State v. Patterson

Justice ExuM

dissenting:

I concur in the majority’s resolution of every issue addressed so ably in the opinion by Justice Moore. There is, however, a fundamental error in the trial judge’s instructions to the jury, not addressed by the majority and not excepted to or assigned as error by the defendant, which, nevertheless, in my opinion, goes to the heart of this case and because of which I vote for a new trial. Since this is a capital case and the error as I perceive it highly prejudicial we should, under our long standing rule, take it up sua sponte. State v. Buchanan, 287 N.C. 408 , 215 S.E. 2d 80 (1975) ; State v. Fowler, 270 N.C. 468 , 155 S.E. 2d 83 (1967) ; State v. McCoy, 236 N.C. 121 , 71 S.E. 2d 921 (1952).

While the majority correctly concludes there was sufficient evidence for the jury to find premeditation and deliberation, there is also evidence from which the jury could find the intent to kill, even if formed sometime before the act of killing and therefore premeditated, was not deliberated but was instead provoked by the deceased’s refusal to leave the house as defendant ordered her to do, her incessant arguing, “talking back” to and cursing defendant. Indeed, this seems to be the essence of the contest at trial.

The only evidence of the manner of the killing and the events which immediately preceded it comes from the defend *575 ant’s pre-trial confession offered by the State against him at trial. This confession, it seems clear to me, is susceptible to two interpretations, either of which could have been reasonably adopted by the jury. One is that when defendant told deceased that “he would give her fifteen minutes to get out” of the house, he at that time determined that he would kill her if she didn’t, got the meat cleaver from the kitchen, and deliberated the killing while he waited for the fifteen minutes to elapse. When deceased thereafter refused to leave he executed his previously formed and deliberated intent by killing her with the meat cleaver. Under this interpretation of his confession all of the elements of first degree murder are amply satisfied. It can also reasonably be inferred from his confession that defendant had no intent to kill the deceased when he demanded that she leave the house in fifteen minutes but that this intent was formed suddenly at the conclusion of the fifteen minute period and was provoked by deceased’s fifteen minutes of argument and “back talking and cursing.” The defendant could then have gotten the meat cleaver and killed the deceased in a fit of rage. Thus the crucial question for the jury in this case was whether defendant did indeed deliberate, as distinguished from premeditate, the killing or did he form the intent to kill during a sudden passion provoked by the deceased herself which precluded any such deliberation.

Regarding the element of deliberation the trial judge told the jury only that “the State must satisfy you . . . beyond a reasonable doubt . . . that the defendant acted with deliberation which means that he acted while he was in a cool state of mind.” (Emphasis supplied.) This bare bones definition of deliberation in the context of the evidence in this case was not sufficient. General Statute 1-180 requires the trial judge.to “declare and explain the law arising on the evidence. . . .” How much the law needs to be explained depends on what evidence is presented. State v. Cole, 270 N.C. 382 , 154 S.E. 2d 506 (1967). Merely to define an element of a criminal offense may be an insufficiency which prejudices the defendant when that element is the very nub of the case. State v. Lawrence, 262 N.C. 162 , 136 S.E. 2d 595 (1964) ; State v. Lunsford and Sawyer, 229 N.C. 229 , 49 S.E. 2d 410 (1948). See also State v. Thomas, 118 N.C. 1113 , 24 S.E. 431 (1896). Premeditation is a comparatively easy concept for the jury meaning simply some thought beforehand. Deliberation, however, in the context of this case, needs more careful elucidation.

