Preservation of issues—constitutional rights of parent—determined by district court on its own initiative—not challenged in trial court—In a neglect proceeding resulting in the temporary placement of a juvenile with relatives, where the district court on its own initiative determined that the father had acted in a manner inconsistent with his constitutional rights as a parent but the father did not challenge that determination on constitutional grounds, that issue was not preserved for appellate review–a result in conformance with the longstanding precedent that constitutional arguments not raised in a trial court will not be considered for the first time on appeal, in part to ensure that parties have notice and an opportunity to present relevant evidence on the matter. In addition to reversing the lower appellate court's decision in the instant case, the Supreme Court expressly overruled the contrary preservation holding by the Court of Appeals in In re B.R.W. and its progeny. In re K.C. , No. 142A23 (N.C. Dec. 13, 2024) (Author: Justice Richard Dietz)

Preservation of issues—criminal defendant’s right to competency hearing—statutory—waiver—In a prosecution for multiple charges arising from defendant's involvement in a scheme to throw footballs containing illegal drugs into a prison yard, where a competency evaluation was ordered for defendant but he posted bond and was released approximately two weeks later without having been evaluated, defendant waived his statutory right to a competency hearing under N.C.G.S. § 15A-1002 by failing–over the course of several years between entry of the evaluation order and his conviction–to assert the issue at trial or beforehand by, for example, remaining in pretrial custody for the evaluation, moving to amend the evaluation order in light of his release, or checking himself into a hospital for the ordered evaluation after his pretrial release. Further, nothing in the record since entry of the evaluation order suggested any competency concerns, defendant repeatedly represented himself as competent at trial, and defendant specifically disclaimed any constitutional competency challenge on appeal. State v. Wilkins , No. 44A23 (N.C. Dec. 13, 2024) (Author: Chief Justice Paul Newby)

Full custody awarded to non-relative—statutorily required findings sufficient—Following an abuse and neglect adjudication, the district court's final permanency planning order–awarding full custody to the juvenile's foster parents (rather than placing the juvenile with a maternal grandfather) and converting the case to a civil custody proceeding–was affirmed because the written findings of fact complied with the Juvenile Code provisions cited in the mother's appeal in that: no written finding regarding placement of the juvenile with the mother within six months was required where the impossibility of such a placement was uncontested (N.C.G.S. § 7B-906.1(e)); the findings reflected the court's determination that reunification with the mother was inconsistent with the juvenile's health and safety (N.C.G.S. § 7B-906.2(b), (d)(4)); the findings, including facts in the department of social services court report incorporated by reference in the order, detailed the mother's availability to the court and the guardian ad litem (N.C.G.S. § 7B-906.2(d)(3)), as well as her participation in her case plan (N.C.G.S. § 7B-906.2(d)(2)); and the findings demonstrated the district court's consideration of the maternal grandfather as a potential placement, in conformance with the requirement of N.C.G.S. § 7B-903(a1) that it "first consider" a relative as a placement for a juvenile. In re L.L. , No. 333PA23 (N.C. Dec. 13, 2024) (Author: Justice Tamara Barringer)

Capital murder trial—pretrial motion to strike death penalty—prosecutorial discretion—In a capital murder prosecution arising from the fatal shooting of two victims, the trial court did not err by denying defendant's pretrial motion to strike the death penalty because the decision to seek a particular sentence or to engage in plea bargaining is within the exclusive and discretionary power of the district attorney and does not impermissibly burden a defendant's constitutional rights. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Clerk of superior court—constitutional officer—removal—authority of a replacement judge appointed by the Chief Justice—Following two trial court proceedings removing a duly elected clerk of superior court–the second of which was conducted on remand from the Court of Appeals–the Supreme Court overruled the lower appellate court's holding in the clerk's first appeal that, upon the recusal of the senior regular resident superior court judge (the official authorized to preside in such cases pursuant to Article IV, Section 17(4) of the North Carolina Constitution), a replacement judge appointed by the Chief Justice lacked authority to preside in the matter. The Chief Justice is authorized by N.C.G.S. § 7A-41.1(e) to appoint an acting senior resident superior court judge when the regular senior resident superior court judge is unable to perform their duties, including to preside in a clerk removal proceeding. In re Chastain , No. 283A22-2 (N.C. Dec. 13, 2024) (Author: Justice Allison Riggs)

