CONTENTS BY TYPE OF CASES FILED 19 NOVEMBER 1992 APPEAL AND ERROR 443 (NCI4th). Where no assignment of error corresponds to an issue presented, that issue is not properly presented for review by the appellate court. State v. Thomas, CONSTITUTIONAL LAW 226 (NCI4th). There was no double jeopardy violation in the second trial of a murder defendant following a mistrial for the State's failure to comply with discovery where the first trial court had found that there had been a breakdown in communication but no prosecutorial misconduct and the defense attorneys did not object after being invited to do so. State v. Walker, 309 (NCI4th). A defendant being tried for the murder of a child was not deprived of effective assistance of counsel where the Supreme Court believed that defense counsel's closing argument had been that defendant was innocent of all charges but that defendant had slapped the victim and, if he were to be found guilty of anything, it would be involuntary manslaughter. State v. Greene, 342 (NCI4th). Defendant's unwaivable state constitutional right to presence at his capital trial was not violated by forty-nine bench conferences from which defendant was excluded where defendant was present in the courtroom and each bench conference was attended by defendant's attorneys. State v. Cummings, CRIMINAL LAW 507 (NCI4th). The statute requiring recordation of "all statements from the bench" does not apply to private bench conferences between the trial judge and attorneys for both sides. State v. Cummings, 518 (NCI4th). The trial court did not abuse its discretion by denying a murder defendant a mistrial based upon the State's failure to provide discovery material regarding tests performed by the State's investigators where one test was inconclusive and any advantage which may have been gained by defendant through greater exposition of the second could have been countered by the State. State v. Walker, The trial court did not err in a murder prosecution by denying defendant's motion for a mistrial based upon the State's failure to make defense counsel aware of an SBI finding that the belt buckle worn by defendant had two small drops of blood on it. Ibid. 777 (NCI4th). The trial court erred in failing to give an alibi instruction as requested by defendant where defendant presented evidence that he was in Charlotte at the time the crimes were committed in Asheville. State v. Hood, 778 (NCI4th). Defendant had the burden of showing a reasonable possibility that the trial court's erroneous failure to instruct on alibi was prejudicial. State v. Hood, Defendant was not prejudiced by the trial court's erroneous failure to instruct on alibi in a first degree murder and felonious assault prosecution where the court's charge afforded defendant the same benefits a formal charge on alibi would have afforded. Ibid. 838 (NCI4th). The trial court did not err in a murder prosecution by giving an instruction on false, contradictory or conflicting statements where the inconsistencies brought to light by the comparison between certain statements of defendant and the evidence at trial were not completely irrelevant and had substantial probative force, tending to show consciousness of guilt. State v. Walker, 860 (NCI4th). Assuming the trial judge failed properly to instruct a prospective juror who inquired about the length of time someone sentenced to life imprisonment would actually serve, the appropriate relief would be a new sentencing proceeding, not a new trial. State v. Cummings, 884 (NCI4th). Defendant's request for an alibi instruction at the charge conference was sufficient to warrant full review on appeal of the court's failure to instruct on alibi although defense counsel did not object to the charge when it was given. State v. Hood, 1242 (NCI4th). The trial court did not err by failing to find as a mitigating factor for felonious assault that the relationship between defendant and the victim was extenuating or that defendant acted under strong provocation based on evidence of his relationship with a murder victim shot by defendant at the same time he shot the assault victim. State v. Hood, 1347 (NCI4th). The trial court did not err in submitting the course of conduct aggravating circumstance to the jury in a first degree murder prosecution based on defendant's murder of the victim's sister some twenty-six months after the victim's murder. State v. Cummings, 1352 (NCI4th). A defendant sentenced to death for first degree murder is entitled to a new sentencing hearing because of McKoy error in the trial court's instructions requiring unanimity for mitigating circumstances. State v. Cummings, 1355 (NCI4th). The trial court erred during the capital sentencing portion of a murder prosecution by failing to submit the mitigating circumstance of no significant history of prior criminal activity where the evidence showed no record of criminal convictions and evidence of prior history of criminal activity was limited to use of illegal drugs and theft of drugs and credit cards to support the drug habit. State v. Mahaley, DEDICATION 12 (NCI4th). The Supreme Court disavowed as superfluous the Court of Appeals' discussion of public user law in Bumgarner v. Reneau, 105 N.C. App. 362. Bumgarner v. Reneau, DISCOVERY AND DEPOSITIONS 62 (NCI4th). The trial court did not abuse its discretion by excluding a deed from an action seeking an injunction barring interference with a claimed right of way where defendants filed a request for documents directed toward discovery of the basis for the claim, plaintiffs responded with another deed relevant to a prescriptive easement theory, and during the trial produced the deed in question, which supported a public user theory. Bumgarner v. Reneau, EVIDENCE