State v. Lail , 251 N.C. App. 463 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-608
Filed: 30 December 2016
Gaston County, No. 14 CRS 53991
STATE OF NORTH CAROLINA,
v.
AVERY JOE LAIL, JR.
Appeal by defendant from judgment entered 28 September 2015 by Judge J.
Thomas Davis in Gaston County Superior Court. Heard in the Court of Appeals 30
November 2016.
Attorney General Roy Cooper, by Special Deputy Attorney General David J.
Adinolfi, II, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.
ELMORE, Judge.
Avery Joe Lail, Jr. (defendant) appeals from a judgment entered after a jury
returned a general verdict finding him guilty of second-degree murder. Defendant
argues the trial judge improperly sentenced him as a Class B1 felon based on a verdict
failing to specify whether the jury found him guilty of Class B1 or B2 second-degree
murder, which depends, in part, on which malice theory supported the conviction.
We conclude defendant received a fair trial and a proper sentence.
STATE V. LAIL
Opinion of the Court
During defendant’s murder trial, the State proceeded under a deadly weapon
implied malice theory arising from defendant’s alleged use of a butcher knife to slash
the victim’s throat. After the presentation of evidence, the judge instructed the jury
on the definitions of express malice and deadly weapon implied malice (B1 second-
degree murder) but not on depraved-heart malice (B2 second-degree murder). The
judge charged the jury on first-degree murder, second-degree murder, and voluntary
manslaughter. The jury returned a general verdict of guilty of second-degree murder.
At sentencing, an issue arose about whether defendant should be sentenced as
a B1 or B2 felon based on the jury’s general verdict. Under our State’s previous
murder statute, all second-degree murders were B2 felonies. Under an applicable
amendment to that statute, second-degree murder was reclassified as a B1 or a B2
felony based, in part, on whether depraved-heart malice supported the conviction.
Over defendant’s objection, the trial judge ruled that, based on the evidence presented
and the jury instruction, the verdict supported sentencing defendant as a B1 felon.
On appeal, defendant argues that since depraved-heart malice may have
supported his conviction, the jury’s general verdict did not support B1 punishment
and requires he be resentenced as a B2 felon. We hold that since the jury was not
presented with evidence supporting a finding of depraved-heart malice, its general
verdict was unambiguous and his B1 sentence proper. Where, however, the jury is
presented with both B2 depraved-heart malice and a B1 malice theory, a general
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verdict would be ambiguous and a B2 sentence would be proper. In this situation,
trial judges for sentencing purposes should frame a special verdict requiring the jury
to specify which malice theory supported its second-degree murder verdict.
I. Background
Just before 10:00 p.m. on 23 March 2014, Brian Dale Jones was found dead on
a driveway located on Old Dowd Road in Mecklenburg County. His head and face
had been beaten and bruised, his neck cut and stabbed repeatedly by a knife, and his
right internal jugular vein severed. The autopsy on Brian’s body revealed that he
was extremely intoxicated at the time of his death, his blood alcohol level registering
at .43 on the breathalyzer scale, but that he died of blood loss from his knife wounds.
On 11 April 2014, Mark Huntley, defendant, and Joyce Delia Rick were
arrested in connection with Brian’s death. The three had been living together in
Joyce’s home for a few weeks before Brian arrived uninvited at Joyce’s door on the
night he died. During interviews with police, the three gave statements concerning
the events surrounding Brian’s homicide. On 21 April 2014, defendant was indicted
on one count of first-degree murder. From 14 to 25 September 2015, defendant was
tried in Gaston County Superior Court. The State’s evidence generally established
the following facts relevant to which malice theory supported the jury’s verdict.
Mark testified that he witnessed defendant murder Brian with a butcher knife.
According to Mark’s testimony, on 23 March 2014, he, defendant, and Joyce were in
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Joyce’s living room watching a NASCAR race on television. Around 1:00 p.m.,
defendant and Mark began drinking. A few hours later that evening, Brian arrived
at Joyce’s home driving a green car belonging to Brian’s girlfriend, Susan Braddy.
Mark had previously dated Susan. Mark had met Brian a few times before and the
two had gotten into an altercation about Susan once before at a convenience store.
Brian brought with him a Duke’s Mayonnaise jar full of moonshine, which he shared
with defendant and Mark. Over the next hour or so, the four of them hung out and
talked. Joyce did not drink. Mark took a few swigs of the moonshine, but defendant
and Brian drank most of it. Defendant and Brian also smoked crack together.