Clerk of superior court—removal standard—The Supreme Court clarified that, in a proceeding to remove a duly elected clerk of superior court pursuant to Article IV, Section 17(4) of the North Carolina Constitution, "misconduct"–wrongful, unlawful, dishonest, or improper conduct–rather than "willful misconduct," is the proper standard to be applied. In re Chastain , No. 283A22-2 (N.C. Dec. 13, 2024) (Author: Justice Allison Riggs)

Clerk of superior court—removal—procedural due process—The Supreme Court clarified that, in a proceeding to remove a duly elected clerk of superior court pursuant to Article IV, Section 17(4) of the North Carolina Constitution, due process considerations require that a clerk may be removed only for conduct identified in the charging affidavit that initiated the removal proceeding per N.C.G.S. § 7A-105. In re Chastain , No. 283A22-2 (N.C. Dec. 13, 2024) (Author: Justice Allison Riggs)

Effective assistance of counsel—capital murder trial—premature consideration on direct appeal—In a capital murder prosecution arising from the fatal shooting of two victims, where defendant's claims that his counsel provided ineffective assistance–by failing to object at numerous points throughout the trial and sentencing–could not be determined on the cold record, those claims were dismissed without prejudice to defendant's right to raise them in a subsequent proceeding. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Eighth and Fourteenth Amendments—death penalty—method of lethal injection—substantial and imminent risk not shown—In a capital murder prosecution arising from the fatal shooting of two victims in which defendant received a sentence of death, defendant failed to meet his burden of demonstrating that the state's method of lethal injection involved a substantial risk of serious harm (severe pain over and above death itself) and that an alternative method was available that would entail significantly less risk of needless suffering. Therefore, defendant's argument that the state's method of punishment was cruel and unusual and unconstitutional under the Eighth and Fourteenth Amendments was rejected. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Capital murder trial—no error—no cumulative error—In a capital murder prosecution arising from the fatal shooting of two victims, defendant failed to show that cumulative prejudicial error deprived him of a fair trial and required reversal of his convictions and a new trial or sentencing hearing. Where the Supreme Court addressed each of defendant's substantive claims on appeal and found no error by the trial court, there could be no cumulative error. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Capital murder trial—preservation issues—In a capital murder prosecution arising from the fatal shooting of two victims, arguments presented by defendant as preservation issues–that the death penalty should be invalidated and that the indictment was insufficient to elevate the crime of murder from second-degree to first-degree and did not allege aggravating circumstances–did not include compelling reasons to depart from well-established precedent. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Jury instructions—capital murder trial—culpability for killing by accomplice—major participant in events leading to death—In a capital murder prosecution arising from the fatal shooting of a prostitute and her protector (a male) at a hotel by defendant and another man, there was no plain error with regard to defendant's argument that, since he was not the one who killed the male victim and therefore could not have had the requisite intent to kill for imposition of the death penalty, the trial court should have included a culpability requirement in its jury instruction pursuant to Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987). The instruction was not required because defendant was convicted of first-degree murder for the killing of the male victim on both theories of felony murder and premeditation and deliberation based on evidence showing that defendant was a major participant in the male victim's death by actively planning, arranging, and perpetrating an armed, violent felony that was likely to lead to a person's death. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Jury instructions—capital murder trial—felony murder—final mandate—felony elements not repeated—In a capital murder prosecution arising from the fatal shooting of two victims, the trial court did not plainly err when, in its final mandate to the jury on first-degree murder based on felony murder, it failed to repeat the elements for the underlying felonies–attempted first-degree rape and attempted robbery with a dangerous weapon–because the instructions, taken as a whole, included thorough and correct instructions regarding each element of those felonies and, therefore, there was no reasonable cause to suggest that the jury was misled or misinformed. