State v. Hill

Justice EXUM

dissenting in part and concurring in part.

I must respectfully dissent from that portion of the majority opinion which concludes that the evidence was sufficient to sustain a verdict of first degree murder on the theory of premeditation and deliberation. In order for deliberation to be present, the specific intent to kill necessary for first degree murder, as the majority notes, “must arise from ‘a fixed determination previously formed after weighing the matter.’ ” State v. Corn, 303 N.C. 293, 296-97 , 278 S.E. 2d 221, 223 (1981). “Deliberation means that the intent to kill was formed while defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation.” State v. Misenheimer, 304 N.C. 108, 113 , 282 S.E. 2d 791, 795 (1981). An intent to kill suddenly formed in the course of a quarrel or struggle with another and which is the product of that quarrel or struggle is not formed in a cool state of blood and cannot be the basis for a conviction of first degree murder. State v. Corn, supra; see also State v. Misenheimer, supra. In Corn this Court said:

After carefully considering the evidence presented in the case sub judice in the light most favorable to the State, we find that the State has failed to show by substantial evidence that defendant killed Lloyd F. Melton with premeditation and deliberation. The shooting was a sudden event, apparently brought on by some provocation on the part of the deceased. The evidence is uncontroverted that Melton entered defendant’s home in a highly intoxicated state, approached the sofa on which defendant was lying, and insulted defendant by a statement which caused defendant to reply ‘you son-of-a-bitch, don’t accuse me of that.’ Defendant immediately jumped from the sofa, grabbing the .22 caliber rifle which he normally kept near the sofa, and shot Melton several times in the chest. The entire incident lasted only a few moments.

*481 There is no evidence that defendant acted in accordance with a fixed design or that he had sufficient time to weigh the consequences of his actions. Defendant did not threaten Melton before the incident or exhibit any conduct which would indicate that he formed any intention to kill him prior to the incident in question. There was no significant history of arguments or ill will between the parties. Although defendant shot deceased several times, there is no evidence that any shots were fired after he fell or that defendant dealt any blows to the body once the shooting ended.

All the evidence tends to show that defendant shot Melton after a quarrel, in a state of passion, without aforethought or calm consideration. Since the evidence is insufficient to show premeditation and deliberation, we find that the trial court erred in instructing the jury that they could find defendant guilty of first degree murder and defendant is awarded a new trial for a determination of whether or not defendant is guilty of second degree murder, voluntary manslaughter or not guilty.

303 N.C. at 297-98 , 278 S.E. 2d at 223-24 .

I find the case at bar indistinguishable from Corn . Here, too, all the evidence tends to show defendant’s intent to kill was the product of the sudden struggle in which he and deceased were engaged and was formed suddenly while defendant was “in a state of passion, without aforethought or calm consideration.” In my view it was error to submit first degree murder to the jury, and I vote to remand, as we did in Corn , for a new trial on the question of defendant’s guilt of second degree murder or manslaughter.

I concur fully in all other aspects of the majority’s opinion.