Once the moonshine was finished, Brian, heavily intoxicated, slurring his
words and barely able to stand, started to leave Joyce’s home in an attempt to drive
home. Defendant tried to persuade Brian to sleep on the couch and sober up before
driving but Brian refused. Defendant then helped Brian stumble outside to Susan’s
car and crawl into the vehicle. Mark followed. From outside the car, defendant
continued to encourage Brian not to drive. Mark remained outside for a few minutes
but then went back inside Joyce’s home.
When Mark returned outside a few minutes later, he noticed that Brian had
backed Susan’s car into the driveway and defendant was standing at the driver’s side
window continuing to argue with Brian. The argument turned into a fight, and
defendant began punching Brian through the car window. Defendant then opened
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the driver’s side door, pulled Brian out of the vehicle, and began punching, kicking,
and stomping him. Mark grabbed defendant from behind and tried to stop defendant
from beating Brian, but defendant hit Mark in the head and then continued to beat
a defenseless Brian. Defendant, standing on Brian’s chest, stopped hitting Brian and
then declared that he would be right back. Defendant went inside Joyce’s home and
returned outside wielding a butcher knife with an eight-inch stainless steel blade.
Defendant got back on top of Brian’s chest. Mark asked defendant what he was doing.
Defendant replied: “I’m gonna kill him” and then cut Brian’s throat two or three
times with the butcher knife.
Defendant threatened to kill Mark if he did not help dispose of Brian’s body.
At this point, Brian was still alive but bleeding profusely, and the only sound Mark
heard from Brian was “the gurgling of the blood in his throat and lungs.” After an
unsuccessful attempt to load Brian’s body into Susan’s vehicle, defendant and Mark
loaded him into the back of Joyce’s minivan. Defendant drove the minivan, and Mark
followed in Susan’s vehicle. At one point, Mark noticed Brian’s arm dangling out of
the back window and got defendant’s attention. The two pulled over, loaded Brian’s
arm back into the minivan, and then continued driving. Brian was eventually
dropped on Old Dowd Road in Mecklenburg County.
Defendant and Mark then returned to Joyce’s home, changed clothes, and
started for South Carolina in Susan’s car, leaving the minivan and without cleaning
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any of the blood. Over the next few days, defendant and Mark drove to South
Carolina, and then to West Virginia, before returning to Charlotte and ditching
Susan’s car on a road near the U.S. Whitewater Center. Defendant called Joyce to
come pick them up and then the three proceeded home, where they returned to sitting
around watching television as if nothing ever happened until Mark was arrested a
few days later.
Joyce testified that she did not witness Brian’s murder. According to Joyce’s
testimony, on 23 March 2014, she, defendant, and Mark were hanging around
watching television in her home when she heard an unexpected knock on her door
around 8:00 or 9:00 p.m. When she opened the door, she saw Brian standing there.
Joyce had known Brian for about four or five years and had introduced Brian and
Susan, Joyce’s friend of nearly forty years, to each other about a year earlier. Brian
and Susan were currently living together and dating.
Joyce invited Brian into her home. Brian returned briefly to Susan’s car and
retrieved a jar of moonshine before coming inside and sitting down. He shared the
moonshine with defendant and Mark, and the three passed it back and forth among
them as they talked. Joyce did not sip any of the moonshine but took her nightly
sleeping medicine that diminishes her mental faculties. Joyce was watching
television when she heard an argument develop. She was unaware who was arguing
or what they were arguing about but the men started to get loud. Joyce glanced over
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and saw Brian slam his fist into her glass coffee table. She told Brian to leave. Brian
stood up and defendant said, “Let’s go outside.” All three men went outside.
A few minutes later, defendant came back inside, looking angry and drunk,
and told Joyce that “Brian slapped him and he kicked [Brian’s] ass.” Joyce thought
defendant was bluffing and went down the hall to the bathroom. When she came out,
defendant was no longer in her home. Joyce never saw Mark come back inside, and
she never saw Brian again. Approximately twenty minutes later, defendant came
back inside and told her that he was going to put gas into her minivan. About an
hour after that, Mark and defendant returned to Joyce’s home, their clothes
appearing wet, and the two went down the hall to change. Joyce started the washing
machine and Mark and defendant put in their clothes. About thirty to forty-five
minutes later, Mark and defendant left again, and Joyce did not see them for several
days.
