{ "id": 8527166, "name": "STATE OF NORTH CAROLINA v. JAMES E. JEFFRIES", "name_abbreviation": "State v. Jeffries", "decision_date": "1982-01-05", "docket_number": "No. 8125SC165", "first_page": "269", "last_page": "291", "citations": [ { "type": "official", "cite": "55 N.C. App. 269" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "215 S.E. 2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565031 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0113-01" ] }, { "cite": "185 S.E. 2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570854 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0202-01" ] }, { "cite": "275 S.E. 2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565360 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0223-01" ] }, { "cite": "93 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219561 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0380-01" ] }, { "cite": "273 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569816 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0591-01" ] }, { "cite": "261 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574152 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0151-01" ] }, { "cite": "414 U.S. 874", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11762922, 11762669, 11763119, 11762751, 11762997, 11762845, 11763196, 11762557, 11762495 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/0874-06", "/us/414/0874-03", "/us/414/0874-08", "/us/414/0874-04", "/us/414/0874-07", "/us/414/0874-05", "/us/414/0874-09", "/us/414/0874-02", "/us/414/0874-01" ] }, { "cite": "195 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558380 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0249-01" ] }, { "cite": "238 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565230 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0462-01" ] }, { "cite": "84 S.Ct. 691", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1964, "opinion_index": 0 }, { "cite": "11 L.Ed. 2d 622", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "376 U.S. 927", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379491, 379206, 379272, 379529, 379689, 379182, 379870, 379612, 379838, 379487 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/us/376/0927-08", "/us/376/0927-10", "/us/376/0927-02", "/us/376/0927-07", "/us/376/0927-04", "/us/376/0927-03", "/us/376/0927-09", "/us/376/0927-05", "/us/376/0927-06", "/us/376/0927-01" ] }, { "cite": "122 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "256 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571257 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/256/0099-01" ] }, { "cite": "191 S.E. 2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549200 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0140-01" ] }, { "cite": "565 F. 2d 81", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 898429 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f2d/565/0081-01" ] }, { "cite": "382 F. Supp. 630", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3312531 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f-supp/382/0630-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "158" }, { "page": "1935" } ], "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "408 U.S. 204", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782725 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/408/0204-01" ] }, { "cite": "18 U.S.C. \u00a7 3503", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 4, "opinion_index": 0 }, { "cite": "97 S.Ct. 1646", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 0 }, { "cite": "52 L.Ed. 2d 357", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "430 U.S. 966", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12161696, 12161732, 12161639, 12161655, 12161673, 12161642, 12161707, 12161649, 12161746, 12161685, 12161719, 12161663 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/430/0966-08", "/us/430/0966-11", "/us/430/0966-01", "/us/430/0966-04", "/us/430/0966-06", "/us/430/0966-02", "/us/430/0966-09", "/us/430/0966-03", "/us/430/0966-12", "/us/430/0966-07", "/us/430/0966-10", "/us/430/0966-05" ] }, { "cite": "552 F. 2d 833", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 974962 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/f2d/552/0833-01" ] }, { "cite": "170 S.E. 2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559842 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0670-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "276 S.E. 2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "301 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571234, 8571204, 8571271, 8571306, 8571166 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/301/0723-03", "/nc/301/0723-02", "/nc/301/0723-04", "/nc/301/0723-05", "/nc/301/0723-01" ] }, { "cite": "270 S.E. 2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 14", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519255 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0014-01" ] }, { "cite": "271 S.E. 2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565925 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0279-01" ] }, { "cite": "176 S.E. 2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563929 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0236-01" ] }, { "cite": "243 S.E. 2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 21", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560930 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0021-01" ] }, { "cite": "425 U.S. 341", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176644 ], "weight": 5, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/425/0341-01" ] }, { "cite": "365 U.S. 534", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167547 ], "weight": 3, "year": 1961, "opinion_index": 0, "case_paths": [ "/us/365/0534-01" ] }, { "cite": "259 S.E. 2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572844 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0502-01" ] }, { "cite": "429 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7010 ], "weight": 4, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/429/0492-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 1773, "char_count": 52324, "ocr_confidence": 0.827, "pagerank": { "raw": 2.4204183222851794e-07, "percentile": 0.80094380019839 }, "sha256": "2f9ed73d1451f8d841b1e57586d1405273ed8c5cc724d76dd46741594765d823", "simhash": "1:873d49337400b8c7", "word_count": 8523 }, "last_updated": "2023-07-14T17:04:47.759339+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Morris and Judge VAUGHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES E. JEFFRIES" ], "opinions": [ { "text": "HILL, Judge.\nDefendant brings forward seven assignments of error. The trial of the case as well as the issues on appeal are complex. We have considered all of defendant\u2019s assignments, and find no error in the trial.\nI.\nDefendant first contends that his right against self-incrimination was violated when the trial court admitted into evidence incriminatory statements which defendant made to law enforcement officers. Defendant contends that these statements were made without the requisite constitutional warnings and that they were induced by misleading police statements and false police promises that the statements would be kept in confidence.