Criminal Practice  –  Self-Incrimination – Attorney Request – Re-initiation of Interview – Sentencing – B1 or B2 Malice – Appeals – Written Order

After defendant was given his Miranda warnings, talked for a time, and then asked for a lawyer, a detective commented, “This is your chance to write your narrative.” Although the trial court found the detective’s statement was “right up to the line of a violation,” the violation was cured when defendant re-initiated the interview. Competent evidence, including defendant’s repeated requests to see the evidence against him, supports the trial court’s finding that defendant’s Miranda rights were not violated.

We find no error in defendant’s conviction for second-degree murder, but we remand for resentencing.

Even though defendant appealed the trial court’s oral denial of his motion to dismiss, the trial court still had jurisdiction to enter the signed written order, which is virtually identical to the trial court’s oral rendition of its judgment.

In this case arising out of the shooting of a victim who was in a crowd of protesters, the trial court instructed on and the jury verdict set out three theories of malice. Two of the theories supported the B1-felony level of second-degree murder. The remaining theory supported a B2-felony level of second-degree murder. The jury found all three theories.

“When a verdict is ambiguous, neither we nor the trial court is free to speculate as to the basis of a jury’s verdict.” State v. Mosley, 256 N.C. App. 148, 806 S.E.2d 365 (2017). We are bound by Mosley. 

The state presented evidence tending to show multiple malice theories. As in Mosley, evidence presented could support a Class B1 or Class B2 level felony. Also, as in Mosely, the jury’s verdict was ambiguous because the theories supported different levels of felonies.

Consistent with Mosley, ambiguities in the verdict should be construed in favor of defendant. We remand for resentencing defendant for a B2 level offense.

No error as to conviction; remanded for resentencing.

State v. Borum (Lawyers Weekly No. 012-451-20, 22 pp.) (John Tyson, J.) Appealed from Mecklenburg County Superior Court (Gregory Hayes, J.) Daniel Wilkes for the state; Meghan Adelle Jones for defendant. N.C. App. Unpub.