Defendant’s evidence generally corroborated most of the State’s evidence
except for one major difference—that it was Mark who had cut Brian’s neck.
Defendant testified that he witnessed Mark murder Brian with a steak knife.
According to defendant’s testimony, during the evening of 23 March 2014, he returned
from a trip to the bathroom to find Mark and Joyce arguing with someone at the door.
Joyce introduced this person as Brian, Susan’s boyfriend. Brian looked angry.
Defendant had never met Brian before and did not know Susan. Right after they
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met, Brian asked defendant if he drank moonshine. Defendant replied that he did,
and Brian got the moonshine from Susan’s car. Defendant returned to the couch and
continued watching television as Brian and Mark started bickering. The more
moonshine Brian drank, the more Brian and Mark argued about Susan. Eventually,
Brian slammed his fist into the coffee table. The slam woke up Joyce, who told Brian
to leave.
Mark escorted Brian outside and defendant followed. When they got to Susan’s
car, Mark and Brian started bickering again about Susan. Defendant stepped in
between them to break up the fight. Brian backhanded defendant in the mouth,
breaking defendant’s artificial teeth. Defendant lost his temper and “beat the shit
out of [Brian],” knocking him out and then kicking him in the face for good measure.
Defendant then left Mark and Brian outside and went back inside Joyce’s home. He
saw Joyce and told her that he beat up Brian. About five minutes later, defendant
returned outside and saw Mark kneeling beside Brian, giving the appearance that
Mark was robbing Brian. When defendant grabbed Mark by the arm and pulled him
back, he saw that Brian was covered in blood and that Mark had a knife. Defendant
asked Mark why he had murdered Brian, and Mark responded that he had to do it
for Susan. Mark then asked defendant to help him dispose of Brian’s body, which he
did.
After the presentation of evidence, the trial court charged the jury on first-
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degree murder, second-degree murder, and manslaughter, and instructed on express
malice and deadly weapon implied malice but not depraved-heart malice. On 25
September 2015, the jury returned a verdict finding defendant guilty of second-degree
murder, not guilty of first-degree murder, and not guilty of manslaughter.
At sentencing, an issue arose as to whether defendant should be sentenced as
a Class B1 or B2 felon under recently amended N.C. Gen. Stat. § 14-17(b), which
reclassified second-degree murder as either a Class B1 or B2 felony, based, in part,
on whether depraved-heart malice supported the conviction. Both parties argued
about which Class defendant should be sentenced under based on the jury’s general
verdict. Over defendant’s objection, the trial judge ruled that the jury’s verdict,
properly interpreted, found defendant guilty of Class B1 second-degree murder. The
trial judge reasoned:
[R]eading the statute . . . there would have to be some
evidence that would allow some reckless and wanton
manner theory to have been addressed by the jury in this
case. The jury was given malice in the form of . . . the use
of a deadly weapon, which is certainly not a reckless and
wanton manner-type argument. So . . . the Court is going
to find . . . based on the evidence in this particular case that
there was not any evidence to suggest that this act, while
it may be based on an inherently dangerous act, was done
in such a reckless and wanton manner as to manifest a
mind utterly without regard for human life and social duty
and deliberate mental mischief. So . . . the Court is going
to conclude that based on the evidence in this case, the jury
instructions that were given and the findings of the jury . . .
, that this is a B-1 second-degree murder.
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Accordingly, the trial court sentenced defendant as a Class B1 felon to 483–
592 months of imprisonment. Defendant gave timely oral notice of appeal.
II. Analysis
A. 2012 Amendment
Defendant contends that amended N.C. Gen. Stat. § 14-17 requires the jury to
specify in every instance whether depraved-heart malice supported its verdict finding
an accused guilty of second-degree murder. We disagree. Additionally, defendant
contends that contrary to the parties and the trial judge’s interpretation, depraved-
heart malice as contemplated by section (b)(1) of the statute is not limited to driving
while intoxicated homicide cases. We agree.
Issues of statutory construction are questions of law reviewed de novo. In re
Ernst & Young, L.L.P., 363 N.C. 612, 616, 684 S.E.2d 151, 154 (2009) (citation
omitted). “ ‘The primary rule of construction of a statute is to ascertain the intent of
the legislature and to carry out such intention to the fullest extent.’ ” Id. (quoting
Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 137 (1990)).