\nIn Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), the Supreme Court held that the prosecution may not use either exculpatory or inculpatory statements which result from custodial interrogation of a defendant unless the prosecution can show the use of procedural safeguards which effectively secure the privilege against self-incrimination. \u201c[B]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.\u201d Id. However, \u201c[pjolice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.\u201d Oregon v. Mathiason, 429 U.S. 492, 50 L.Ed. 2d 714, 97 S.Ct. 711 (1977). In Mathiason, custody was characterized as a restriction on one\u2019s freedom or detention in a \u201ccoercive environment\u201d.\nOur Supreme Court has analyzed custody by applying an objective test which involves determining whether a reasonable person would believe under the circumstances that he is free to leave the place in which he is being questioned. State v. Perry, 298 N.C. 502, 259 S.E. 2d 496 (1979). Citing Mathiason, supra, the Court focused on three time frames to determine whether a reasonable person would believe that he was free to leave the place of interrogation.\nevents occurring prior to the questioning, including the fact that the defendant had voluntarily appeared in response to a written request; [2] events happening during the questioning, including the fact that defendant was told at the outset he was not under arrest but that he was a suspect; and [3] events taking place after the questioning, including the fact that defendant was allowed to leave the parole office unhindered even though he had confessed to the burglary.\nState v. Perry, supra.\nIn light of the foregoing principles, we conclude that Jeffries was not in custody when he made his inculpatory statements. When the State sought to introduce statements which the defendant had made to S.B.I. Agent Stout, the defendant objected, and an extensive voir dire was conducted. Upon defendant\u2019s motion, the trial judge ordered each State witness for the voir dire sequestered. Evidence adduced on voir dire tended to show that defendant came voluntarily and unaccompanied to the Law Enforcement Center in Shelby. He submitted to a polygraph test, and even though not in custody, was read his rights by Agent Stout. Defendant signed a waiver acknowledging that he was free to end the test and to leave at any time. His meeting with Stout lasted from shortly after 9 o\u2019clock a.m. until approximately 11:45 a.m. Stout testified that defendant\u2019s appearance was good and that he did not seem to be under the influence of drugs. Defendant was offered and given coffee twice. After completing the polygraph test, Stout informed defendant that, in his opinion, defendant was not telling the truth. At this point, the defendant made his statement to Stout. After defendant made the statement to Stout, Agent Lee again advised defendant of his constitutional rights.\nAccording to Agent Lee\u2019s testimony on voir dire, the defendant was not under arrest during his questioning on 31 May 1979. When Lee told defendant that he and Agent Bradley wanted to talk to him but that the defendant could leave anytime, defendant indicated he wanted to talk to them. When Lee told defendant that he had to advise him of his rights, defendant said it was not necessary. After Lee indicated to defendant that he might be arrested for the fire, defendant gave his statement. When Agent Lee was ready to leave, defendant made a request to talk to Agent Bradley with whom Lee left him. At 2:30 p.m., Lee checked to see if the defendant needed anything and to tell the defendant he could leave if he wanted to. The defendant did not leave, nor did he request anything. At 4:00 p.m., Lee returned to the room and asked the defendant if he were ready to leave, and at this time the three men left and walked to defendant\u2019s car in the parking lot. The defendant was not arrested until some three weeks later.\nNo threats, no promises of rewards or hope for rewards were made to defendant. Neither was there any promise or commitment that defendant\u2019s statement would be held in confidence. Defendant was not deprived of sustenance. The evidence on voir dire shows no \u201ccoercive environment\u201d. Defendant, free to leave at any time, was not in custody when he made his inculpatory statements.\nThe officers questioning defendant advised him several times of his constitutional rights, as would have been necessary in a custodial environment. Prior to administering the polygraph test, Agent Stout informed defendant of his rights, and defendant, a college graduate, signed a waiver which read, in pertinent part:\nI, James E. Jeffries, being 32 years of age and of sound mind voluntarily without threats, duress, coercion, force, promises of immunity or reward and understandingly agree and stipulate to take a polygraph examination for the mutual benefit of myself, the State Bureau of Investigation and Shelby Police Department, I fully realize that I am not required to take this examination, I may first consult with an attorney or anyone I wish before either signing this form or taking the examination, I have the right to remain silent the entire time that I am here, anything I may say can be used against me in any court of law.\nI have the right to talk to a lawyer for advice before answering any questions and to have him present during questioning. If I cannot afford an attorney and desire one, an attorney will be appointed for me before any questioning if I wish. If I decide to answer questions now without a lawyer present, I will still have the right to stop answering at any time. I also have the right to stop answering at any time until I have talked to a lawyer, and I have the opportunity to exercise all these rights at any time I wish during the entire time I am here. Nevertheless, I voluntarily request and authorize A. S. Stout to proceed with the examination.\nI do hereby authorize the State Bureau of Investigation, its officers, and/or employees to disclose both orally and in writing the examination results and opinions to employees and/or representatives of the Shelby Police Department. I have had the above read to me and fully understand the true contents thereof.\nWitness by myself and signed by Mr. Jeffries. This examination was concluded at 11:45 a.m. on the above date. I completely reaffirm my above agreement. I knowingly and intelligently continue to waive all rights, including those listed in the second paragraph above and I willingly made all statements that I did. I also certify that during the entire time I was well treated, submitted myself freely to the examination knowing that I could stop at any time so desired by merely saying I wished to stop or that I wished to consult an attorney. I remained of my own free will knowing that I could leave this room at any time I so desired and that there were no threats, promises, or any harm done to me during the entire period I have been here, either in connection with the examination or the signing of this consent.\nAfter the test, Agent Lee offered to read defendant his rights, but he indicated then to Lee and later to Richardson that he understood those rights.\nDefendant also contends that the statements he made to the law enforcement officials were involuntary and should have been suppressed. We must also disagree with this contention.\nIn ruling on the admissibility of an inculpatory statement, the trial judge should focus on \u201cthe question whether the behavior of the State\u2019s law enforcement officials was such as to overbear petitioner\u2019s will to resist and bring about confessions not freely self-determined . . .