Criminal Practice — Second-Degree Murder – ‘Accident’ – Sentencing – Malice

A witness who had been incarcerated with defendant testified that defendant said both defendant and the victim had their hands on the gun when it went off, killing the victim. Nevertheless, defendant testified that he was not in the room and did not fire the gun; furthermore, defendant extensively impeached the inmate’s testimony. Defendant may not now rely on the inmate’s testimony to contend he was entitled to an instruction on accident, a theory he personally disclaimed at trial.

We find no error in defendant’s conviction of second-degree murder.

Defendant argues that he is permitted to rely on inconsistent defenses. This argument is without merit. Defendant cannot simultaneously deny that he committed the shooting and claim that he accidentally committed the shooting.

The evidence, when viewed in the light most favorable to defendant, does not suggest that defendant committed acts which brought about the death of the victim. Because there was not sufficient evidence to entitle defendant to an instruction on the defense of accident, the trial court did not err by omitting an instruction on that defense.

Sentencing

Malice may be shown in at least three different ways: (1) actual malice, meaning hatred, ill-will or spite; (2) an inherently dangerous act done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief; or (3) that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification. The second type of malice is commonly referred to as “depraved-heart” malice.

The crime of second-degree murder has two potential classifications, B1 and B2, depending on the facts of the murder. While second-degree murder is generally classified as a B1 offense, it is classified as a B2 offense where depraved heart malice is used prove the offense. G.S. § 14-17(b).

A general verdict would be ambiguous for sentencing purposes where the jury is charged on second-degree murder and presented with evidence that might allow them to find that either B2 depraved-heart malice or another B1 malice theory existed. Here however, the jury’s verdict was not ambiguous because there was no evidence in support of depraved-heart malice.

The evidence tending to show defendant’s guilt supported only B1 theories of malice, and the jury was instructed only on those theories. Although the jury returned a general verdict convicting defendant of second-degree murder, it is apparent from the evidence presented and instructions given that the jury, by their verdict, found defendant guilty of B1 second-degree murder. The trial court did not err by sentencing defendant as a Class B1 felon.

No error.

State v. Crisp (Lawyers Weekly No. 011-255-21, 16 pp.) (Allegra Collins, J.) Appealed from Swain County Superior Court (Alan Thornburg, J.) Marissa Jensen for the state; Candace Washington for defendant. 2021-NCCOA-697