*576 Prior to 1893 there were no degrees of murder in North Carolina. In 1893 murder was divided into two degrees: first degree murder, punishable by death, consisted only of murder committed in the perpetration of another felony and murder which was premeditated and deliberated. All other murder was murder in the second degree. N. C. Pub. Laws 1893, ch. 85; State v. Benton, 276 N.C. 641, 657 , 174 S.E. 2d 793, 803, 804 (1970). In the very first case construing the new murder statute, State v. Fuller, 114 N.C. 885, 902 , 19 S.E. 797, 802 (1894), this Court said:

The theory upon which this change has been made is that the law will always be executed more faithfully when it is in accord with an enlightened idea of justice. Public sentiment has revolted at the thought of placing on a level in the courts one who is 'provoked by insulting words (not deemed by the common law as any provocation whatever) to kill another with a deadly weapon, with him who waylays and shoots another in order to rob him of his money, or poisons him to gratify an old grudge. (Emphasis supplied.)

Two years later in State v. Thomas, supra, the issue raised in the case now before us was squarely presented. In Thomas , defendant was convicted of first degree murder of his wife and sentenced to death. Testimony tended to show that he and his wife were in a fishing boat near Mason’s Point on Bay River in Pamlico County. Witnesses heard screaming and sounds like a beating from the direction of the boat. They also heard defendant say, “If you don’t hush I will take something and kill you” after which a “heavy lick” was heard. One witness saw defendant strike his wife and throw her overboard. Defendant returned in the boat alone. The next day her dead body was removed from the water in the area where she and her husband had been. A physician who did the post-mortem examination testified that she died of a broken neck, that she could not have drowned, and that she was dead before she went into the water. This Court held that it was error entitling defendant to a new trial for the trial judge to have charged the jury “in such a way as might well have produced the impression on their minds that they must convict of either murder [in the first degree] or manslaughter,” Id. at 1124 , 24 S.E. at 434 , and “in omitting to explain to the jury the application of the testimony to the *577 theory of murder in the second degree. . . Id. at 1127 , 24 S.E. at 486 . This Court said, Id. at 1124 , 24 S.E. at 435 :

If [the jury] concluded that there was a quarrel or argument, and in the heat of sudden passion, engendered by disagreeable language, which would not have been provocation sufficient to bring the offense within the definition of manslaughter, the crime . . . was murder in the second degree.

In reaching this conclusion this Court analyzed the reason for the division of murder into two degrees and said, 118 N.C. at 1122 , 24 S.E. at 434 :

The innate sense of justice implanted in the breast of every good man demanded that a distinction should be drawn between cases where there was actual though not legal 'provocation and those where a fixed pu/rpose was shown, whether from malignity or a mercenary desire for money. (Emphasis supplied.)

Thus Thomas added flesh to the concepts of premeditation and deliberation by pointing to the kind of provocation that might negate them.

Nine years later in State v. Exum, 138 N.C. 599, 617-18 , 50 S.E. 283, 289 (1905) the two terms were separately analyzed :

The two terms, “deliberate” and “premeditate,” while frequently used in this connection as interchangeable, because perhaps the facts do not always require that they should be spoken of separately, have not exactly the same meaning. “Premeditate” involves the idea of prior consideration, while “deliberation” rather indicates reflection, a weighing of the consequences of the act in more or less calmness. (Emphasis supplied.)

Although the trial judge explained the meaning only of premeditation, this Court found no error in Exum since in his definition of premeditation, he included concepts applicable to deliberation and specifically excluded “all idea of a killing from passion suddenly aroused,” and directed the jury that before it could convict of a higher crime it must find that the killing was “from a fixed determination previously formed after weighing the matter.” Id. (Emphasis supplied.)

*578 Two years later this Court retreated slightly from its position in Thomas that any actual provocation could preclude deliberation. State v. McDowell, 145 N.C. 563 , 59 S.E. 690 (1907). In McDowell an argument was provoked by defendant's companion with a train flagman. Defendant, sympathizing with his companion, prepared to do his part and readied his pistol. The Court characterized the fancied wrong to defendant as trivial in nature and refused to hold that if the defendant killed in revenge for the treatment his companion was receiving, it would only be murder in the second degree.

