State v. Strickland, 32PA82

• Decision Date: 11 January 1983
• Docket Number: No. 32PA82,32PA82
• Citation: 298 S.E.2d 645,307 N.C. 274
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Andrew D. STRICKLAND.

Page 645

298 S.E.2d 645

307 N.C. 274

STATE of North Carolina v. Andrew D. STRICKLAND.

No. 32PA82.

Supreme Court of North Carolina.

Jan. 11, 1983.

Rufus L. Edmisten, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., Raleigh, for the State.

Malcolm R. Hunter, Jr., Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant first assigns as error the trial court's failure to instruct the jury on a charge of second degree murder. He quotes the following language appearing in our opinion of State v. Harris, 290 N.C. 718, 730, 228 S.E.2d 424, 432 (1976):

[I]n all cases in which the State relies upon premeditation and deliberation to support a conviction of murder in the first degree, the trial court must submit to the jury an issue of murder in the second degree.

It is defendant's contention that the rule enunciated in Harris merely reaffirmed our prior ruling in State v. Perry, 209 N.C. 604, 184 S.E. 545 (1936), and that the rule has since been reaffirmed in State v. Keller, 297 N.C. 674, 256 S.E.2d 710 (1979), and State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979). We disagree with the defendant that Perry, like Harris, mandates a second degree murder instruction in every case in which the State relies on premeditation and deliberation to support a conviction of first degree murder. We are further compelled to re-evaluate our decision in Harris in light of the recent Supreme Court decision in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

We note initially that defendant was tried and convicted in December 1971, prior to our 1976 decision in Harris. Thus our first inquiry is directed toward an interpretation of the law in the pre-Harris cases, applicable to defendant on the date of his trial. As defendant further invokes the benefit of our subsequent interpretation and refinement of the law of these cases as set out in Harris, our inquiry must necessarily turn to a discussion of the "Harris rule" as affected by the interpretation we now place on those cases purportedly giving rise to the rule. See State v. Perry, 209 N.C. 604, 184 S.E. 545; State v. Newsome, 195 N.C. 552, 143 S.E. 187 (1928); State v. Spivey, 151 N.C. 676, 65 S.E. 995 (1909).

Important to this interpretation is the language found in G.S. § 14-17, which defines murder in the first degree. While kidnapping was not a specified felony under the statute as it appeared in 1971, the present version of the statute is substantially the same and provides in pertinent part:

A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, ....

We read G.S. § 14-17 as separating first degree murder into four distinct classes as determined by the proof. The four classes are as follows:

I Murder perpetrated by means of poison, lying in wait, imprisonment, starving or torture;

II Murder perpetrated by any other kind of willful, deliberate and premeditated killing;

III Murder committed in the perpetration or attempted perpetration of certain enumerated felonies;

IV Murder committed in the perpetration or attempted perpetration of any other felony committed or attempted with the use of a deadly weapon.

See State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982), for a history of the Statute.

I

Where the homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture, all of which require planning or purpose, the law conclusively presumes that the murder was committed with premeditation and deliberation, and where the evidence produced at trial supports a finding that the murder was so perpetrated, a defendant can properly be convicted of first degree murder. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349 (1950); State v. Dunheen, 224 N.C. 738, 32 S.E.2d 322 (1944). See Barfield v. Harris, 540 F.Supp. 451, 468 (E.D.N.C.1982). This Court has consistently held that under these circumstances the trial court is not required to instruct the jury on second degree murder. State v. Perry, 209 N.C. 604, 184 S.E. 545; State v. Newsome, 195 N.C. 552, 143 S.E. 187; State v. Spivey, 151 N.C. 676, 65 S.E. 995. We regard this particular aspect of the statute and cases construing it as significant to our determination of the issue before us, for it serves to place the issue of the trial judge's duty to instruct on a lesser offense within the context of an evidentiary determination rather than requiring such an instruction as a matter of law in every case. When the evidence presumptively supports a finding of premeditation and deliberation as in the case of murder by poison, lying in wait, imprisonment, starving or torture, there is no justification for submitting to the jury a charge on one of the lower grades of murder. As we stated in Spivey, "[i]t becomes the duty of the trial judge to determine, in the first instance, if there is any evidence or if any inference can be fairly deduced therefrom, tending to prove one of the lower grades of murder." 151 N.C. at 686, 65 S.E. at 999. The test, therefore, in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, ¹ but whether the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged. See 4 N.C.Index 3d, Criminal Law, § 115.

It is an elementary rule of law that a trial judge is required to declare and explain the law arising on the evidence and to instruct according to the evidence. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393. " 'The trial court is not required to charge the jury upon the question of the defendant's guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of defendant's guilt of such lesser degrees' ...." State v. Shaw, 305 N.C. 327, 342, 289 S.E.2d 325, 333 (1982).

Hence, by recognizing the important connection between what the evidence must show in determining what instructions must be given, the omission of an instruction on second degree murder in cases involving poison, lying in wait, etc., is entirely proper and consistent with our many decisions regarding the trial judge's duty to limit his instructions in accordance with the evidence presented.

II

Where a homicide is perpetrated by means of any other kind of willful, deliberate and premeditated killing, upon proof of the requisite elements, a defendant can be properly convicted of murder in the first degree. We find the following to be an accurate statement of the law respecting the State's burden of proof on the elements of premeditation and deliberation and the trial court's duty to submit the question to the jury:

Deliberation and premeditation, if relied upon by the State, as constituting the homicide murder in the first degree, under the statute, must always be proved by the evidence, beyond a reasonable doubt. In such case, under the statute as construed by this Court, it is for the jury and not the judge to find the fact of deliberation and premeditation, from the evidence, and beyond a reasonable doubt. Premeditation and deliberation are always matters of fact to be determined by the jury, and not matters of law to be determined by the judge.

State v. Newsome, 195 N.C. at 564, 143 S.E. at 193.

We do not, however, read this language as requiring, as a matter of law, that an instruction on second degree murder is mandated in every case merely because the jury must determine the existence of premeditation and deliberation in order to convict defendant of first degree murder. Neither Spivey, Newsome, nor Perry so holds. The test in Spivey is whether there is evidence which would support a verdict of murder in the second degree.

If, however, there is any evidence or if any inference can be fairly deduced therefrom, tending to show one of the lower grades of murder, it is then the duty of the trial judge, under appropriate instructions, to submit that view to the jury.

State v. Spivey, 151 N.C. at 686, 65 S.E. at 999.

Likewise, in Newsome the following language indicates that the decision to instruct on the lesser grade of murder is an evidentiary one:

When on the trial of a criminal prosecution it is permissible under the bill, as here, to convict the defendant of 'a less degree of the same crime' (C.S., 4640), and there is evidence tending to support a milder verdict, the case presents a situation where the defendant is entitled to have the different views presented to the jury, under a proper charge, ....

State v. Newsome, 195 N.C. at 566, 143 S.E. at 194 (emphasis added). (Stacy, C.J., concurring in result).

And in Perry we again find that although the jury must ultimately determine the existence of every element of first degree murder, it is the trial judge, upon his consideration of the evidence, who must determine whether to submit an instruction on a lesser grade of murder.

Whenever there is any evidence or when any inference can be fairly deduced therefrom tending to show a lower grade of murder, it is the duty of the trial judge, under appropriate instructions, to submit that view to the jury.

State v. Perry, 209 N.C. at 606, 184 S.E. at 546. Should the trial judge find, for example, that defendant's own evidence affirmatively negates the possibility that he did not intend to kill the victim, an instruction of the offense of an unintentional killing is not warranted. See Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367. To require an instruction on...