CONTENTS 10 SEPTEMBER 1993 APPEAL AND ERROR 360 (NCI4th). A motion by the State to amend the record on appeal by adding affidavits from the trial judge and the prosecutor was denied. State v. Gay, 504 (NCI4th). Any error in the admission of testimony by defendant's psychiatric expert using the legal term of art "duress" and in the incorporation of the expert's testimony into the closing arguments of both defendant and the prosecution was invited error. State v. Gay, ASSAULT AND BATTERY 116 (NCI4th). The trial court did not err in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury by not instructing on the lesser-included offense of assault with a deadly weapon inflicting serious injury where the evidence of intoxication was insufficient to negate the necessary intent for assault with a deadly weapon with intent to kill inflicting serious injury and all the evidence tended to show a shooting with a deadly weapon with the intent to kill. State v. Oliver, BURGLARY AND UNLAWFUL BREAKINGS 70 (NCI4th). There was sufficient evidence of burglary where the evidence supports constructive breaking in that defendant induced the occupant to open the door by knocking at the door under the pretense of business. State v. Oliver, 99 (NCI4th). There was no error in a prosecution for murder and burglary in the court's reinstructions on breaking and entering where the circumstances under which defendant, armed with a pistol, gained entry at 2:30 in the morning were sufficient to negate any issue of whether the victim was authorized to or granted consent to defendant's entry. State v. Oliver, 151 ((NCI4th). The trial court did not err by refusing to give defendant's requested instruction that the jury could consider defendant's mental ability in connection with her ability to form "the specific intent to commit burglary" since the specific intent element of burglary relates solely to the intent to commit a felony within the dwelling place. State v. Gay, 153 (NCI4th). Assuming that an instruction on diminished capacity as a defense to burglary would have been appropriate in light of the evidence presented, the trial court sufficiently instructed the jury on this defense when it gave a diminished capacity instruction in relation to the charge of the intended felony of first-degree murder. State v. Gay, 165 (NCI4th). The trial court did not err in a first-degree burglary prosecution by failing to submit the lesser-included offense of felonious breaking or entering where all of the evidence showed a "constructive" breaking and entering during the nighttime into an apartment with people sleeping inside with the intent "to rob the Mexicans." State v. Oliver, There was no evidence that defendant did not have a felonious intent at the time she broke into and entered the victims' residence so as to require the trial court to submit misdemeanor breaking or entering as a lesser included offense of first-degree burglary. State v. Gay, CONSPIRACY 38 (NCI4th). The evidence was sufficient to support defendant's conviction of a separate conspiracy to commit burglary in addition to conspiracy to commit murder. State v. Gay, CONSTITUTIONAL LAW 182 (NCI4th). Defendant's conviction of first-degree murder under theories of accomplice liability based on (1) premeditation and deliberation and (2) felony murder did not violate defendant's right against double jeopardy. State v. Gay, 248 (NCI4th). The trial court did not err by denying defendant's motion for a mistrial, properly denominated a motion for appropriate relief, in a prosecution for first-degree murder, but erred by ordering that no one but SBI agents contact a potential witness where defendant produced testimony concerning a handwritten, unsigned note which alleged that someone other than defendant committed the crime. State v. Potts, The failure of a prosecutor in a murder trial to disclose a witness's inability to positively identify defendant did not violate defendant's right to due process because there is not a reasonable probability that disclosure would have affected the outcome of defendant's trial. State v. Howard, 281 (NCI4th). A first-degree murder defendant's right to proceed pro se was not infringed where the right was not properly asserted. State v. Williams, 342 (NCI4th). The trial court did not commit reversible error by directing the bailiff on eight occasions to inform venirepersons waiting to be called or the jury itself that the jurors should take or extend a recess during discussions of legal issues or that the jurors were on break and were to continue to abide by earlier instructions. State v. Gay, A defendant was not deprived of his right to be present at every stage of his trial where the court twice instructed the bailiff during hearings out of the presence of the jury to tell the jury that it was free to leave the jury room for fifteen minutes. State v. May, CRIMINAL LAW 34 (NCI4th). The trial court in a first-degree murder case did not err in striking defendant's testimony that she was "scared" and "frightened" when her companion told her to hold the victims at gunpoint where defense counsel stated that the testimony was offered solely to prove duress or coercion since duress is not a defense to murder. State v. Gay, 79 (NCI4th). The trial court properly denied defendant's motion for a change of venue because defendant failed to carry his burden of showing any reasonable likelihood that pretrial, word-of-mouth publicity might have affected the fairness of his trial for first-degree