“When construing statutes, this Court first determines whether the statutory
language is clear and unambiguous.” Wiggs v. Edgecombe Cnty., 361 N.C. 318, 322,
643 S.E.2d 904, 907 (2007) (citation omitted). If it is, “we will apply the plain meaning
of the words, with no need to resort to judicial construction.” Id. (citation omitted).
Additionally, the “ ‘[l]egislature is presumed to know the existing law and to legislate
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with reference to it.’ ” State v. Davis, 198 N.C. App. 443, 451–52, 680 S.E.2d 239, 246
(2009) (quoting State v. Southern R. Co., 145 N.C. 495, 542, 59 S.E. 570, 587 (1907)).
Malice is an essential element of second-degree murder. See, e.g., State v.
Thomas, 325 N.C. 583, 604, 386 S.E.2d 555, 567 (1989). North Carolina recognizes
at least three malice theories:
(1) “express hatred, ill-will or spite”; (2) commission of
inherently dangerous acts in such a reckless and wanton
manner as to “manifest a mind utterly without regard for
human life and social duty and deliberately bent on
mischief”; or (3) a “condition of mind which prompts a
person to take the life of another intentionally without just
cause, excuse, or justification.”
State v. Coble, 351 N.C. 448, 450–51, 527 S.E.2d 45, 47 (2000) (quoting State v.
Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982)). “The second type of malice
[is] commonly referred to as ‘depraved-heart’ malice[.]” State v. Fuller, 138 N.C. App.
481, 484, 531 S.E.2d 861, 864 (2000) (citing State v. Rich, 351 N.C. 386, 527 S.E.2d
299 (2000)). This type of malice is frequently used to support second-degree murder
convictions based on drunk driving. See, e.g., Rich, 351 N.C. at 395, 527 S.E.2d at
304 (upholding second-degree murder conviction under depraved-heart malice theory
where an intoxicated driver “inten[ed] to perform the act of driving in such a reckless
manner as reflects knowledge that injury or death would likely result, thus
evidencing depravity of mind”). However, it is not limited only to situations involving
drunk driving. See, e.g., State v. Bethea, 167 N.C. App. 215, 219–20, 605 S.E.2d 173,
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177 (2004) (upholding second-degree murder conviction under depraved-heart malice
theory based on a sober driver’s “reckless and wanton attempt to elude law
enforcement”); State v. Qualls, 130 N.C. App. 1, 10–11, 502 S.E.2d 31, 37 (1998)
(upholding second-degree murder conviction under depraved-heart malice theory
based on a defendant’s severe shaking of an infant-victim, causing his death), aff’d,
350 N.C. 56, 510 S.E.2d 376 (1999); see also State v. Lilliston, 141 N.C. 650, 651, 54
S.E. 427, 427 (1906) (upholding murder conviction under depraved-heart malice
theory where the defendant in the crowded reception room of a railroad station
engaged in a shootout, causing the death of an innocent bystander).
N.C. Gen. Stat. § 14-17 previously classified all second-degree murders,
regardless of malice theory, as Class B2 felonies. See N.C. Gen. Stat. § 14-17(b) (2011)
(“[A]ny person who commits [second-degree] murder shall be punished as a Class B2
felon.”). In 2012, our General Assembly amended this statute, reclassifying second-
degree murder as a Class B1 felony, except under two situations where it would
remain a Class B2 felony. N.C. Gen. Stat. § 14-17(b) (2015) now provides in pertinent
part:
(b) . . . . Any person who commits second degree murder
shall be punished as a Class B1 felon, except that a person
who commits second degree murder shall be punished as a
Class B2 felon in either of the following circumstances:
(1) The malice necessary to prove second degree
murder is based on an inherently dangerous act or
omission, done in such a reckless and wanton
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manner as to manifest a mind utterly without
regard for human life and social duty and
deliberately bent on mischief.
(2) The murder is one that was proximately caused
by the unlawful distribution of opium or any
synthetic or natural salt, compound, derivative, or
preparation of opium, or cocaine or other substance
described in G.S. 90-90(1)d., or methamphetamine,
and the ingestion of such substance caused the death
of the user.