AND WITNESS 84 (NCI4th). Evidence that a murder victim's wife had recently suffered a heart attack was relevant and admissible to show why she and the victim had communicated with each other by telephone, causing her to know that he was killed after 3:45 p.m. State v. Hucks, 252 NCI4th). The trial court in a first degree murder prosecution did not err in allowing the State to ask three witnesses whether they were aware of an assault committed by defendant twenty-five years earlier after defendant's attorneys had elicited testimony from the witnesses that they had never known defendant to be a violent person. State v. Cummings, 305 (NCI4th). Evidence in a first degree murder prosecution concerning the murder of the victim's sister was admissible under Rule of Evidence 404(b) to show defendant's identity and method of operation. State v. Cummings, 351 (NCI4th). The trial court did not err in the prosecution of defendant for murdering her husband by admitting evidence regarding defendant's admission to two drug treatment facilities, her theft of credit cards and money, and her affair with a co-conspirator. State v. Mahaley, 621 (NCI4th). Defendant waived the right to contest the admissibility of a witness's identification of defendant at trial on the ground that it was the result of unconstitutionally suggestive pretrial identification procedures by failing to challenge this evidence by one of the methods provided in G.S. Ch. 15A, Art. 53. State v. Hucks, 875 (NCI4th). The trial court did not err by admitting in a murder prosecution hearsay statements by the victim concerning defendant's prior physical assaults against her. State v. Walker, 1143 (NCI4th). The trial court did not err by admitting the testimony of a co-conspirator regarding statements made by another co-conspirator incriminating defendant where defendant contended that the statements were made before the conspiracy was formed but there was evidence to the contrary. State v. Mahaley, 1218 (NCI4th). A murder defendant's third statement to officers was not coerced and was voluntary where a reasonable person in defendant's position would not have believed that he was in custody; defendant was not held incommunicado or deprived of food or drink; defendant was not deprived of his free will when confronted with apparent inconsistencies in his statements; and officers did not intimate that defendant could avoid prosecution or that any sentence imposed would be lessened if he confessed. State v. Greene, A murder defendant's fourth statement was not involuntary based on the totality of the circumstances where the trial court's findings that defendant was advised of his rights, that he understood and waived each right, and that he was alert, sober and coherent were supported by competent evidence. Ibid. 1227 (NCI4th). Although a murder defendant's first statement should have been suppressed under the presumption of involuntariness rule of Miranda, his second and third statements were properly admitted because there was no evidence that the first statement had been induced by promises or threats. State v. Greene, 1240 (NCI4th). There was no prejudicial error in a prosecution for the murder of a child in the admission of a statement made by defendant at a police station where defendant was detained and not advised of his Miranda rights where the statement was exculpatory and other inculpatory statements were properly admitted. State v. Greene, A murder defendant's statements to officers were not the result of an unlawful seizure where defendant was not in custody when two of the statements were made and the third was made after a lawful arrest. Ibid. A trial court did not err by concluding that a murder defendant was not in custody for Miranda purposes when she gave three statements at the police station where the court's findings were amply supported by substantial evidence tending to show that defendant never indicated that she wanted to terminate an interview, that the officers continuously informed the defendant that she was free to leave at any time during the interviews, and that she understood that she was free to go and was not required to make a statement. State v. Mahaley, 1252 (NCI4th). Defendant invoked his right to counsel during custodial interrogation when he responded "I don't know" to an officer's question as to whether he would like to waive his right to counsel and responded "No, because I don't know how much I want to tell you" when asked if he would sign a waiver of counsel form, and his subsequent incriminating statement made without counsel when the officer and the district attorney reinitiated the interrogation is presumed to be involuntary and inadmissible. State v. Morris, The trial court did not err in a murder prosecution by denying defendant's motion to suppress an inculpatory statement made while in custody where defendant indicated that he wanted to waive his rights, signed a waiver form in the place indicating that he did not want to waive his rights, was questioned by officers as to whether that was intentional, and then marked out his first signature, waived his rights and made a statement. State v. McKoy, 1662 (NCI4th). The trial court in a first degree murder case did not abuse its discretion in the admission of photographs belonging to defendant of several women acquaintenances posing nude, including the victim's sister, where the State used the photographs to demonstrate a pattern of behavior to explain the deaths of the victim and her sister. State v. Cummings, 1694 (NCI4th). The trial court in a first degree murder prosecution did not abuse its discretion in the admission of twenty-three photographs of the autopsies of the victim and her sister and the graves in which the