murder, rape, burglary, kidnapping and aggravated assault. State v. Yelverton, 98 (NCI4th). An assignment of error to the State's discovery of documents previously sealed was rejected where defendant conceded that he was not prejudiced. State v. Howard, 427 (NCI4th). The trial court erred in a prosecution for breaking or entering by overruling defendant's objection to the prosecution's closing comments about defendant's decision not to testify. The prosecution may comment on a defendant's failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State, but a prosecution's argument which clearly suggests that a defendant has failed to testify is error and it is of no relevance that the prosecution's reference to defendant's failure to testify parroted the pattern jury instructions. State v. Reid, 483 (NCI4th). The trial court did not commit reversible error by directing the bailiff on eight occasions to inform venirepersons waiting to be called or the jury itself that the jurors should take or extend a recess during discussions of legal issues or that the jurors were on break and were to continue to abide by earlier instructions. State v. Gay, 680 (NCI4th). A defendant sentenced to death for each of three convictions of first-degree murder is entitled to a new sentencing hearing where the trial court refused to give requested peremptory instructions on various nonstatutory mitigating circumstances supported by uncontroverted evidence. State v. Gay, 762 (NCI4th). An instruction on reasonable doubt in a prosecution for murder, burglary with explosives, and attempted safecracking was erroneous. State v. Williams, 775 (NCI4th). Although there was evidence that defendant had drunk beer and liquor at a party and had smoked crack cocaine before the crimes, the trial court did not err by refusing to instruct on voluntary intoxication where the victim and the man with whom defendant smoked crack both testified that defendant appeared to be rational and showed no other physical signs of intoxication. State v. Yelverton, There was no error in a first-degree murder prosecution in the court's failure to give defendant's requested instruction on voluntary intoxication where defendant presented no evidence relating to his degree of intoxication and none of the State's witnesses specifically testified that defendant was intoxicated. State v. Oliver, 793 (NCI4th). The trial court did not err by failing to give defendant's requested instruction in a prosecution for three first-degree murders that "where a defendant is charged on a theory of acting in concert for crimes requiring a specific intent, that intent must be shown as to each defendant," where the trial court incorporated an acting in concert instruction into each element of the crimes charged, and the instructions required the jury to find that defendant herself, acting either alone or with a codefendant, intended to kill the victims. State v. Gay, 803 (NCI4th). A defendant may not decline an opportunity for instructions on a lesser included offense and then claim on appeal that failure to instruct on the lesser offense was error. State v. Gay, 951 (NCI4th). A first-degree murder defendant was not prejudiced by the court's refusal to rule on his motions for appropriate relief, mistrial and dismissal prior to sentencing where the jury recommended that defendant be sentenced to life imprisonment, the least severe sentence defendant could have received. State v. Howard, 1158 (NCI4th). The trial court did not err when sentencing defendant for first-degree burglary by using the fact that defendant was armed with a deadly weapon at the time of the breaking and entering to aggravate the sentence; the North Carolina Supreme Court has consistently held that possession of a deadly weapon may be used to aggravate the sentence for a burglary conviction when the use of the same weapon constitutes a separate offense. State v. Oliver, 1193 (NCI4th). The trial court did not err when sentencing defendant for first-degree burglary and assault with a deadly weapon with intent to kill inflicting serious injury by finding the aggravating factor of prior convictions where one of those convictions was on appeal but defendant failed to object to the use of this conviction on the ground that it was on appeal and stipulated to the validity of his prior conviction. State v. Oliver, 1199 (NCI4th). The trial court erred by adopting the "catchall" mitigating circumstance found by the jury for the capital crime of first-degree murder when imposing sentences for kidnapping, aggravated assault and armed robbery without indicating in the record its conclusion as to exactly what the circumstance denoted. State v. Yelverton, 1333 (NCI4th). The trial court did not err in submitting as aggravating circumstances for first-degree murder that the offense was (1) especially heinous, atrocious, or cruel, (2) committed during a burglary, and (3) part of a course of conduct where there was separate evidence to support each of these circumstances, but the court should have instructed the jury in such a way as to ensure that jurors would not use the same evidence to find more than one aggravating circumstance. State v. Gay, DISTRICT ATTORNEYS 4 (NCI4th). Where a breaking or entering conviction was reversed on other grounds, the trial court was cautioned to insure on remand that there is no conflict of interest by the State and no participation in the case by a former defense attorney now employed as an assistant prosecutor. State v. Reid, EVIDENCE