# State v. Phipps > Supreme Court of North Carolina · June 25, 1992 · 331 N.C. 427 URL: https://www.frixlaw.com/law-library/cases/9574119 ## Case - **Full name:** State of North Carolina v. Mickey Alton Phipps - **Court:** Supreme Court of North Carolina - **Decided:** June 25, 1992 - **Citations:** 331 N.C. 427; 418 S.E.2d 178; 1992 N.C. LEXIS 415 - **Precedential status:** Published - **Opinion:** Dissent by Meyer - **Judges:** Whichard, Meyer, Mitchell, Lake - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9574119 ## How later opinions describe it (automated extraction) - holding that defendant who voluntarily accompanied officers to the police station in a police car, waited in a lobby with unlocked external doors, and was told more than once he was not under arrest, was not in custody - holding that a defendant who voluntarily rode to the station with officers in a police car, waited in a lobby with unlocked external doors, and was told more than once he was not under arrest, was not in custody ## Opinion text Justice Meyer dissenting. I do not agree with the majority’s conclusion that defendant’s “first-degree murder conviction may be upheld only by virtue of the felony murder rule” and that the Court must therefore “arrest judgment on the underlying felony, robbery with a dangerous *460 weapon.” I believe that the trial court properly refused to submit second-degree murder as a lesser offense of the charge of first-degree murder committed with premeditation and deliberation and that it committed no error requiring the reversal of defendant’s convictions or the sentences imposed thereon. It is not every case in which first-degree premeditated and deliberated murder is charged that an instruction on second-degree murder must be given. State v. Strickland, 307 N.C. 274, 284-85 , 298 S.E.2d 645, 653 (1983). Such an instruction must be given as a lesser offense of first-degree premeditated and deliberated murder only where the evidence presented at trial raises a genuine issue as to whether the defendant acted with premeditation and deliberation in the killing. In making this determination, the question is not whether the jury could convict defendant of second-degree murder but whether “the evidence, reasonably construed, tend[s] to show lack of premeditation and deliberation.” Id. at 287 , 298 S.E.2d at 654 . Relying on a portion of defendant’s confession, wherein defendant stated that the victim “smacked the hell out of [defendant],” tried to hit defendant with a chrome bar resembling a ratchet, and pulled a pocketknife on defendant, the majority states: [A] rational jury could have concluded that defendant killed [the victim] with malice but without premeditation and deliberation. ... If the jury believed his statement, it could have concluded that defendant only killed the victim as a result of the struggle that ensued after defendant pulled the victim back into the car and after the victim escalated the struggle by using deadly weapons to defend herself. I disagree. The evidence presented at defendant’s trial showed a ruthless killing committed by a man who had devised a plan to rob his employer and who had committed himself to using whatever force was necessary to carry out his plan. The evidence, viewed in a light most favorable to defendant, showed that the victim had refused to hand over the money to defendant and had “started out of the car” when defendant “grabbed her by the hair and pulled her into the car.” When the victim sought to defend herself, first with a ratchet and then with a pocketknife, defendant overcame the victim and responded by inflicting multiple blows to the victim’s *461 head. The uncontradicted evidence presented at trial showed that defendant inflicted eighteen blows to the victim’s head, all while she was alive. Many of the blows were inflicted with such force as to expose the victim’s skull. Not content with the fact that the victim was only stunned by the blows, defendant then proceeded to slash the victim’s throat, inflicting the four inch long, one and one-half inch wide fatal wound that completely severed the victim’s right jugular vein, partially severed the victim’s right common carotid artery, and cut the victim’s thyroid cartilage deeply enough to expose the victim’s windpipe. Having accomplished this, defendant then grabbed the deposit bags containing his employer’s money and fled the scene. In my opinion, the statement by defendant raises no question as to the premeditation and deliberation on the part of defendant. Even assuming that defendant had not formed an intent to kill the victim before he dealt the first blow to her head, I fail to see how any rational juror could have reasonably found that defendant, having dealt eighteen blows to the victim’s head, did not act with premeditation and deliberation when he subsequently slashed the victim’s throat and left her helpless, to bleed to death. Based on the overwhelming evidence of defendant’s guilt, the jury returned the only reasonable verdict, finding defendant guilty of first-degree murder based upon the theories of premeditation and deliberation and of felony murder. I find it beyond all reason and logic to conclude, as does the majority, that the jury may have found that defendant did not act with premeditation and deliberation had it been instructed on second-degree murder. I therefore dissent from the portion of the majority opinion that concludes that the trial court erred in failing to submit the charge of second-degree murder. Associate Justices MITCHELL and LAKE join in this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9574119. Public record. Not legal advice.