\u201d. Rogers v. Richmond, 365 U.S. 534, 5 L.Ed. 2d 760, 81 S.Ct. 735 (1961). When defendant claims that he made a statement involuntarily, it is the duty of an appellate court to examine the record and to make a determination on the ultimate issue of voluntariness. Beckwith v. United States, 425 U.S. 341, 48 L.Ed. 2d 1, 96 S.Ct. 1612 (1975). We recognize that a person\u2019s will may be overcome by hope or fear, or by physical or psychological coercion. In the instant case, however, we find no evidence that defendant\u2019s will to resist was overcome by coercion or other devious means.\nDefendant came voluntarily to the Law Enforcement Center. He submitted voluntarily to a polygraph test, and, when he was told that the person administering the test did not believe he was telling the truth, defendant made the first of three similar statements. The evidence was uncontradicted that defendant was reminded generally of his rights, that he actively declined to have them read to him again, and that he declined to exercise those rights. Defendant was neither threatened nor offered any reward or hope of reward. While the defendant makes much of the length of time he remained at the Center, there was evidence that he was told on several occasions that he could go. He was offered food and drink, and he appeared normal. He was free to leave and did so, finally, at 4:00 p.m.\nDefendant also argues that Lee\u2019s partner Bradley coerced him into making statements in confidence and that, thereafter, the defendant was coerced into repeating the statement to Agent Stout. In response to this, we note first that the trial court refused to allow the State to introduce the statement made to Bradley. Secondly, defendant\u2019s theory that such \u201cconfidence\u201d carried into his statement to Stout is unsupported by the evidence. These assignments are overruled.\nII.\nWe next consider defendant\u2019s two broad assignments of error relating to the admission of evidence. He first assigns as error the admission of \u201cexhibits and related testimony arising out of discovery materials which the prosecution failed to timely and meaningfully furnish to the defense in compliance with the court\u2019s pretrial discovery orders and by sanctioning [the] prosecutorial concealment of exculpatory material\u201d. Defendant notes 108 exceptions he took to the introduction of such evidence which included cans of vinyl flooring, tests conducted by witnesses Maddry and Grotts, reports by witness Kelleher, numerous photographs, and a tape recording of the fire dispatcher\u2019s conversation with witness Skinner.\nUnder Article 48 of Chapter 15A of our General Statutes, a party seeking discovery must first request in writing that the other party comply voluntarily with the discovery request before filing any motion with a judge. G.S. 15A-902(a). If the other party fails, within seven days, to respond or to respond adequately, then the first party may file a motion for discovery concerning any matter the second party failed to furnish or furnished inadequately. Id. Under G.S. 15A-903(d) and (e), on defendant\u2019s motion, the trial court is directed to order the prosecutor to allow the defendant to inspect and copy or photograph documents, tangible objects, and reports of examinations and tests.\nThis record contains neither defendant\u2019s initial G.S. 15A-902 letter, nor defendant\u2019s motion. The record does, however, contain the trial court\u2019s order that the State allow the defendant to inspect, copy, and photograph certain documents and pieces of evidence. Sanctions for failure of the State to comply with the order are governed by G.S. 15A-910, which allows the court, in addition to exercising its contempt powers, to:\n(1) Order the party to permit the discovery or inspection, or\n(2) Grant a continuance or recess, or\n(3) Prohibit the party from introducing evidence not disclosed, or\n(4) Enter other appropriate orders.\nThe trial court\u2019s action in such matters is discretionary. Id. See State v. Stevens, 295 N.C. 21, 243 S.E. 2d 771 (1978).\nDefendant argues that the trial judge should have exercised his discretion under G.S. 15A-910(3) to exclude the cans of vinyl flooring. When the State sought to introduce the evidence, defendant entered a general objection which was overruled. Defendant failed to state the basis of his objection, and he failed to request any of the other remedies available to him under G.S. 15A-910. In this regard, we feel compelled to emphasize again the complexity of this trial, in which well over 100 exhibits were introduced. There has been no allegation that the prosecuting attorneys acted in bad faith. Based on these facts, we find no abuse of the trial court\u2019s discretion in allowing the State to introduce the cans of vinyl flooring into evidence.\nAs to defendant\u2019s arguments concerning tests conducted by witnesses Maddry and Grotts, the record shows that the trial court conducted an in camera examination concerning these tests as well as some tests conducted by witness Kelleher. The trial judge found that defendant was not prejudiced by the State\u2019s failure to furnish copies of tests which indicated that the fire did not originate in the building\u2019s electrical system or furnace. The court offered the defendant a reasonable time period in which to review the reports. We find no abuse of discretion by the trial court.\nIt is difficult to determine from the record which of the numerous photographs offered by the State had been seen by the defendant\u2019s counsel prior to trial. None of the photographs have been tendered to this Court for our review. In light of this and in view of the fact that the court permitted defense counsel time to review the photographs, we find that the trial court did not abuse its discretion in allowing the photographs into evidence.\nThe final item about which defendant specifically complains is the tape recording of witness Skinner\u2019s phone call reporting the fire. The record shows, however, that defense counsel stated that he had no objection to the playing of the portions of the tape actually played. We find no error.\nWe turn now to the trial court\u2019s admission of testimony which defendant contends was \u201cirrelevant, immaterial, incompetent, remote, prejudicial and inflammatory\u201d. Defendant contends the admission of such testimony violated his constitutional rights to a fair trial, to due process of law, and to equal protection of the laws. First, defendant contends that the trial court erred by permitting certain State\u2019s witnesses to testify in detail about the appearance of the five men who died fighting the fire, to give misleading and confusing testimony about the location of the bodies, and to introduce inflammatory photographs and film footage.\nThe excepted-to photographs and film footage are not included in the record. This is a violation of App. R. 9(b)(3) and makes it impossible for us to rule on the admissibility of the evidence. As to allowing the testimony of the eye witnesses, we can find no error. Witnesses Hollifield, Lynch and Humphries all observed the events occurring at the Gardner Building on 25 May 1979. Witness Smith investigated the area two days later. While the witness\u2019 descriptions of the fire and its victims are not pleasant, the testimony was in no way incompetent or irrelevant to the issues being tried. Neither do we find repetition which was prejudicial or inflammatory.