AND WITNESSES 315 (NCI4th). Evidence of defendant's rape of a second victim a few hours after his rape of the victim in this case was admissible to show identity, motive and intent, and the probative value of such evidence was overwhelming and not outweighed by the danger of unfair prejudice. State v. Yelverton, 351 (NCI4th). The trial court did not err in a murder prosecution by admitting evidence that defendant sold cocaine on the night of the shooting. State v. Cook, 668 (NCI4th). There was no plain error in a first-degree murder prosecution where defendant did not object at trial to the admission of certain testimony by an expert in fiber identification and comparison. State v. Potts, 907 (NCI4th). Testimony from an officer that a witness who could not be located could not add anything was not hearsay in that the testimony did not repeat, summarize, or intimate any oral or written assertions made during the investigatory interview and merely contained the officer's conclusion based on his interview. State v. Oliver, 1263 (NCI4th). The trial court properly admitted defendant's statements and some boxes where defendant was arrested at a boarding house, informed of his Miranda rights and asked whether he understood those rights; defendant responded that he did but stood mute when asked whether he wished to waive his right to remain silent and whether he wished to waive his right to have counsel present during questioning; someone asked defendant whether anything in the room belonged to him; defendant responded that he owned the boxes on the floor; and defendant responded affirmatively when asked whether he would consent to a search of the boxes. State v. Williams, 1294 (NCI4th). The trial court did not err in a prosecution for murder and armed robbery by admitting into evidence a knife, a pair of gloves, and a rag which had been found in the yard of defendant's house where defendant's girlfriend acted as an agent of the State in talking with defendant about the location of those items in violation of defendant's rights under Miranda and Edwards but the trustworthiness of the physical evidence could not be affected by its admission or exclusion and the deterrent value of the exclusionary rule is satisfied by the exclusion of defendant's statement. State v. May, 1617 (NCI4th). There was no error where a partially inaudible tape recording was admitted and a witness and the prosecutor were allowed to "interpret" the tape recording for the jury. The witness testified to defendant's statements from his own knowledge of the conversation and the prosecutor argued that the tape contained various incriminating statements by defendant. State v. Williams, 1618 (NCI4th). The trial court did not err by admitting a tape recording allegedly containing admissions by defendant where the tape was partially inaudible. A tape recording which is not sufficiently audible cannot be considered competent evidence, but a tape recording should not be excluded merely because parts of it are inaudible if there are other parts that can be heard. State v. Williams, 1623 (NCI4th). The seven-prong test of State v. Lynch, 279 N.C. 1, for authentication of tape recordings has been superseded by the authentication requirements of G.S. 8C-1, Rule 901, under which authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. State v. Williams, 1686 (NCI4th). The trial court did not abuse its discretion in a murder prosecution by allowing the State to use two photographs showing the victim as found at the crime scene with blood streaked across his face and head to illustrate the testimony of the person who found the body and to illustrate the testimony of the SBI agent who analyzed the crime scene. State v. Williams, 2479 (NCI4th). The trial court did not abuse its discretion by denying defendant's request to have her expert mental health witness view a portion of defendant's testimony because a reciprocal sequestration order had been entered. State v. Gay, HOMICIDE 41 (NCI4th). The trial court did not err by denying defendant Smith's requested instruction in a prosecution for murder and for firing into occupied property where the victim was mortally wounded during a volley of gunfire from defendants' firearms; the temporal order of the fatal shot by defendant Cook and other shots fired by defendant Smith, acting in concert with Cook, is immaterial. State v. Cook, 83 (NCI4th). The trial court did not err in its instructions on self-defense in a first-degree murder prosecution where defendant contended that State v. Robinson, 188 N.C. 784, provides for a finding of guilty of manslaughter when the defendant reasonably uses deadly force to repel an attack but continues to use it when it is no longer necessary. Robinson should not be read to hold that once a defendant can no longer reasonably believe he is in danger that he may continue to use deadly force and be found guilty of no more than manslaughter. State v. Potts, 86 (NCI4th). The trial court did not err in a first-degree murder prosecution by instructing the jury that the defendant would not be entitled to a verdict of not guilty if he was the aggressor in the fight. State v. Potts, 118 (NCI4th). The trial court did not err in striking defendant's testimony that she was "scared" and "frightened" when her companion told her to hold murder victims at gunpoint where defense counsel stated that the testimony was offered solely to prove duress since duress is not a defense to murder. State v. Gay, 199 (NCI4th). The