The opinion
Judge Lewis
dissenting.
Because I do not believe sufficient evidence was presented to warrant submission of second-degree murder to the jury, I respectfully dissent. I note first that defendant filed a 41-page brief with this Court, in direct contravention of N.C.R. App. P. 28(j). Regardless of that ground for dismissing the appeal, however, I believe there is no error in this case.
Defendant presented no evidence at trial. The evidence presented by the State’s witnesses tended to show that on the night of the murder, defendant and the victim had been drinking. Defendant’s wife heard the two arguing while they were seated in the living room. Defendant’s 30.06 rifle was not in its normal location in the bedroom closet, but rather was against the sofa beside defendant. Defendant’s wife went outside briefly to feed her cat; while she was outside she heard a shot. When she returned to the living room, she smelled gun powder and saw defendant standing over the victim with the rifle pointed at the victim. The victim had been shot once through his right eye. Rather than call the police as his wife wanted to do, defendant threatened his wife and convinced her to help him hide the body and clean the living room. Defendant hid the body in a shed and later in the family car for months; defendant related elaborate stories to explain the stench of the rotting corpse. As the majority opinion correctly notes, this evidence is sufficient to support a finding of premeditated and deliberated murder. The majority believe, however, that the jury reasonably might find defendant lacked premeditation and deliberation when he killed the victim. The majority opinion holds a jury might reasonably conclude that defendant panicked and hid the body, or that defendant was legally provoked by the victim.
Defendant presented no evidence that he hid the body in panic after murdering the victim without premeditation and deliberation. Such a rationale for defendant’s behavior is mere conjecture and not supported by the evidence. Furthermore, the majority opinion asserts that testimony from defendant’s wife that the two men argued before the murder might raise the inference that defendant was provoked by the victim. “Anger and emotion frequently coincide with murder, but a court should instruct on murder in the second degree only when the evidence would permit a reasonable finding that the defendant’s anger and emotion were strong enough to disturb the defendant’s ability to reason.” State v. Perry, 338 N.C. 457, 463 , 450 S.E.2d 471, 474 (1994). No evidence whatsoever was presented that defendant *614 was so enraged as to be unable to reason, premeditate, or deliberate. Our Supreme Court explained:
[E]vidence that the defendant and the victim argued, without more, is insufficient to show that the defendant’s anger was strong enough to disturb his ability to reason. Without evidence showing that the defendant was incapable of deliberating his actions, the evidence could not support the lesser included offense of second-degree murder.
State v. Solomon, 340 N.C. 212, 222 , 456 S.E.2d 778, 785 , cert. denied, 516 U.S. 996 , 133 L. Ed. 2d 438 (1995). Defendant presented no such evidence, and as such a verdict of second-degree murder would not be supported by the evidence. See State v. Rose, 339 N.C. 172, 195 , 451 S.E.2d 211, 224 (1994), cert. denied, 515 U.S. 1135 , 132 L. Ed. 2d 818 (1995).
The evidence viewed as a whole does not support the submission of a second-degree murder charge to the jury. The test is not whether the jury could have convicted defendant of a lesser included offense, but whether the State showed each element of the crime charged with no conflicting evidence presented. See State v. Walker, 343 N.C. 216, 221-22 , 469 S.E.2d 919, 922 , cert. denied, 117 S.Ct. 254 , 136 L. Ed. 2d 180 (1996). Here, there was no conflicting evidence from defendant or anyone else to indicate that defendant did not commit premeditated and deliberated murder. Defendant took the rifle from its normal place in the home, stood, pointed the gun at the victim, inflicted a fatal wound, and enlisted help in hiding the victim’s body and other evidence of his crime. Indeed, the victim apparently remained seated throughout most of his stay and was not armed. As stated above, there was no evidence of provocation by the victim, defendant’s conduct after the crime was quite incriminating, and the parties had disagreed. These facts are evidence of premeditation and deliberation. See State v. Williams, 308 N.C. 47, 69 , 301 S.E.2d 335, 349 , cert. denied, 464 U.S. 865 , 78 L. Ed. 2d 177 (1983). Lesser included instructions are not to be given indiscriminately, see State v. Strickland, 307 N.C. 274, 286 , 298 S.E.2d 645, 654 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775 (1986), and here the evidence raised no “material question as to the existence of premeditation [or] deliberation.” State v. Brown, 339 N.C. 426, 439 , 451 S.E.2d 181, 189 (1994), cert. denied, 516 U.S. 825 , 133 L. Ed. 2d 46 (1995). Accordingly, a second-degree murder instruction had no basis, and the jury was properly instructed. I find no error.