\nSecondly, defendant contends that the court erred in allowing two firemen to speculate about the meaning of physical phenomena at the fire scene. Captain Rogers was allowed to testify that steam he observed was \u201can indication that they had hit the seat of the fire with the water in the back\u201d. It is unclear from the testimony where the steam was coming from, and, when the prosecutor attempted to have Captain Rogers place the \u201cseat of the fire\u201d at Jeffries\u2019, the court sustained defendant\u2019s objection. We therefore find no prejudicial error. Fireman Price was allowed to testify that the smoke coming from Jeffries\u2019 smelled like \u201cburning oil or some type of petroleum product or chemical\u201d. This testimony was admissible under the general rule that opinion evidence is permissible when the facts on which the opinion is based cannot be described in a manner which would allow the jury to draw their own inferences. See, generally, 1 Stansbury\u2019s North Carolina Evidence (Brandis Rev. 1973), \u00a7 125. These assignments are overruled.\nIII.\nDefendant also assigns error to the admission of witness Paul\u2019s testimony, identifying defendant as one of two men who had shopped for paint thinners in a local paint store several days before the fire. Defendant argues that the trial court should have excluded the testimony ex mero motu because the identification stemmed from a photographic display so egregiously and impermissibly suggestive as to violate defendant\u2019s constitutional rights. Upon defendant\u2019s objection to the identification testimony, the court conducted a voir dire examination of Paul and the Shelby Police Officer to whom Paul identified defendant. At the end of the voir dire, the following dialogue took place between counsel for defendant and the trial judge:\nMR. RANDALL: I have conferred with my client and the investigator in this case and I request, your Honor, to be permitted to withdraw the motion to suppress and to proceed with the examination of the witness Paul.\nCOURT: Well, now, the court will observe for the record that counsel did in fact confer with the defendant and the investigator in this case and would permit the counsel to withdraw the motion to suppress the in-court identification of the defendant by the witness Paul, and in so doing the court will observe that the identification is of independent origin based solely upon the observations of the witness at the place of business in question, the Cal-Tone Paint Store, and is not based upon any photographic procedure or exhibits illegally or otherwise and that there is nothing of sufficient value to indicate the witness\u2019 identification is mistaken. Call the jury back. The motion is allowed to withdraw the original motion to suppress.\nWhile we do not know why the defense attorney chose to withdraw his objection to Paul\u2019s testimony, we do not believe the trial court is required to second-guess defense counsel, rejecting, ex mero mo tu, what may have been valid strategy on counsel\u2019s part. A defendant may, for whatever reason, waive the benefit of constitutional provisions by express consent. State v. Gaiten, 277 N.C. 236, 176 S.E. 2d 778 (1970), State v. McDowell, 301 N.C. 279, 271 S.E. 2d 286 (1980). This assignment is overruled.\nIV.\nIn defendant\u2019s fourth assignment of error, he contends that the court erred in refusing to allow him to cross-examine effectively several of the State\u2019s witnesses. Under this assignment, defendant lists nearly 100 exceptions he took to the exclusion of testimony. He failed, however, to present an argument as to all of the exceptions, and those which are not argued are considered abandoned. App. R. 28(b)(3). Of the exceptions defendant does argue, he has failed to show in the record what the excluded testimony would have been. See generally, 1 Stansbury\u2019s, supra, \u00a7 26. It is therefore impossible for this Court to determine what evidence was excluded and whether such exclusion was prejudicial to defendant. See State v. Brooks, 49 N.C. App. 14, 270 S.E. 2d 592 (1980) disc. rev. denied and ap. dismissed, 301 N.C. 723, 276 S.E. 2d 285 (1981). We overrule this assignment.\nDefendant also assigns error to the manner in which he was required to cross-examine William Kelleher, an expert in the field of fire origin and arson investigation. Kelleher was the final witness called by the State. On 11 April 1980, after Kelleher had almost completed his direct testimony and after court had recessed for the day, Kelleher was admitted to the hospital with a possible case of angina, a coronary condition. As a result of this development, on 12 April, the court excused the jury indefinitely until Kelleher was found to be able to undergo the remainder of direct examination and cross-examination. On 14 April, the trial judge noted that he had been informed by the witness\u2019 treating physician that Kelleher had not suffered a myocardial infarction, but that he was suffering from angina, was in a stable condition, and could not return to court for at least two weeks. Upon inquiry by the court, the treating physician stated that Kelleher would be able to testify before videotape at the hospital if the physician could observe him.\nOver defense counsel\u2019s objection, the trial court decided to videotape the remainder of Kelleher\u2019s testimony in the hospital. Defendant contends that this ruling violated his Sixth and Fourteenth Amendment rights to cross-examine and confront witnesses against him. See Pointer v. Texas, 380 U.S. 400, 13 L.Ed. 2d 923, 85 S.Ct. 1065 (1965).\nNorth Carolina courts have fully acknowledged the absolute right of the accused to cross-examine adverse witnesses. See e.g., State v. Bumper, 275 N.C. 670, 170 S.E. 2d 457 (1969). However, defendant\u2019s assignment of error raises a novel question for this Court. Thus, we look to other jurisdictions for assistance in determining this issue.\nIn United States v. King, 552 F. 2d 833 (9th Cir., 1976), cert. denied 430 U.S. 966, 52 L.Ed. 2d 357, 97 S.Ct. 1646 (1977), defendants asserted that the trial court\u2019s admission of the depositions of two absent witnesses denied them their rights of confrontation. The government\u2019s case depended largely upon the testimony of two unindicted co-conspirators who were serving terms of imprisonment in Japan and who were therefore unavailable to testify at trial. Videotaped depositions were taken pursuant to 18 U.S.C. \u00a7 3503 at the Japanese prison, to which defendants and their attorneys traveled at government expense. Upset by restrictions imposed by the Japanese government, however, defendants and their counsel withdrew during the fourth day and returned to the United States. The government continued, completing its examinations. Defendants objected to the use of the videotapes, alleging, inter alia, that 18 U.S.C. \u00a7 3503 was unconstitutional in its application and on its face because the Supreme Court had never expressly authorized the use of an absent witness\u2019s deposition in lieu of trial testimony. In rejecting defendants\u2019 argument, the court noted that the Supreme Court had observed that \u201cprior-recorded testimony has been admissible in appropriate cases\u201d. Mancusi v. Stubbs, 408 U.S. 204, 33 L.Ed. 2d 293, 92 S.Ct. 2308 (1972). The court in King wrote:\nIn Mancusi, the Court characterized its concern under the confrontation clause as being\nto insure that there \u201care indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,\u201d Dutton v. Evans, (cites omitted), and to \u201cafford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,\u201d .... (cite omitted).