State's evidence was sufficient to show that defendant's attack on the victim with a mop handle was the proximate cause of the victim's death from a heart attack so as to support his conviction of felony murder even though injuries received by the victim would not have been fatal to a person in good health. State v. Yelverton, 244 (NCI4th). The evidence was clearly sufficient to support a conclusion that a murder was premeditated and deliberate where defendant carried a knife with him during an attempted safe-cracking, struck the victim numerous times with a heavy object, causing at least three lethal injuries, some of the lethal blows may have been inflicted while the victim was lying helpless on the ground, and there was no evidence to show that defendant was provoked. State v. Williams, 279 (NCI4th). The trial court did not err by instructing a jury that it could convict defendant of first-degree murder if it found that the killing had occurred during the commission of a burglary with explosives. State v. Williams, 280 (NCI4th). The trial court did not err when it denied defendants' motions to dismiss charges of first-degree murder and discharging a firearm into occupied property for insufficient evidence where there was ample evidence from which a jury could find that defendants fired weapons into the vehicle driven by the victim; that a bullet from defendant Cook's weapon struck the victim causing his death; and that defendants were acting in concert when they engaged the victim in conversation and fired shots at his automobile as he drove away. State v. Cook, 396 (NCI4th). The trial court did not err by failing to give defendant's requested instruction in a prosecution for three first-degree murders that "where a defendant is charged on a theory of acting in concert for crimes requiring a specific intent, that intent must be shown as to each defendant" where the substance of the requested instruction was given. State v. Gay, 484 (NCI4th). The trial court did not err in a first-degree murder prosecution by instructing the jury that it should find that defendant acted with malice if he killed without just cause, excuse or justification. State v. Potts, 556 (NCI4th). The trial court did not err in a prosecution for first-degree murder and attempted armed robbery by not instructing the jury on the lesser-included offense of second-degree murder. All the evidence in this case indicates that the murder was committed during an attempted armed robbery and, by statutory definition, a murder committed during the perpetration of an attempted armed robbery is first-degree murder. State v. Oliver, In a felony murder prosecution based on the felony of first-degree burglary committed with the intent to commit rape, the State's evidence was positive and uncontradicted as to each element of burglary based on the intent to commit rape so that the trial court did not err by refusing to submit to the jury the lesser included offenses of second degree murder and involuntary manslaughter even though it tended to show that defendant first demanded money when he entered the victims' home. State v. Yelverton, 596 (NCI4th). The trial court did not err in a first-degree murder prosecution in its instructions on self-defense where defendant contended that the jury instructions on self-defense were disorganized, impossible to understand, conceptually confusing, and contained logical inconsistencies. State v. Potts, 678 (NCI4th). Assuming that an instruction on diminished capacity as a defense to burglary would have been appropriate, the trial court sufficiently instructed the jury on this defense when it gave a diminished capacity instruction in relation to the intended felony of first-degree murder. State v. Gay, 696 (NCI4th). The trial court did not commit plain error by failing to instruct on duress as a defense to felony murder predicated upon burglary where the court instructed the jury on duress as a defense to burglary. State v. Gay, INSURANCE 509 (NCI4th). Several principles have evolved from the interpretation of G.S. 20-279.21(b)(3) and G.S. 20-279.21(b)(4): the statutory scheme for liability coverage is essentially vehicle oriented while uninsured and underinsured coverage is essentially person oriented, and G.S. 20-279.21(b)(3) provides for two classes of insureds. Insureds of the first class are covered whether or not they are injured while in the insured vehicle while insureds of the second class are insured only when in the vehicle and only for coverage provided for persons in that vehicle. Harrington v. Stevens, 527 (NCI4th). Several principles have evolved from the interpretation of G.S. 20-279.21(b)(3) and G.S. 20-279.21(b)(4): the statutory scheme for liability coverage is essentially vehicle oriented while uninsured and underinsured coverage is essentially person oriented, and G.S. 20-279.21(b)(3) provides for two classes of insureds. Insureds of the first class are covered whether or not they are injured while in the insured vehicle while insureds of the second class are insured only when in the vehicle and only for coverage provided for persons in that vehicle. Harrington v. Stevens, 528 (NCI4th). A plaintiff was allowed to stack underinsured motorist coverage both interpolicy and intrapolicy where he was injured in an automobile accident with an underinsured motorist and, although defendant contended that the owner must share some benefit before an insured of the first class may be covered, the statute says that a relative living