The plain language of this amendment, that persons convicted of second-degree
murder “shall be punished as a Class B1 felon, except,” indicates clearly that the
legislature intended to increase the sentence for second-degree murder to Class B1
and to retain Class B2 punishment only where either statutorily defined situation
exists. Since only the second malice form recognized by judicial law, depraved-heart
malice, was codified as mandating B2 punishment, it is clear the legislature intended
a conviction based on the first or third malice forms to be treated as B1 second-degree
murder. Logically, then, in a situation where no evidence is presented that would
support a finding that an accused acted with depraved-heart malice, specification of
malice theory would not provide clarity for sentencing purposes; it would be inferred
from a general verdict that the jury found the accused guilty of B1 second-degree
murder. Therefore, we conclude that amended N.C. Gen. Stat. § 14-17(b) does not
always require a jury to specify whether depraved-heart malice theory supported its
conviction.
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Additionally, section (b)(1) was drafted in a way virtually identical to the
language developed by our case law and the pattern jury instruction used to describe
depraved-heart malice. See Rich, 351 N.C. at 396, 527 S.E.2d at 304 (approving jury
instruction describing depraved-heart malice as acts “inherently dangerous to human
life . . . done so recklessly and wantonly as to manifest a mind utterly without regard
for human life and social duty and deliberately bent on mischief”). There is no
language indicating an intent to limit depraved-heart malice as statutorily defined to
only instances involving the reckless driving of an impaired driver. Thus, we
interpret section (b)(1) as contemplating all forms of depraved-heart malice.
B. Malice Theory Supporting the Jury’s Verdict
Defendant contends the trial court improperly sentenced him as a B1 felon
based on the jury’s general verdict, since the evidence presented may have supported
a finding that he acted with depraved-heart malice. Therefore, defendant argues, the
jury’s verdict failing to specify whether depraved-heart malice theory supported its
conviction did not authorize the trial judge to sentence him as a B1 felon but requires
that he be resentenced as a B2 felon. We disagree.
“When a judge inflicts punishment that the jury’s verdict alone does not allow
. . . the judge exceeds his proper authority.” Blakely v. Washington, 542 U.S. 296, 304
(2004) (internal citation omitted); State v. Norris, 360 N.C. 507, 516, 630 S.E.2d 915,
921 (“[T]rial courts are limited to whatever punishment the jury’s verdict
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authorizes.”), cert. denied, 549 U.S. 1064 (2006). We review de novo whether the
sentence imposed was authorized by the jury’s verdict. See, e.g., State v. Silhan, 302
N.C. 223, 261–62, 275 S.E.2d 450, 477–78 (1981) (reviewing de novo whether the
defendant’s sentence for an underlying felony was supported by a general verdict
failing to specify which theory presented, (1) premedication and deliberation or (2)
felony murder, supported the jury’s finding that the defendant was guilty of first-
degree murder), abrogated on other grounds by State v. Sanderson, 346 N.C. 669, 488
S.E.2d 133 (1997).
Additionally, “[w]here the jury is presented with more than one theory upon
which to convict a defendant and does not specify which one it relied upon to reach
its verdict, ‘[s]uch a verdict is ambiguous and should be construed in favor of [the]
defendant.’ ” State v. Daniels, 189 N.C. App. 705, 709, 659 S.E.2d 22, 25 (2008)
(quoting State v. Whittington, 318 N.C. 114, 123, 347 S.E.2d 403, 408 (1986) (citation
omitted)). “ ‘This Court is not free to speculate as to the basis of a jury’s verdict.’ ” Id.
(quoting Whittington, 318 N.C. at 123, 347 S.E.2d at 408). However, “[a] verdict may
be given . . . a proper interpretation by reference to the indictment, the evidence, and
the instructions of the court.” State v. Abraham, 338 N.C. 315, 359, 451 S.E.2d 131,
155 (1994) (quoting State v. Hampton, 294 N.C. 242, 247–48, 239 S.E.2d 835, 839
(1977)).
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Defendant argues that the evidence presented may have supported a finding
by the jury that he acted with B2 depraved-heart malice. Defendant cites to State v.
Lilliston support his position that depraved-heart malice has been established where
the reckless use of a deadly weapon caused another’s death and points to the evidence
presented at trial that (1) defendant and Brian had neither a prior relationship nor
previous animosity between each other; and (2) defendant and Brian were extremely
intoxicated. Defendant argues:
Taking all of this evidence together, a reasonable juror
could conclude that Brian[’s] death from the knife wounds
to his neck . . . were . . . the product of reckless and wanton
acts by a man whose mind and judgment was so impaired
by alcohol that he engaged in extremely dangerous acts
with [a] knife in complete disregard for human life, acts
which manifested a depraved mind deliberately bent on
mischief.
We disagree.