\nConfrontation meets the need for adequate reliability and evaluation in that it\n(1) insures that the witness will give his statements under oath \u2014 thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the \u201cgreatest legal engine ever invented for the discovery of truth\u201d; (3) permits the jury that is to decide the defendant\u2019s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.\nCalifornia v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed. 2d 489 (1970).\nUnited States v. King, supra. After analyzing the Green decision, which involved the use of a statement made by a key witness at a preliminary hearing, the King court held that a deposition taken under 18 U.S.C. \u00a7 3503 satisfied procedural safeguards required by the confrontation clause. Under that statute, such depositions are permitted only under \u201cexceptional circumstances\u201d. Use of the testimony obtained is allowed only if the witness meets the following \u201cunavailability\u201d criteria: an authorized person must put the deponent on oath; defendants must be afforded the right to be present during the deposition and to be represented by counsel; as full a scope of examination must be allowed as would be allowed at trial; the entire procedure must be under the authority and supervision of the trial court, and the deposition process must expose the witness to rigorous cross-examination on all issues.\nThe King court also found 18 U.S.C. \u00a7 3503 constitutional as applied, on the grounds that the deponents were under oath, the presentation of the videotaped testimony adequately allowed the jury to observe the demeanor of the witnesses, and that the conditions under which the depositions were taken were not \u201coppressive, intimidating, and frightening,\u201d so as to constitute a denial of defendant\u2019s rights to effective cross-examination.\nIn United States v. LaFatch, 382 F. Supp. 630 (N.D. Ohio, E.D., 1974) rev\u2019d. on other grounds, 565 F. 2d 81 (6th Cir. 1977), in a Supplemental Memorandum opinion, the trial court explained why it allowed the jury to view the videotaped testimony of a key defense witness, the wife of the defendant, who apparently had suffered a heart attack during the trial. Aware of the problems associated with a videotaped presentation, the trial court required measures to be taken to minimize the hospital setting. Those steps included showing only the head and shoulders of the witness, not allowing doctors to be present and omitting any reference to the witness\u2019 condition.\nAlthough the factual situations differ, we find the analyses of King and LaFatch persuasive to our resolution of the question. King began its analysis with a discussion of cases allowing the admission into evidence of prior-recorded testimony. This Court has likewise held that prior-recorded testimony is admissible under certain circumstances. State v. Biggerstaff, 16 N.C. App. 140, 191 S.E. 2d 426 (1972). Holding that the prior-recorded testimony of one of the State\u2019s witnesses, who was available for defendant\u2019s preliminary hearing but who could not be located for defendant\u2019s trial, was admissible, the Court weighed the following factors: the reason for the witness\u2019 unavailability at trial, the diligence of the Sheriff\u2019s inquiry as to the whereabouts of the witness, the fact that defendant had the same counsel at both hearings, the accuracy of the court reporter\u2019s transcription of the witness\u2019 testimony at the preliminary hearing,, and a good faith effort on the part of the State to secure the presence of the witness at the trial. State v. Biggerstaff, supra.\nIn accordance with these opinions, we hold that the admission of a witness\u2019 videotaped testimony in a criminal case does not constitute an inherent violation of defendant\u2019s right to confront witnesses against him. The conditions under which videotaped testimony is allowed, however, must be carefully controlled. First, there must be exceptional circumstances necessitating the procedure. As noted in King, supra, the witness must be unavailable to testify within a period of time after which the trial itself would be subject to mistrial. The videotaped session must be under the control and supervision of the trial judge, and the defendant and his attorney must be allowed to attend. Effective cross-examination by defendant must be unimpeded, and all measures must be taken to eliminate possible prejudicial effects due to location or condition of the witness. Furthermore, the videotape shown to the jury must be clear, allowing the jurors to observe clearly the demeanor of the witness.\nApplying those criteria to the facts of this case, we find that defendant\u2019s trial was in its sixth week when Kelleher, the last witness for the State, was hospitalized. Kelleher\u2019s physician would not allow him to return to the courtroom for at least two weeks, but would allow Kelleher to testify via videotape from the hospital. The trial judge presided over the videotaping session at which defendant, his counsel, and his expert advisor were present. Since the record does not contain a copy of the videotape, we cannot determine whether the court took sufficient steps to minimize any prejudicial effect arising out of the location or the appearance of the witness. We note, however, that since Kelleher was not a victim of the alleged crime, sympathy for his condition would not necessarily translate into prejudice against the defendant. The crucial issue is whether defendant\u2019s attorney was thwarted in his efforts to conduct a vigorous cross-examination of the witness. From the record defense counsel\u2019s cross-examination appears thorough and unrestrained. It filled some 49 pages of the record, and, after it was completed, the trial judge noted to defense counsel that \u201cnot only have you vigorously cross examined the witness Kelleher, but the State . . . would indicate . . . you have done so as you justifiably ought to do.\u201d\nIn summary, we find that the trial court acted in the interest of justice in allowing the videotaped presentation of witness Kelleher\u2019s testimony and that the defendant was allowed full opportunity to conduct a rigorous cross-examination. Defendant\u2019s right to confront witnesses against him was not violated and this assignment is overruled.\nV.\nDefendant\u2019s next assignments of error pertain to the trial court\u2019s instructions to the jury. We first consider defendant\u2019s contention that the court erred in instructing the jury that a fire could be considered a deadly weapon. This charge related only to the question of defendant\u2019s guilt in the felony-murder charge. Since defendant was found guilty of involuntary manslaughter, if this instruction was error, it was harmless. See State v. Casper, 256 N.C. 99, 122 S.E. 2d 805 (1961), cert. denied 376 U.S. 927, 11 L.Ed. 2d 622, 84 S.Ct. 691 (1964).