State v. Mosley , 256 N.C. App. 148 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-345
Filed: 17 October 2017
McDowell County, No. 13 CRS 50608
STATE OF NORTH CAROLINA
v.
DARIAN JARELLE MOSLEY
Appeal by defendant from judgment entered 24 May 2016 by Judge R. Gregory
Horne in McDowell County Superior Court. Heard in the Court of Appeals
21 September 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Steven
Armstrong, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender John F.
Carella, for defendant-appellant.
ARROWOOD, Judge.
Darian Jarelle Mosley (“defendant”) appeals from judgment entered upon his
conviction for second degree murder. For the following reasons, we vacate and
remand to the trial court for resentencing.
I. Background
STATE V. MOSLEY
Opinion of the Court
On 20 May 2013, a McDowell County Grand Jury indicted defendant on one
charge of first degree murder. The case was called for a jury trial in McDowell County
Superior Court on 16 May 2016, the Honorable R. Gregory Horne, Judge, presiding.
The evidence presented at trial tended to show the following facts: Defendant
and the victim were in a relationship. In the early morning hours of 16 April 2013,
defendant and the victim had an argument, during the course of which the victim was
fatally shot in the abdomen by a .22 rifle held by defendant.
Defendant did not deny that he shot the victim, but stated it was an accident.
Defendant testified that he left the victim’s residence following the initial dispute,
but returned shortly thereafter to gather his belongings, specifically his clothes and
his rifle. Defendant testified that as he was leaving with his belongings, he stopped
in the bedroom doorway to talk to the victim, who was in the bedroom. Defendant
had a plastic bag of clothes in his right hand and the rifle in his left hand with his
finger around the trigger. Defendant also testified that “[the victim] reached towards
the gun, and [he] took it away from her, and that’s when the gun went off.”
On cross-examination, defendant further testified that the victim wanted him
to put this belongings down and as he pushed the victim away, she grabbed the barrel
of the rifle and it went off. Defendant knew how to fire the rifle, but never had any
safety training. Defendant stated that he always carried the rifle around with his
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STATE V. MOSLEY
Opinion of the Court
finger on the trigger and that he never used the safety. Defendant also testified he
did not know the rifle was loaded.
At the conclusion of the evidence, the trial court instructed the jury on first
degree murder and the lesser included offenses of second degree murder, voluntary
manslaughter, and involuntary manslaughter in accordance with N.C.P.I--Crim.
206.13, the pattern instruction for first degree murder where a deadly weapon is
used, not involving self-defense, covering all lesser included homicide offenses.
Included in the instructions for first degree murder, the trial court instructed the jury
on the definitions of express malice and deadly weapon implied malice. The trial
court did not give the additional definition of malice included in N.C.P.I--Crim.
206.30A when it instructed on second degree murder, only stating that malice was
required. On 24 May 2016, the jury returned a general verdict finding defendant
guilty of second degree murder. The trial judge entered judgment sentencing
defendant to 240 to 300 months imprisonment for second degree murder, a term
within the presumptive range of punishment for a Class B1 felony. Defendant gave
notice of appeal in open court.
II. Discussion
On appeal, defendant argues the trial court erred in sentencing him for second
degree murder as a Class B1 offense because “[t]he jury’s verdict of second-degree
murder failed to support the trial court’s imposition of a Class B1 sentence and
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STATE V. MOSLEY
Opinion of the Court
supported only a sentence for a Class B2 offense.” Thus, defendant asserts this Court
must remand for resentencing. Alternatively, defendant argues that if this Court
denies relief under his first argument, this Court should order a new trial because
the trial court plainly erred in omitting an “inherently dangerous acts” definition of
malice from the second degree murder instructions. We reach only the first issue on
appeal, which is similar to an issue recently addressed by this Court in State v. Lail,
__ N.C. App. __, 795 S.E.2d 401 (2016), disc. review denied, __ N.C. __, 796 S.E.2d 927
(2017).1 “We review de novo whether the sentence imposed was authorized by the
jury’s verdict.” Id. at __, 795 S.E.2d at 408.
In Lail, the defendant appealed from a judgment sentencing him as a B1 felon
for second degree murder. Specifically,
[the d]efendant conted[ed] 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, [the] defendant argue[d], 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.
Id. at __, 795 S.E.2d at 408. Before addressing the defendant’s argument, this Court
explained the relevant law on malice as it relates to second degree murder as follows:
Malice is an essential element of second-degree murder.
See, e.g., State v. Thomas, 325 N.C. 583, 604, 386 S.E.2d
1 We note that this Court issued its opinion in Lail after the trial court entered judgment in
the present case. Thus, the trial court did not have the benefit of Lail’s guidance.
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STATE V. MOSLEY
Opinion of the Court
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)).
Id. at __, 795 S.E.2d at 407. The Court further explained that while “depraved-heart
malice” had been frequently used to support second degree murder convictions in
drunk driving cases, it was not limited to such situations. Id. at __, 795 S.E.2d at
407.
Prior to 2012, all second degree murders were classified as Class B2 felonies.