In Lilliston, our Supreme Court held that the reckless use of a deadly weapon
constituted a depraved-heart malice theory supporting a murder conviction. 141 N.C.
at 651, 54 S.E. at 427. In that case, the defendant and another man “were at a house
of ill fame engaged in gambling and drinking” when “a difficulty sprung up . . .
between th[em] over charges of cheating.” Id. The next day at the railroad station
“in the crowded reception room they engaged in shooting at each other; the next room,
separated only by a glass partition, being occupied by ladies and children.” Id.
[The other man] fired two shots, and then ran out of the
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east door, [the defendant] fired five shots; and these two
men, who showed this contemptuous defiance of law, and
of the lives of so many peaceable people who were entitled
to the protection of the law in their lives and persons,
escaped unharmed, while one bystander was killed,
another seriously wounded, and others narrowly escaped.
Id. Based on those facts, the Lilliston Court concluded that the men acted with
depraved-heart implied malice sufficient to support murder by willingly engaging in
a shootout in a crowded place when it was highly probable someone would be injured:
The homicide occurred in a crowded waiting room. The
doctrine is well settled that malice is implied when an act
dangerous to others is done so recklessly or wantonly as to
evince depravity of mind and disregard of human life, and,
if the death of any person is caused by such an act, it is
murder. The most frequent instance of this species of
murder is where death is caused by the reckless discharge
of firearms under such circumstances that some one would
probably be injured, and even where the discharge was
accidental, resulting from handling the weapon in a
threatening manner it was held murder.
Id. (citations and internal quotation marks omitted).
Here, there is simply no evidence which would have supported a finding of
depraved-heart malice or an instruction on that theory. Unlike in Lilliston, where
the defendant was convicted of second-degree murder of an innocent bystander, no
evidence was presented that defendant intended to kill someone other than Brian but
slashed his neck by accident. The evidence neither suggested that defendant slashed
around a knife so recklessly or wantonly that he inadvertently killed someone nor
that defendant used an imprecise weapon or aimed so indiscriminately as to manifest
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a mind utterly without regard for human life and social duty. The evidence here
showed that the repeated knife cuts were deliberately aimed at Brian’s neck.
In this case, defendant was indicted for first-degree murder. The State
proceeded under a deadly weapon implied malice theory, which falls into the third
malice category: That “ ‘condition of mind which prompts a person to take the life of
another intentionally without just cause, excuse, or justification.’ ” Coble, 351 N.C.
at 451, 527 S.E.2d at 47 (quoting Reynolds, 307 N.C. at 191, 297 S.E.2d at 536).
“[T]he third type of malice is established by ‘intentional infliction of a wound
with a deadly weapon which results in death.’ ” Id. (quoting Reynolds, 307 N.C. at
191, 297 S.E.2d at 536). “[M]alice is presumed where the defendant intentionally
assaults another with a deadly weapon, thereby causing the other’s death.” State v.
McNeill, 346 N.C. 233, 238, 485 S.E.2d 284, 287 (1997) (citation omitted), cert. denied,
522 U.S. 1053 (1998). A butcher knife is a deadly weapon. See, e.g., State v. Uvalle,
151 N.C. App. 446, 455, 565 S.E.2d 727, 733 (2002) (citations omitted). However,
deadly weapon implied malice is “not a conclusive, irrebuttable presumption.” State
v. Debiase, 211 N.C. App. 497, 509–10, 711 S.E.2d 436, 444–45 (2011) (citations
omitted) (holding that the mandatory presumption of deadly weapon malice was
converted to a permissible inference when the defendant presented “evidence
concerning the reason for which, manner in which, and circumstances under which
he used” the deadly weapon).
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At trial, the State introduced evidence of deadly weapon implied malice by
showing that defendant repeatedly slashed Brian’s neck with a butcher knife, one
large cut severing Brian’s right internal jugular vein, proximately causing his death.
Defendant wholly denied cutting Brian’s neck with a knife and blamed Mark.
Defendant never specifically rebutted deadly weapon implied malice nor advanced a
depraved-heart malice theory argument. Nor did defendant request that the judge
instruct the jury on depraved-heart malice. Accordingly, the trial judge submitted
the charge under an express malice and deadly weapon implied malice theory and
elected not to instruct on a depraved-heart malice theory. The judge instructed:
For you to find the defendant guilty of first-degree murder
the State must prove . . . that the defendant intentionally
and with malice killed the victim with a deadly weapon.