\nNext we consider defendant\u2019s argument that the trial court erred in instructing the jury that a verdict of involuntary manslaughter was permissible. Defendant cites State v. Cates, 293 N.C. 462, 238 S.E. 2d 465 (1977), for the definition of involuntary manslaughter:\nInvoluntary manslaughter is the unintentional killing of a human being without malice, premeditation or deliberation which results from the performance of an unlawful act not amounting to a felony or not naturally dangerous to human life; or from the performance of a lawful act in a culpably negligent way; or from the culpable omission to perform some legal duty. . . .\nDefendant argues that under the State\u2019s theory, defendant and Sammy Guest deliberately set the fire from which the five deaths resulted; thus, the deaths were caused by an unlawful, felonious act. The crime of involuntary manslaughter, being founded upon a non-felonious crime, was, therefore, inconsistent with the evidence and should not have been submitted to the jury.\nWhile we agree that submission to the jury of the offense of involuntary manslaughter was error, we find that it was not prejudicial error. While it is the established rule in North Carolina that the erroneous submission of a lesser-included offense not supported by the evidence is not prejudicial error, State v. Vestal, 283 N.C. 249, 195 S.E. 2d 297, cert. denied, 414 U.S. 874 (1973), our Supreme Court has qualified this rule by applying a harmless error test to the particular facts and circumstances in each case. State v. Ray, 299 N.C. 151, 261 S.E. 2d 789 (1980). In Ray, the defendant was charged with first degree murder; at the close of the evidence, the trial court submitted to the jury verdicts of second degree murder, manslaughter, involuntary manslaughter, not guilty, not guilty by reason of self-defense and defense of another. Defendant was convicted of involuntary manslaughter. All the evidence adduced at trial, however, showed that the defendant intentionally shot the victim; there was evidence of self-defense and defense of another person. In vacating the judgment of the trial court, the court found that if the jury had been required to face squarely the defenses raised by the defendant, there was a reasonable possibility that they would have returned a verdict of not guilty.\nWe emphasize that the result reached here should not be read as casting any doubt on the validity of earlier decisions of this Court or of the Court of Appeals. Our decision today does no more than recognize that a verdict based upon the erroneous submission of a lesser included offense not supported by the evidence does not invariably constitute error favorable to a defendant as a matter of law. Whether such an error is harmless depends instead upon the facts and circumstances peculiar to each case. We hold simply that the facts and circumstances peculiar to the instant case warrant a conclusion that, absent the erroneous submission of involuntary manslaughter, there is a reasonable possibility that the jury would have returned a verdict of acquittal. The error complained of was therefore prejudicial to the defendant. G.S. 15A-1442. . . .\nState v. Ray, supra.\nIn State v. Summitt, 301 N.C. 591, 273 S.E. 2d 425 (1981), defendant, indicted on the charge of first degree rape, complained that the court had erred in submitting to the jury the lesser included offense of second degree rape for which there was no evidence but for which he was convicted. Our Supreme Court stated:\nThe harmless error test, other than in constitutional matters, requires a finding of prejudice to a defendant when there is a reasonable possibility that had the error not been committed a different result would have been reached at the trial.\nIn [the] instant case, defendant\u2019s sole defense was that he did not commit the act upon which the greater and lesser offenses were based. There is no contention that there was anything in the charge to the jury which clouded that defense. Thus, the jury\u2019s verdict finding him guilty of second-degree rape implicitly, but clearly, rejected his defenses that he did not commit the act upon which the charges were based. When the jury discarded defendant\u2019s sole defense, all the evidence pointed to the greater crime of first-degree rape. Therefore, the submission of the lesser-included offense was not prejudicial to defendant but to the contrary was in his favor.\nOur conclusion that defendant suffered no prejudice is consistent with Summitt and Ray. As in Summitt, defendant\u2019s sole defense here was that he did not commit the act upon which the charges were based. Thus, the jury\u2019s verdict finding him guilty of involuntary manslaughter implicitly but clearly rejected his defense that he did not commit the act upon which the charges were based. When the jury discarded defendant\u2019s sole defense, all the evidence pointed to the greater crime of felony murder. Therefore, the submission of the lesser included offense of involuntary manslaughter was not prejudicial to defendant, but, on the contrary, was in his favor.\nSimilarly, we reject defendant\u2019s contention that the jury\u2019s inconsistent verdicts were prejudicial to him. We believe that \u201c \u2018the jury, by an act of grace,\u2019 has found . . . [the defendant] guilty of a lesser offense\u201d. State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431 (1956).\nDefendant contends further that his conviction of involuntary manslaughter and unlawful burning arising out of the same transaction constituted double jeopardy. Defendant is attempting to broaden the merger doctrine of felony-murder which provides that if a defendant is convicted of first degree murder on the felony-murder doctrine, he cannot be convicted of both the underlying felony and the first degree murder charge which relied on that felony to supply premeditation. State v. Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981). If defendant had been convicted of felony murder instead of involuntary manslaughter, the guilty verdict on the unlawful burning charge would have to be arrested. State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972). Since this was not the situation in defendant\u2019s case, we overrule this assignment.\nVI.\nThe final assignment of error which, we consider is defendant\u2019s contention that the trial court erred in denying his motion to dismiss on the grounds that there was insufficient evidence to go to the jury. On defendant\u2019s motion to dismiss, the State is entitled to the benefit of every reasonable inference arising from the evidence. State v. McKinney, 288 N.C. 113, 215 S.E. 2d 578 (1975). There was sufficient evidence for the jury to consider each charge for which defendant was convicted and sentenced. The trial court did not err in denying defendant\u2019s motion.\nDefendant was given a fair trial, free from prejudicial error.\nNo error.\nChief Judge Morris and Judge VAUGHN concur.\n. Witness Maddry qualified as an expert in electrical systems and testified that, in his opinion, the fire did not originate within the electrical system.\n. Witness Grotts, an employee of the North Carolina Utilities Commission, was not allowed to give his opinion as to the role of natural gas leaks in starting the fire.