bodies were found. State v. Cummings, The trial court did not err in a murder prosecution by admitting into evidence photographs of the victim to illustrate the testimony of the medical examiner with respect to the location and condition of the body. State v. Mahaley, 3172 (NCI4th). There was no prejudice in a prosecution for the murder of a child in the admission of testimony from an SBI agent corroborating the testimony of an inmate to whom defendant had made incriminating remarks. State v. Greene, HOMICIDE 43 (NCI4th). The felony murder rule in G.S. 14-17 does not establish a presumption of premeditation and deliberation in violation of due process and equal protection because premeditation and deliberation are not elements of felony murder. State v. Thomas, 200 (NCI4th). The trial court properly denied defendant's motions to dismiss a charge of first degree murder for insufficient evidence where the evidence suggested that the victim was either shot by her lover in cold blood or that she took her own life in his presence. State v. Walker, 240 (NCI4th). The trial court did not err by submitting first degree murder to the jury where there was substantial evidence that defendant acted in furtherance of a conspiracy to murder her husband. State v. Mahaley, 244 (NCI4th). There was substantial evidence from which the jury could find that defendant shot and killed his former girlfriend with premeditation and deliberation so as to support his conviction of first degree murder. State v. Hood, 245 (NCI4th). The circumstantial evidence of premeditation and deliberation was sufficient to submit first degree murder to the jury where defendant contended that the victim committed suicide in his presence but there was evidence indicating that there was a conflict between defendant and the victim prior to her death; that defendant mercilessly waited for an hour after the shooting before seeking medical care for the victim; and that defendant was avoiding the truth in his rendition of the facts. State v. Walker, 253 (NCI4th). The State's evidence was sufficient to support the jury's verdict finding that defendant killed the victim with premeditation and deliberation based on evidence that defendant beat the victim into submission, inserted his hand into the victim's vagina and pulled out the victim's organs, dragged her into the woods, and left her helpless and bleeding to death. State v. Thomas, The trial court did not err by submitting to the jury the charge of first degree murder based on premeditation and deliberation where there was evidence that defendant delivered several hard blows to the child victim's head during a brutal beating. State v. Greene, 380 (NCI4th). The trial court did not err in a murder prosecution by not charging on self-defense based on the defense of a third person where there was insufficient evidence of necessity. State v. McKoy, 489 (NCI4th). The trial court did not err in instructing the jury that it could infer premeditation and deliberation from lack of provocation by the victim. State v. Thomas, 552 (NCI4th). The trial judge in a first degree murder prosecution did not err in refusing to instruct the jury on the lesser included offense of second degree murder where there was no evidence to negate the elements of premeditation and deliberation other than defendant's denial. State v. Cummings, There was no evidence in a first degree murder prosecution showing a lack of premeditation, deliberation and intent to kill so as to require the trial court to instruct the jury on second degree murder where the evidence showed that defendant beat the victim into submission, inserted his hand into the victim's vagina and pulled out the victim's organs, dragged her into the woods, and left her helpless and bleeding to death. State v. Thomas, The jury's findings of the emotional disturbance and impaired capacity mitigating circumstances did not negate premeditation and deliberation so as to require an instruction on second degree murder. Ibid. INDIGENT PERSONS 19 (NCI4th). The trial court did not err in denying an indigent defendant's request for a court-appointed psychiatrist to assist him in his trial for first degree murder and felonious assault. State v. Hood, INSURANCE 527 (NCI4th). Where the injured party was merely a guest in one of the vehicles covered by an automobile insurance policy, she was a "Class II" insured for purposes of UIM coverage. Nationwide Mutual Ins. Co. v. Silverman, 528 (NCI4th). The UIM coverages provided in an automobile liability policy which listed two vehicles may not be stacked to compensate a "Class II" insured person for injuries sustained in an automobile accident. Nationwide Mutual Ins. Co. v. Silverman, INTOXICATING LIQUOR 43 (NCI4th). The trial court did not err by dismissing plaintiff's complaint where decedent was killed after losing control of his vehicle and striking a bridge abutment and plaintiff, the administratrix of the estate, brought an action based on serving alcohol to an intoxicated person. Plaintiff's negligence claim would be barred by contributory negligence, and, to the extent that the allegations in the complaint establish more than ordinary negligence by defendant, they establish a similarly high degree of contributory negligence by decedent. Sorrells v. M.Y.B. Hospitality Ventures of Asheville, JURY 7.11 (NCI3d). Any error by the trial judge in excluding a prospective juror in a capital trial because of his death penalty views affects only the sentencing phase of the trial. State v. Cummings, RAPE AND ALLIED OFFENSES 5 (NCI3d). The State presented sufficient evidence of serious personal injury other than the fatal injury to support defendant's conviction of first degree sexual offense. State v. Thomas,