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Murder trial—gun never recovered—prior assault with a firearm—relevance—In a capital murder prosecution arising from the fatal shooting of a prostitute and her protector at a hotel, in which the gun defendant used to shoot one of the victims was never recovered, the trial court did not commit plain error by admitting evidence from a woman about a prior incident involving defendant making a threat to her by putting his gun up to her mouth and telling her if she didn't comply with his demands, then her blood would be on the walls. The prior incident was relevant to the question of whether defendant possessed a firearm and, even if the evidence was not relevant, defendant failed to show that the jury probably would have reached a different result absent the evidence. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Photographs—murder victims and scene—not repetitive or cumulative—In a capital murder prosecution arising from the fatal shooting of a prostitute and her protector at a hotel, the trial court did not abuse its discretion by admitting nearly one hundred photographs of the victims and the crime scene, only nine of which defendant challenged at trial. The challenged photos were not unnecessarily repetitive and cumulative where they depicted different angles of the victims' bodies and injuries–as well as the distance between the bodies, shell casings, and bloody footprints in the context of the general layout of the room and hallway where the incident took place–and were illustrative of what officers observed when they arrived on the scene. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Prior bad acts—murder trial—prior armed assaults and rapes—common scheme or plan—temporal proximity and similarity—In a capital murder prosecution arising from the fatal shooting of a prostitute and her protector at a hotel by defendant and another man, the trial court did not err in admitting evidence from two women who related separate incidents that each took place less then two months before the fatal shooting in which each woman, while working as a prostitute at a hotel, was raped and robbed at gunpoint by defendant and a second man. The incidents were admissible under Evidence Rule 404(b) as evidence of defendant's identity, motive, and a common plan or scheme to rape and rob the murder victim because there was sufficient temporal proximity and similarity between those incidents and the one that gave rise to the murder charges. Given that the evidence demonstrated a common plan or scheme, its admission was not unfairly prejudicial so as to outweigh any probative value under Evidence Rule 403. Further, the trial court's limiting instruction regarding the prior incidents was not in error or, even if there was any error, it was invited error since the instruction was given at defendant's request. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Witness testimony—background information—past experience of abuse—plain error review—In a capital murder prosecution arising from the fatal shooting of a prostitute and her protector at a hotel, the trial court did not commit plain error by admitting personal background information from two witnesses during the guilt-innocence phase of the trial and from two other witnesses during the sentencing phase, where the evidence was relevant and more probative than prejudicial. Testimony from the sister of one of the victims about the victim's past experience of abuse was limited in scope, provided an explanation for how the victim ended up as a prostitute, and did not constitute impermissible character testimony. Testimony from the other witness during the guilt-innocence phase detailing her abusive upbringing similarly served to provide context as to why she was working as a prostitute on the night she was attacked by defendant. For each of the two witnesses who detailed their experiences of abuse during the sentencing phase–in which less restrictive standards apply–their testimony introduced each of them to the jury and related to the aggravating circumstance of showing a course of conduct by defendant engaging in violent acts. Finally, the trial court properly instructed the jury that all of the evidence in both phases of the trial could be considered during sentencing deliberations. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