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Special Deputy Attorney General Lester V Chalmers, for the State.", "Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P.A., by James E. Ferguson, II, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES E. JEFFRIES\nNo. 8125SC165\n(Filed 5 January 1982)\n1. Criminal Law \u00a7\u00a7 75, 75.7\u2014 statements to officers by defendant \u2014 no custodial interrogation \u2014 voluntary\u2014properly admissible\nThe trial court did not err in admitting into evidence three separate statements made by defendant, who was indicted for feloniously and willfully setting fire to his store and for five counts of first degree murder in connection with deaths resulting from the fire. Defendant made the first statement after going to the Law Enforcement Center voluntarily, voluntarily submitting to a polygraph test and after being told by the person administering the test that he did not believe defendant was telling the truth. Before he submitted to the test, defendant was read his rights and signed a waiver acknowledging that he was free to end the test and to leave at any time. After the first statement defendant was again advised of his rights but he was not under arrest and was told he could leave anytime. He made two more statements to two other officers. He was not arrested until three weeks later. Under these circumstances, defendant\u2019s statements were made voluntarily and while he was not in custody.\n2. Constitutional Law \u00a7 30\u2014 sanctions for failure to comply with discovery \u2014discretionary with judge\nWhere a defendant follows the procedures for seeking discovery outlined in G.S. 15A-902(a) and 15A-903(d) and (e), and the State fails to comply with the court\u2019s order compelling discovery, there are several sanctions available to the court under G.S. 15A-910, including prohibiting the noncomplying party from introducing evidence not disclosed. However, where the record on appeal did not contain defendant\u2019s initial G.S. 15A-902 letter nor his motion to compel discovery; where defendant only entered a general objection when a can of vinyl flooring was entered into evidence; and where there was no allegation the prosecutors acted in bad faith, the Court found no abuse of the trial court\u2019s discretion in allowing the flooring into evidence.\n3. Constitutional Law \u00a7 30\u2014 failure to comply with discovery \u2014 admitting testimony discretionary\nWhere the trial judge found that defendant was not prejudiced by the State\u2019s failure to furnish copies of tests which indicated that the fire defendant was accused of starting did not originate in the building\u2019s electrical system or furnace, and where the court offered defendant a reasonable time period in which to review the reports, the trial court did not abuse its discretion in admitting testimony concerning the tests.\n4. Criminal Law \u00a7 158\u2014 failure to include photographs in record \u2014no review\nFailure to include excepted-to photographs and film footage in the record is a violation of App. R. 9(b)(3) and makes it impossible for the Court to rule on the admissibility of the evidence.\n5. Criminal Law \u00a7 43.4\u2014 testimony concerning appearance of persons killed in fire proper\nTestimony about the appearance of firemen who died fighting the fire defendant was accused of starting was in no way incompetent or irrelevant to the issues being tried.\n6. Criminal Law \u00a7 50\u2014 jury unable to draw on inferences \u2014opinion testimony admissible\nIn a prosecution concerning the felonious setting of a fire to defendant\u2019s store, it was not error to allow one fireman to testify the steam he observed was \u201can indication that they had hit the seat of the fire\u201d and for another fireman to testify the smoke smelled like \u201cburning oil or some type of petroleum product\u201d as the facts upon which each opinion was based could not be described in a manner which would allow the jury to draw their own inferences.\n7. Criminal Law \u00a7 66.18\u2014 waiver of objection to identification testimony \u2014 no error in court\u2019s failure to exclude ex mero motu\nThere was no error in the court\u2019s failure to exclude identification testimony of a witness ex mero motu at the end of a voir dire where the defense counsel chose to withdraw his objection to the testimony at the end of the voir dire. A defendant may, for whatever reason, waive the benefit of constitutional provisions by express consent.\n8. Criminal Law \u00a7 43.5\u2014 videotape of unavailable witness\u2019s testimony \u2014 admission proper \u2014 cross-examination not thwarted\nThe trial court did not err in admitting a videotape of a witness\u2019s testimony under the following facts: Defendant\u2019s trial was in its sixth week when the last witness for the State was hospitalized; the witness\u2019s physician would not allow the witness to return to the courtroom for at least two weeks, but would allow him to testify via videotape from the hospital; the trial judge presided over the videotaping session at which defendant, his counsel, and his expert advisor were present, and the defense counsel\u2019s cross-examination appeared thorough and unrestrained as it comprised 49 pages of the record on appeal. Admission of a witness\u2019s videotaped testimony in a criminal case does not constitute an inherent violation of a defendant\u2019s right to confront witnesses against him; however, the conditions under which such testimony is allowed must be controlled in the following manner: (1) There must be exceptional circumstances necessitating the procedure. (2) The witness must be unavailable to testify within a period of time after which the trial itself would be subject to mistrial. (3) The videotaped session must be under the control of the trial judge, and the defendant and his attorney must be allowed to attend. (4) Effective cross-examination by defendant must be unimpeded. (5) All measures must be taken to eliminate possible prejudice due to the location or condition of the witness. (6) The videotape shown to the jury must be clear.\n9. Homicide \u00a7 30.3\u2014 submission of lesser included offense \u2014 no evidence supporting charge \u2014 harmless error\nSubmission to the jury of the offense of involuntary manslaughter was error where the evidence supported the State\u2019s theory that five deaths resulted from defendant\u2019s feloniously and deliberately setting fire to his store. However, the error was not prejudicial. The jury\u2019s verdict finding him guilty of involuntary manslaughter implicitly but clearly rejected his defense that he did not commit the act upon which the charges were based. When the jury discarded defendant\u2019s sole defense, all the evidence pointed to the greater crime of felony murder.\n10. Constitutional Law \u00a7 34; Criminal Law \u00a7 26.5\u2014 convictions of involuntary manslaughter and unlawful burning \u2014 no double jeopardy\nDefendant\u2019s conviction of involuntary manslaughter and unlawful burning arising out of the same transaction did not constitute double jeopardy.\nAPPEAL by defendant from FerreU, Judge. Judgment entered 22 April 1980 in Superior Court, CATAWBA County. Heard in the Court of Appeals 14 September 1981.\nOn 9 July 1979, defendant was indicted on the charges \u00f3f: (1) conspiracy to violate G.S. 14-62 by willfully, feloniously and wantonly setting fire to the Gardner Building in Shelby, North Carolina, for the purpose of collecting monies under the terms of an insurance policy, (2) the felonious and willful setting of fire to the Gardner Building, and (3) five counts of first degree murder for the deaths of four firemen and one city employee who died in the fire. Prior to his trial, defendant made numerous motions including a motion for a change of venue from Cleveland County. Change of venue was allowed, and defendant\u2019s case was tried in Catawba County. Defendant\u2019s motion for a court-appointed expert in arson investigation was also allowed.