Two subsequent cases applied the McDowell limitation on provocation to situations where, objectively, the deceased did nothing to provoke the defendant to anger but instead tried to placate him. State v. Coffey, 174 N.C. 814 , 94 S.E. 416 (1917) ; State v. Benson, 183 N.C. 795 , 111 S.E. 869 (1922). In Benson prior definitions of deliberations were expanded, 183 N.C. at 798 , 111 S.E. at 871 :

Deliberation means that the act is done in a cool state of the blood. It does not mean brooding over it or reflecting upon it for a week, a day, or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of the blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. S. v. Coffey, 174 N.C. 814 .

Although this definition of deliberation has been subsequently quoted by this Court many times, portions of it are only dictum in Benson and seem to me defective in two respects. First, the issue is not whether the intention to kill was executed while in a cool state of blood. To be sure a killing so executed has undoubtedly been deliberated. However, “[i]f the design to kill was formed with deliberation and premeditation, it is immaterial that defendant was in a passion or excited when the design was carried into effect.” 40 C.J.S. Homicide § 33(d) (1944). See State v. Britt, 285 N.C. 256, 262 , 204 S.E. 2d 817, 822 (1974). The true test is whether the intent to kill was at any time considered, or formed, in a cool, or deliberative, state of mind. Second, the provocation need not be “legal” nor the passion aroused lay some “lawful or just cause.” “Legal” provocation is what is required to reduce murder to manslaughter *579 and a lawful or just cause for the killing would require an acquittal. The holding of Thomas, Benson and Coffey is that any actual provocation can preclude deliberation and reduce the crime to second degree murder provided it is more than trivial and directed toward defendant himself. I can find no case which holds to the contrary. That the true test of whether deliberation exists was not really changed by Benson is shown by State v. Evans, 198 N.C. 82, 85 , 150 S.E. 678, 680 (1929) where this Court said, “The test is involved in the question whether the accused acted under the influence of ungovernable passion, or whether there was evidence of the exercise of reason and judgment.”

In State v. French, 225 N.C. 276 , 34 S.E. 2d 157 (1945), this Court split on the meaning of the prior cases on deliberation. In French the killing occurred during an argument between the defendant and the deceased. Both majority and dissenting opinions agreed that the trial judge (Judge Bobbitt, later Chief Justice of this Court) was required to explain deliberation as distinguished from premeditation. Judge Bobbitt’s instructions under consideration were:

[T]he Court charges you that if the State has satisfied you from the evidence beyond a reasonable doubt that the defendant unlawfully killed Duck LeGrand with malice, and has further satisfied you from the evidence beyond a reasonable doubt that prior to the time the defendant inflicted upon Duck LeGrand the fatal wound, the defendant had formed a fixed purpose in his mind to kill her, and that, pursuant to that purpose he did kill Duck LeGrand because of the purpose in his mind, and not because of any legal provocation given him, then the Court charges you that if the State has so satisfied you from the evidence beyond a reasonable doubt, the defendant would be guilty of murder in the first degree, and it would be your duty to so find.

The majority approved these instructions and said they compared favorably to those approved in State v. McClure, 166 N.C. 321 , 81 S.E. 458 (1914), which the Court quoted as follows:

“Deliberation means to think about, to revolve over in one’s mind; and if a person thinks about the performance of an act and determines in his mind to do that act, he had deliberated upon the act, gentlemen. Premeditation means *580 to think beforehand, think over a matter beforehand; and where a person forms a purpose to kill another, and weighs this purpose in his mind long enough to form a fixed design to kill at a subsequent time, no matter how soon or how late, and pursuant to said fixed design kills said person, this would be a killing with premeditation and deliberation, and would be murder in the first degree. And the court charges you if you should find beyond a reasonable doubt, gentlemen, that prior to the time he killed the deceased he formed the fixed purpose in his mind to kill him, and that pursuant to that purpose he did kill the deceased because of the purpose in his mind, and not because of any legal provocation that was given by the deceased, then the court charges you that the prisoner would be guilty of murder in the first degree, and it would be your duty to so find.”