In 2012, our General Assembly amended N.C. Gen. Stat. § 14-17 to classify all second
degree murders as Class B1 felonies except for in two specific exceptions, in which
second degree murder remains a Class B2 felony. See 2012 N.C. Sess. Laws ch. 165,
§ 1. The exception at issue here is found in N.C. Gen. Stat. § 14-17(b)(1), which states:
The malice necessary to prove second degree murder is
based on an inherently dangerous act or omission, done in
such a reckless and wanton manner as to manifest a mind
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STATE V. MOSLEY
Opinion of the Court
utterly without regard for human life and social duty and
deliberately bent on mischief.
N.C. Gen. Stat. § 14-17(b)(1) (2015). This exception is the previous common law
definition of depraved-heart malice. See Coble, 351 N.C. at 450-51, 527 S.E.2d at 47.
In Lail, the Court rejected the defendant’s contention finding that
[n]o evidence presented would have supported a finding
that [the] 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 [was] readily apparent from the evidence
presented and instructions given that the jury, by their
verdict, found defendant guilty of B1 second-degree
murder.
__ N.C. App. at __, 795 S.E.2d at 410. Pertinent to this case, however, this Court
noted 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.”).
Id. at __, 795 S.E.2d at 411.
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STATE V. MOSLEY
Opinion of the Court
In the present case, the jury unanimously convicted defendant of second degree
murder. The jury verdict, however, was silent on whether the second degree murder
was a Class B1 or a Class B2 offense. Defendant’s first argument on appeal is that
the jury’s general verdict of guilty of second degree murder is ambiguous for
sentencing purposes because there was evidence in this case of depraved-heart malice
to support a verdict of guilty of a Class B2 second degree murder. We agree.
As this Court made clear in Lail, our Supreme Court has held that “the reckless
use of a deadly weapon constituted a depraved-heart malice theory supporting a
murder conviction.” Id. at __, 795 S.E.2d at 409 (citing State v. Lilliston, 141 N.C.
857, 859, 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)).
In the case sub judice, unlike in Lail, there was evidence of defendant’s reckless
use of a rifle, a deadly weapon. Specifically, defendant testified that as he was
arguing with the victim, he was holding the rifle with his finger on the trigger and
without the safety on. Defendant stated this was how he always handled the rifle –
finger on the trigger and no safety. Defendant testified that in this instance, the gun
went off when the victim grabbed the barrel of the rifle and he pushed her away.
There was also testimony about the safety on the rifle and testimony from a firearm
expert that “[y]ou would never teach anyone to have their finger on the trigger until
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STATE V. MOSLEY
Opinion of the Court
they are ready to fire.” Moreover, the State argued to the jury that defendant’s
actions amounted to more than criminal negligence, claiming that defendant’s
handling of the rifle amounted to “gross recklessness or carelessness as to amount to
the heedless indifference to the safety and rights of others.”
In response to defendant’s argument that the evidence supported a depraved-
heart theory of malice and a Class B2 second degree murder, the State points to other
evidence presented in the case from which the State claims the trial judge could have
correctly concluded that the Class B1 felony sentence was proper. That evidence,
however, is not in question. There is no doubt that there is evidence of malice
supporting a Class B1 second degree murder. The issue presently before this Court
is whether there is also evidence from which the jury could have found depraved-
heart malice to convict defendant of a Class B2 second degree murder. We hold there
is such evidence in this case.
Because there was evidence presented which would have supported a verdict
on second degree murder on more than one theory of malice, and because those
theories support different levels of punishment under N.C. Gen. Stat. § 14-17(b), the
verdict rendered in this case was ambiguous. When a verdict is ambiguous, neither
we nor the trial court is free to speculate as to the basis of a jury’s verdict, and the
verdict should be construed in favor of the defendant. State v. Whittington, 318 N.C.
114, 123, 347 S.E.2d 403, 408 (1986); see also State v. Williams, 235 N.C. 429, 430, 70
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STATE V. MOSLEY
Opinion of the Court
S.E.2d 1, 2 (1952) (“Any ambiguity in a verdict will be construed in favor of the
defendant.”). Given the ambiguity in the second degree murder verdict in this case,
we vacate defendant’s sentence and remand the matter for resentencing for second
degree murder as a Class B2 felony offense.
In order to avoid such ambiguity in the future, we recommend two actions.
First, the second degree murder instructions contained as a lesser included offense in
N.C.P.I.--Crim. 206.13 should be expanded to explain all the theories of malice that
can support a verdict of second degree murder, as set forth in N.C.P.I.--Crim.
206.30A. Secondly, when there is evidence to support more than one theory of malice
for second degree murder, the trial court should present a special verdict form that
requires the jury to specify the theory of malice found to support a second degree
murder conviction.
III. Conclusion
For the reasons discussed above, we hold the trial court erred in sentencing
defendant for second degree murder as a Class B1 offense. Thus, we vacate the
judgment and remand the matter for resentencing for second degree murder as a
Class B2 felony offense.
VACATED AND REMANDED.
Judges HUNTER, JR., and DILLON concur.
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