\nAt trial, State\u2019s evidence tended to show that on 25 May 1979 at approximately 6 p.m., Melinda Setzer was working in the rear of J.E.\u2019s, a clothing store located in the Gardner Building, when she smelled what she thought was kerosene. After checking with Assistant Manager Mary Ann Skinner at the front of the store, Setzer returned to her work. She again smelled something like charcoal lighter fluid. She looked out a window in the rear of the building and saw smoke coming from the west. Behind the building, Setzer found smoke \u201ccoming from behind Jeffries [sic] Clothing\u201d, another store located in the Gardner Building. She immediately returned to J.E.\u2019s, where the assistant manager was calling or had already called the fire department. Then smoke started coming through the ceiling of J.E.\u2019s, and the two employees evacuated the store. Setzer ran to Jeffries\u2019, the Bible Book Store and Wonderland Toy, the other three stores located within the Gardner Building, to warn of the fire, but she found no one in any of those stores.\nAt approximately 6:15 p.m., the Cleveland County communication center received Skinner\u2019s call, and within minutes the Shelby Fire Department responded. In addition, members of the Cleveland County Volunteer Fire Department went to the Gardner Building. Smoke and fire seemed to be located in the rear of Jeffries\u2019, so water was sprayed into that store. The double back door to Jeffries\u2019 was knocked in, allowing the firemen to observe \u201can inferno\u201d, with flames rolling \u201cin a circular motion\u201d. At 6:43 p.m., without warning, the building exploded. Glass flew across the street, and the entire structure of bricks and concrete collapsed into the street and the alley. Four firemen and a city employee were trapped by the debris and died as a result of the impacts to their bodies.\nIn addition to testimony by firefighters and other eyewitnesses that the fire appeared to be located in defendant\u2019s store, there was evidence that the fire had originated there, flammable fluids or accelerants having been used to start it. Earl Hatcher, the Chief Arson Investigator for the State Bureau of Investigation (S.B.I.), qualified as an expert in the field of arson investigation. He testified that he had observed deeply charred or alligatored 2x4 inch studdings on the east and west walls of Jef-fries\u2019, and deep charring in the southeast corner of the store, both of which indicated the presence and ignition of accelerants. Tile taken from the floor of Jeffries\u2019 bore the odor of a petroleum product similar to that of mineral spirits. After examining Jef-fries\u2019, J.E.\u2019s, and the Bible Book Store, Hatcher concluded that the fire in the Gardner Building originated from the ignition of liquid accelerants in the southeast corner of Jeffries\u2019 store.\nWilliam E. Kelleher, an expert in the field of fire origin and arson investigation, gave his opinion that the fire originated in Jeffries\u2019; that flammable fluids had been employed; and that their vapors had reached the explosive range sometime after the fire was set, thus ca\u00fasing the explosion. This opinion was based on Kelleher\u2019s personal investigation of the scene and his interviews of firemen who were present when the building burned. Kelleher testified that the burn holes in Jeffries\u2019 revealed that the fire had burned downward, following an unnatural path, due to the presence of a liquid accelerant which flowed to the lowest point possible. The alligator burn pattern also supported Kelleher\u2019s conclusion that an accelerant had been poured on the floor.\nThere was evidence that defendant\u2019s business was not doing well. One customer testified that the defendant\u2019s store did not appear to be completely stocked. A United Parcel Service employee testified that merchandise delivered to the store had been consistently shipped COD (cash on delivery) or had been prepaid. Furthermore, when defendant relocated to the Gardner Building eight months before the fire, he had increased his inventory insurance coverage from $15,000 to $20,000.\nJames F. Walker, who had worked with defendant previously, testified that approximately one month before the fire, defendant had offered him a thousand dollars to set fire to his store. Walker refused. His testimony was corroborated by several witnesses to whom he had told the story both before and after the 25 May 1979 fire.\nThe State\u2019s evidence also tended to show that the day before the fire, the defendant and an unidentified man were seen reading labels on cans of paint thinner, naptha, lacquer thinner, and solvents at the Cal-Tone Paint Store. No purchases were made. Just after 5:00 p.m. on 25 May 1979, two customers entered Jef-fries\u2019, spoke with defendant, and noticed one Sammy Guest in the rear of the store. Guest and defendant left with the customers at approximately 5:20 p.m.; defendant locked the front door and drove off with Guest. No one else was seen in the store.\nOver defendant\u2019s objection, the State introduced evidence that on 31 May 1979, defendant told S.B.I. agent Albert Stout that he didn\u2019t care if his business burned but he hadn\u2019t wanted anyone to get hurt; that Sammy Guest told him he could burn the place by leaving a cigarette in the ashtray, and that, on 24 May 1979, a cigarette was left burning on the carpeted floor next to the ashtray, but it burned out; and that thereafter Sammy Guest told defendant he would take care of it.\nAlso over defendant\u2019s objections, the State introduced two more statements of the defendant, one made to Frank Lee, a Special Agent of the Bureau of Alcohol, Tobacco and Firearms, and made another to S.B.I. Special Agent Jack Richardson. Agent Lee testified that defendant had told him that he had been hoping his business would burn so he could collect the insurance money; that he was being pressured by companies who wanted to be paid by defendant; that he, Jeffries, had jokingly stated to several persons that he wouldn\u2019t care if his business burned; that he could not understand how the building exploded; and that he was sorry the five men had died. The statement defendant made to Richardson was similar but added that Sammy Guest had told defendant that he could burn the business for him because he had burned a house one time and was never caught; that a burning cigarette Guest placed on the carpet failed to ignite a fire; and that Guest told defendant that he would make sure it burned next time and defendant wouldn\u2019t know anything about it.\nDefendant offered no evidence.\nThe jury returned verdicts of guilty to five counts of involuntary manslaughter, one count of felonious burning, and one count of felonious conspiracy to burn. From the imposition of consecutive prison terms, defendant appeals.\nAttorney General Rufus L. Edmisten, by Special Deputy Attorney General Lester V Chalmers, for the State.\nChambers, Ferguson, Watt, Wallas, Adkins & Fuller, P.A., by James E. Ferguson, II, for defendant-appellant." }, "file_name": "0269-01", "first_page_order": 301, "last_page_order": 323 }