in the same household with the owner of the policy is a "person insured." If a person is a "person insured" under a policy, then he or she should have all the rights of a person insured by the policy. Harrington v. Stevens, Plaintiff was not prevented from stacking underinsured motorist coverage from his brother's and father's policies by the fleet policy provision of G.S. 20-279.21(b)(4) even though six vehicles would be stacked and a fleet policy is defined as a policy covering five or more vehicles. Defendant does not contend that any policy in this case was a fleet policy. Ibid. 530 (NCI4th). Defendant Nationwide may not reduce its payments arising from an automobile accident for anything paid under the underinsured motorist coverage on the policy owned by the plaintiff where plaintiff was allowed to stack the coverages owned by his father and brother, with whom he lived, and Nationwide contended that whatever plaintiff receives through those coverages must be reduced by what he received from the tortfeasor's liability coverage and from the underinsured motorist coverage on his own vehicles. Harrington v. Stevens, JURY 142 (NCI4th). The trial court did not abuse its discretion in refusing to permit defendant to ask prospective jurors in a capital trial questions regarding when in their opinion the death penalty would be appropriate, including questions as to whether they would find it impossible to vote for life imprisonment where torture or rape had been involved or whether their general approval of the death penalty would interfere with their ability to consider the existence of mitigating circumstances. State v. Yelverton, 151 (NCI4th). There was no prejudice in a first-degree murder prosecution, even assuming error, where the court did not allow defense counsel to ask prospective jurors whether they felt it should be necessary for the State to show additional aggravating factors before they would vote for the death penalty. State v. Price, 203 (NCI4th). The trial court did not err in the denial of defendant's challenges for cause of a prospective juror who knew the victims and had heard and read about the case and another prospective juror who owned a store near the crime scene, knew defendant's family, and had heard much discussion about the crimes where their voir dire testimony demonstrated a resolve by the jurors to put familiarity and possible prejudice aside and to abide by the law and the trial court's instructions. State v. Yelverton, 227 (NCI4th). The trial court did not err in allowing the State's challenge for cause of a prospective juror because of his capital punishment views where the record shows that any equivocation in the juror's answers resulted from his expressed, conscientious desire to do his duty as a juror and to follow the trial court's instructions in the face of recognizing his personal inability to impose the death penalty. State v. Yelverton, MUNICIPAL CORPORATIONS 30.1 (NCI3d). A provision of the amended Mecklenburg landfill zoning ordinance concerning approval of permit applications by the Charlotte-Mecklenburg Zoning Administrator is facially constitutional because the conditions which must be met prior to issuance of a permit are objective standards which can reasonably be applied by the Zoning Administrator with the assistance of the Director of Engineering if necessary. County of Lancaster v. Mecklenburg County, There was no impermissible conflict of interest where Mecklenburg County applied for a landfill permit to the Charlotte-Mecklenburg Zoning Administrator. Absent a showing of undue influence, the fact that an application is made by an employing unit of government does not in and of itself constitute impermissible bias for administrative zoning decisions. Ibid. 30.6 (NCI3d). An unappealed summary judgment in 1988 declaring Mecklenburg County's 1985 landfill zoning ordinance unconstitutional was not dispositive of this case because the 1988 judgment is binding only as to the procedure under the ordinance as it existed prior to the 1989 amendments, the amendments followed the directives of the 1988 judgment, and the fact that the 1988 judgment held that the County had failed to make a sufficient showing to support the findings of compliance with the then effective state regulations has no bearing upon the 1990 permit application. County of Lancaster v. Mecklenburg County, ROBBERY 4.4 (NCI4th). There was sufficient evidence of attempted armed robbery where defendant and his accomplices went to the residence of Sheila Twiggs to rob Mexicans of money and drugs. Although defendant contended that illegal drugs and money from the sale of illegal drugs are not protected property and that the attempt to steal such property is not a crime, contraband may be the subject of armed robbery. State v. Oliver, STATE 1.2 (NCI3d). Although it appears that the Public Records Act provides that recordings of communications or reports by two officers during a disturbance in which one of the officers was killed are public records which should be subject to inspection and copying by the plaintiff, Article 48 of Chapter 15A of the General Statutes, which provides specifically for discovery in criminal actions, governs in this case because the copies of recordings the plaintiff seeks to obtain were unquestionably gathered by the Winston-Salem Police Department in the course of a criminal investigation and are part of the State's file in a pending criminal action. Piedmont Publishing Co. v. City of Winston-Salem,