Malice means not only hatred, ill will, or spite, as it is
ordinarily understood to be sure that is malice, but it also
means that condition of mind which prompts a person to
take the life of another intentionally, or to intentionally
inflict serious bodily harm which proximately results in
another’s death without just cause, excuse, or justification.
If the State proves beyond a reasonable doubt that the
defendant intentionally killed the victim with a deadly
weapon, or intentionally inflicted a wound upon the victim
with a deadly weapon that proximately caused the victim’s
death you may infer first that the killing was unlawful, and
second, that it was done with malice, but you are not
compelled to do so. You may consider this, along with all
other facts and circumstances, in determining whether the
killing was unlawful and whether it was done with malice.
A deadly weapon is a weapon which is likely to cause death
or serious injury. In determining whether the instrument
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involved was a deadly weapon you should consider its
nature, the manner in which it was used, and the size and
strength of the defendant as compared to the victim. A
knife is a deadly weapon.
....
If you find from the evidence beyond a reasonable doubt
that . . . the defendant, acting either by himself or acting
together with other persons, intentionally and with malice
wounded the victim with a deadly weapon thereby
proximately causing the victim’s death it would be your
duty to return a verdict of guilty of second-degree murder.
When considering the evidence presented and the instruction given, we
conclude that there was no ambiguity in the jury’s general verdict. No evidence
presented would have supported a finding that defendant acted with B2 depraved-
heart malice. The evidence presented supported only B1 theories of malice and the
jury was instructed only on those theories. Therefore, although the jury was not
instructed to answer under what malice theory it convicted defendant of second-
degree murder, it is readily apparent from the evidence presented and instructions
given that the jury, by their verdict, found defendant guilty of B1 second-degree
murder. See, e.g., State v. Wiggins, 161 N.C. App. 583, 593, 589 S.E.2d 402, 409 (2003)
(“[T]he verdict sheets did not lack the required degree of specificity needed for a
unanimous verdict if they could be properly understood by the jury based on the
evidence presented at trial.” (citation omitted)). Therefore, we hold that the trial
judge properly sentenced defendant as a B1 felon.
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STATE V. LAIL
Opinion of the Court
However, we note that a general verdict would be ambiguous for sentencing
purposes where the jury is charged on second-degree murder and presented with
evidence that may allow them to find that either B2 depraved-heart malice or another
B1 malice theory existed. In such a situation, courts cannot speculate as to which
malice theory the jury used to support its conviction of second-degree murder. See
State v. Goodman, 298 N.C. 1, 16, 257 S.E.2d 569, 580 (1979) (“If the jury’s verdict
were general, not specifying the theory upon which guilt was found, the court would
have no way of knowing what theory the jury used and would not have proper basis
for passing judgment.”). As a practical matter, where a general verdict would be
ambiguous for sentencing purposes, trial courts should frame a special verdict
requiring the jury to specify under which available malice theory it found the
defendant guilty of second-degree murder. See State v. Blackwell, 361 N.C. 41, 46–
49, 638 S.E.2d 452, 456–58 (2006) (encouraging the use of special verdicts in criminal
cases where appropriate and recognizing that “special verdicts are a widely accepted
method of preventing Blakely error”); State v. Sargeant, 206 N.C. App. 1, 10, 696
S.E.2d 786, 793 (2010) (“[A] jury’s specification of its theory . . . is for purposes of
sentencing proceedings.”), writ allowed, 364 N.C. 331, 700 S.E.2d 743 (2010), and
aff’d as modified, 365 N.C. 58, 707 S.E.2d 192 (2011).
III. Conclusion
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STATE V. LAIL
Opinion of the Court
N.C. Gen. Stat. § 14-17(b) reclassified second-degree murder into a Class B2 or
a Class B1 felony based, in part, on whether depraved-heart malice supported the
conviction. Where a jury is charged on second-degree murder and presented with
evidence that may support a finding that an accused acted with B2 depraved-heart
malice, trial courts for sentencing purposes should require the jury by special verdict
to designate under which available malice theory it found the defendant guilty of
second-degree murder. However, where, as here, no evidence presented would
support a finding of B2 depraved-heart malice, a trial court may properly deduce from
a general verdict that the jury found the defendant guilty of B1 second-degree
murder. Accordingly, we find no error below and hold that the trial court properly
sentenced defendant as a B1 felon.
NO ERROR.
Judges HUNTER, JR. and ENOCHS concurs.
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