First-degree murder—acting in concert—murder committed in pursuit of a common plan—In a capital murder prosecution arising from the fatal shooting of a prostitute (a female) and her protector (a male) by defendant and another man, the State presented substantial evidence that defendant and his accomplice were acting in concert when the accomplice shot and killed the male victim. Specifically, there was sufficient evidence from which the jury could determine that the murder of the male victim occurred during the pursuit, and as a natural and probable consequence of the two men's common plan to rob and rape the female victim; therefore, the charge of first-degree murder of the male victim based on theories of premeditation and deliberation and felony murder was properly submitted to the jury. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

First-degree murder—felony murder—underlying felony—sufficiency of evidence—In a capital murder prosecution arising from the fatal shooting of a prostitute and her protector at a hotel by defendant and another man, the State presented substantial evidence of first-degree murder based on felony murder, where the evidence–including testimony about prior rapes and robberies committed by defendant against other women, which was submitted pursuant to Evidence Rule 404(b) as evidence of a common plan or scheme–supported an inference that defendant intended to rape the female victim or rob her at gunpoint, and took overt steps to do so, before he was interrupted when his accomplice shot the other victim in the hallway outside the hotel room. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

First-degree murder—premeditation and deliberation—sufficiency of evidence—In a capital murder prosecution arising from the fatal shooting of a prostitute and her protector at a hotel by defendant and another man, the State presented substantial evidence from which a jury could conclude that defendant acted with premeditation and deliberation to support the first-degree murder charge regarding the female victim, including that defendant arrived at the hotel with a loaded weapon, there was no evidence of provocation by the female victim based on video surveillance, and the victim was unarmed when she was shot. Further, the two shots defendant fired at the victim, both of which hit her, constituted evidence of intent to kill. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Capital murder trial—sentencing phase—pre-trial identification—not induced by State action—In the sentencing phase of a capital murder prosecution arising from the fatal shooting of two victims, there was no violation of defendant's due process rights from the admission of a witness's pretrial identification of defendant as the perpetrator of a prior armed assault and robbery committed against her, where the identification did not result from any State action. Although the witness was contacted by a detective who was investigating whether a link existed between the murders and her prior reported attack, the witness did her own independent research and recognized defendant from a photograph in a news article. Any questions about the reliability of her testimony were for the jury to determine and went to the weight rather than the admissibility of the evidence. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Commercial—government-ordered pandemic restrictions—policy interpretation—viral contamination exclusion—A clothing retailer's claim for insurance coverage for loss of business as a result of government-mandated restrictions imposed during the COVID-19 pandemic was properly dismissed for failure to state a claim pursuant to Civil Procedure Rule 12(b)(6). The Supreme Court modified and affirmed the Court of Appeals' decision upholding the trial court's dismissal where, contrary to the lower appellate court's determination, plaintiff did allege a "direct physical loss of or damage to" its property–a definition which did not require a tangible alteration of property–based on the forced closure of its stores and the undertaking of significant remediation before being allowed to reopen. However, coverage was nevertheless precluded because plaintiff's "all-risk" commercial property insurance policy–which defined the scope of covered risks by its exclusions–contained an exclusion for viral contamination. Cato Corp. v. Zurich Am. Ins. Co. , No. 353PA23 (N.C. Dec. 13, 2024) (Author: Justice Anita Earls)

Commercial—government-ordered pandemic restrictions—temporary business closures—"direct physical loss" met—In a claim brought by numerous bars and restaurants (plaintiffs) seeking insurance coverage for their loss of business when–during the COVID-19 pandemic–government-mandated restrictions temporarily limited the use of and access to their physical properties, plaintiffs were entitled to partial summary judgment on the issue of whether their losses were covered by their "all-risk" commercial property insurance or supplemental business income policies. Under each policy, any ambiguity in the phrase "direct physical loss" was construed in favor of the policyholders, and, here, plaintiffs sufficiently alleged direct physical losses where government-issued orders rendered their properties unusable for their insured purposes, and the policies did not specifically exclude viruses or contaminants from covered risks. N. State Deli, LLC v. Cincinnati Ins. Co. , No. 225PA21-2 (N.C. Dec. 13, 2024) (Author: Justice Anita Earls)

Selection—capital murder trial—excusal for cause—views on death penalty—During jury selection for a capital murder prosecution arising from the fatal shooting of two victims, the trial court did not abuse its discretion by excusing three prospective jurors for cause based on their answers to questions about their ability to consider imposing a penalty of death–the one who stated that he didn't think that he could vote for (or would have a hard time voting for) the penalty; a second who stated unequivocally that she did not believe in the death penalty and would not vote for it; and a third who equivocated but then agreed that he would automatically vote for life without parole. In each case, the court's determination that the prospective jurors' stated views would substantially impair the performance of their duties to impartially apply the law was not manifestly unreasonable and, further, there was no abuse of discretion in the trial court's decision not to allow further questioning of each prospective juror by defendant in light of the improbability that different answers would be given. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Capital murder trial—jury instructions—aggravating factors—multiple factors supported by same evidence—In the sentencing phase of a capital murder prosecution arising from the fatal shooting of a prostitute and her protector at a hotel by defendant and another man, the trial court did not commit plain error by failing to instruct the jury that it could not use the same evidence to support more than one aggravating factor. There was not a complete overlap in the evidence supporting the aggravating circumstance that the murders occurred during the attempt to commit rape or armed robbery and the evidence used to support the aggravating circumstance that the murders were part of a course of conduct by defendant engaging in violent acts against the victims. There was substantial separate evidence that defendant subjected prior victims to the same type of violence perpetrated on the night in question. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Capital murder trial—mitigating circumstances—peremptory instructions not required—During the sentencing phase of a capital murder prosecution arising from the fatal shooting of two victims, the trial court did not err by failing to give peremptory instructions to the jury regarding three out of forty mitigating circumstances, which would have directed the jury to find that a particular mitigating circumstance had been established if the jury found the facts presented to be true. Contrary to defendant's assertion, the evidence supporting each of the three non-statutory mitigating factors (that defendant's asthma as a child prevented him from engaging in sports, that his home life impacted his ability to succeed in school, and that he suffered from other specified trauma and related stressor disorder) was not uncontroverted. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Murder trial—aggravating circumstance—murder perpetrated during commission of felonies—In the sentencing phase of a capital murder prosecution arising from the fatal shooting of a prostitute and her protector at a hotel by defendant and another man, the State presented sufficient evidence that the murders occurred during the commission of the attempted rape or armed robbery of the female victim to support the submission of this aggravating circumstance to the jury. State v. Gillard , No. 316A19 (N.C. Dec. 13, 2024) (Author: Justice Phil Berger, Jr.)

