proposed generating units, he will suffer from the adverse environmental consequences of pollutants from the units. Ibid. The air pollution control administrative review provisions in G.S. 143-215.108(e) do not by implication amend, repeal, or make an exception to the NCAPA so as to exclude the third party petitioner from those entitled to an administrative hearing thereunder, and petitioner is entitled to commence an administrative hearing in the OAH to determine his right under the Air Pollution Control Act to have DEHNR issue or deny air quality permits to respondent power company in accordance therewith. Ibid. There was no merit to respondents' contention that a third party should have no right to appeal to the OAH from the decision of the DEHNR to grant an air pollution control permit to a power company because DEHNR's review of applications for such permits is comprehensive and highly technical, the permitting decision is properly made by technical experts, and an evidentiary hearing in the OAH would be redundant. Ibid. EVIDENCE AND WITNESSES 285 (NCI4th). The trial court in a murder prosecution did not err by denying defendant's motion to permit defendant to introduce prior convictions of the victim for assault with a deadly weapon and burglary, forensic evaluation records pertaining to the assault conviction, and prison records of the victim's disciplinary infractions where there was no evidence that defendant was aware of the victim's criminal past at the time of the killing, and defendant's purpose for offering the evidence was to show that the victim was the aggressor. State v. Smith, 757 (NCI4th). Any error the trial court may have made in a prosecution for first-degree murder, second-degree murder, and assault by denying defendant's motion to suppress a statement he had made to investigators was harmless where the State introduced the statement; defendant testified on direct examination that he had made this statement, that the statement was not true, and that he had made it because he was afraid of going to jail; and defendant did not claim that he was impelled to give this testimony as a direct result of the trial court's earlier admission of his statement into evidence. State v. Terry, 1912 (NCI4th). There was no error in a noncapital first-degree murder prosecution in the admission of evidence of a bloodhound's actions in tracking the victim. State v. Taylor, 2124 (NCI4th). The trial court did not abuse its discretion by refusing to admit opinion testimony of an emergency medical technician concerning the distance from which the victim was shot without some showing by defendant that the witness was qualified to testify about gunshot wounds, either as a lay witness or as an expert. State v. Shuford, 2859 (NCI4th). Rule 612 does not provide for the admission into evidence of writings used to refresh a witness's memory but entitles defendant only to have such writings produced at trial, the admissibility of these writings being subject to the same rules of admissibility that apply to any evidence. State v. Shuford, EXECUTORS AND ADMINISTRATORS 103 (NCI4th). A claim against an estate arising from an automobile collision was not barred because it was not timely presented where no personal representative or collector had been appointed. Ragan v. Hill, HOMICIDE 230 (NCI4th). There was sufficient evidence of first-degree murder where the evidence presented at trial would support inferences and findings to the effect that the defendant plotted to kill his father-in-law; lured him to a farm on a pretext; shot him twice causing his death; and thereafter made every effort possible to conceal his crime. State v. Keel, The trial court did not err by denying defendant's motion to dismiss a first-degree murder charge for insufficient evidence that defendant was the perpetrator of the offense. State v. Taylor, 244 (NCI4th). There was sufficient evidence in a noncapital first-degree murder prosecution where premeditation and deliberation could be inferred from the number of wounds, the brutal manner in which they were inflicted, and defendant's attempt to cover up his actions in his statements to the police. State v. Taylor, 262 (NCI4th). The trial court did not err in submitting first- degree felony murder to the jury where defendant argued that there was an insufficient connection between the murder and the underlying felony of felonious assault, but an interrelationship clearly existed between this felonious assault and the homicide in that the assault of one victim and the killing of another were part of an unbroken chain of events all of which occurred within two seconds. State v. Terry, 445 (NCI4th). The trial court did not err by instructing the jury in a murder trial that it could infer malice and unlawfulness if the State proved or "if it is admitted" that defendant intentionally used a deadly weapon where defendant testified at trial that he pulled out his gun and shot the victim. State v. Shuford, 583 (NCI4th). The trial court erred in a prosecution for first-degree murder and kidnapping in its instructions on acting in concert where the instructions were likely to be understood by the jury to permit convicting defendant of premeditated and deliberated murder, which requires a specific intent to kill, formed after premeditation and deliberation, when the only purpose shared between defendant and an accomplice was to kidnap the victims and when only the accomplice actually murdered the victims with the requisite specific intent to kill formed after premeditation and deliberation. State v. Blankenship, 651 (NCI4th). There was no error in a prosecution for first- degree murder, second-degree murder, and assault in the trial court's instruction that "one may only do in defense of a third person what that other person might do in his own defense." State v. Blankenship, JURY 70 (NCI4th). The trial court did not err by denying defendant's request that prospective jurors in a resentencing hearing for first-degree murder be instructed during preselection that defendant had received a life sentence for first-degree rape of the victim. State v. Payne, 141 (NCI4th). The trial court properly denied defendants's oral motion for permission to question potential jurors in a capital sentencing proceeding regarding their beliefs about parole eligibility where defendant would have been eligible for parole had he been given a life sentence. State v. Payne, 142 (NCI4th). The trial court did not err in a murder and kidnapping prosecution by prohibiting defendant from asking potential jurors whether they would regard a defense decision not to introduce any evidence as an indication that he "had something to hide." State v. Blankenship, 226 (NCI4th). The trial court not err in a first-degree murder prosecution by allowing the State's challenges for cause of prospective jurors on the basis of their opposition to capital punishment without first giving the defendant an opportunity to attempt to rehabilitate. State v. Keel, LIMITATIONS, REPOSE, AND LACHES 26 (NCI4th). An attorney's last act giving rise to a claim for professional malpractice for alleged negligence in drafting a will occurred when he supervised the execution of the will, and plaintiffs' malpractice claim against the attorney was barred by the four-year statute of repose contained in G.S. 1-15(c) where the claim was filed more than 13 years after the attorney prepared the will and supervised its execution. Hargett v. Holland, 29 (NCI4th). Plaintiff's claim for negligent construction and breach of warranty of a townhouse plaintiff purchased from defendant builder was barred by the six-year real property improvement statute of repose set forth in G.S. 1-50(5)(a) where plaintiff purchased the townhouse from defendant more than six years before plaintiff brought her claim, and the exclusion in subsection (d) of the statute thus did not apply because defendant was not in possession or control when its allegedly negligent conduct proximately caused plaintiff's damage. Cage v. Colonial Building Co., 32 (NCI4th). Subsection (d) of the real property improvement statute of repose, G.S. 1-50(5), excludes from the six-year statute of repose in subsection (a) any person who is in possession or control of property at the time that person's negligent conduct proximately causes injury or damage to the claimant. Cage v. Colonial Building Co., 69 (NCI4th). A claim against an estate arising from an automobile collision was not barred because it was not timely presented where no personal representative or collector had been appointed. Ragan v. Hill,