Statutory construction—purpose and legislative intent—export credit allowed in a tax year—summary judgment improper—In a complex business case requiring the interpretation of N.C.G.S. § 105-130.45 (repealed effective 1 January 2018) regarding a taxpayer's yearly limit of $6,000,000 of export credit–a tax credit based on the number of cigarettes manufactured in the state for export in a given year–the trial court erred in allowing summary judgment in favor of the Department of Revenue, whose position was that the provision capped the export credit that could be generated in any tax year. Construing the pertinent language of the statute, the Supreme Court held that the $6,000,000 cap applied only to the amount of export credit that could be claimed in any tax year and did not limit a taxpayer's ability to generate credit in excess of that amount in any tax year, to carry forward as otherwise provided. Philip Morris USA, Inc. v. N.C. Dep't of Revenue , No. 62A23 (N.C. Dec. 13, 2024) (Author: Justice Tamara Barringer)

Temporary total disability payments—"total loss of wage-earning capacity”—plain language analysis—capacity for any type of work—On discretionary review of a workers' compensation case, the Supreme Court modified a Court of Appeals decision by rejecting its interpretation of the plain language of N.C.G.S. § 97-29(c)–which ends, in most cases, temporary total disability payments after 500 weeks unless an employee has sustained a "total loss of wage-earning capacity"–instead holding that the quoted portion of the provision, both as originally drafted and after subsequent amendments that emphasized the legislature's intent, refers to the total loss of an employee's personal capacity to earn wages in any type of employment and, thus, does not share a meaning with "total disability" as that term of art is used in workers' compensation case law. However, the Court affirmed the lower appellate court's ultimate holding–which in turn affirmed the Industrial Commission's conclusions of law–that the employee, despite ongoing back pain that was sometimes severe enough to prevent him from working at all, was nevertheless capable of some part-time work and thus was subject to the cessation of temporary total disability payments after 500 weeks. Sturdivant v. N.C. Dep't of Pub. Safety , No. 130PA23 (N.C. Dec. 13, 2024) (Author: Justice Richard Dietz)

Unified development ordinance—school construction—connectivity requirements—ambiguous provision—free use of land—In conducting a de novo review of a town's denial of petitioner's permit applications for the construction of a proposed charter school, the Supreme Court reversed the decision of the Court of Appeals and held that, where the town's unified development ordinance regarding the inclusion of off-premise sidewalks was ambiguous, the lower appellate court erred by adopting the town's interpretation of that provision and instead should have strictly construed the provision in favor of the free use of land per public policy. Since petitioner carried its initial burden of production by presenting competent, material, and substantial evidence tending to show that it was entitled to the issuance of permits and no evidence was presented to the contrary, the matter was remanded with instructions for the town to approve petitioner's site plan and subdivision applications. Schooldev E., LLC v. Town of Wake Forest , No. 268A22 (N.C. Dec. 13, 2024) (Author: Justice Trey Allen)