State v. Montanino

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-409

Filed 4 June 2024

Durham County, No. 18 CRS 54754

STATE OF NORTH CAROLINA

v.

PHILIP ANTHONY MONTANINO, Defendant.

Appeal by defendant from judgment entered 6 December 2021 by Judge

Josephine Kerr-Davis in Durham County Superior Court. Heard in the Court of

Appeals 20 February 2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Steven

Armstrong, for the State.

Kimberly P. Hoppin for defendant-appellant.

DILLON, Chief Judge.

Defendant Philip Anthony Montanino appeals judgment entered upon a jury’s

verdict finding him guilty of first-degree murder based on the felony-murder rule for

the death of Elizabeth Watson which occurred when Defendant stole her car. (The

jury found him “not guilty” of first-degree murder based on premeditation and

deliberation but returned no verdict on the lesser-included offenses of second-degree

murder or voluntary manslaughter.)

Because there was insufficient evidence from which the jury could find that

STATE V. MONTANINO

Opinion of the Court

Defendant’s underlying crime was a felony—specifically, the State failed to present

sufficient evidence to prove the value of the victim’s car to elevate the larceny to a

felony—we must reverse Defendant’s conviction and remand to the trial court for

entry of judgment for the lesser-included offense of involuntary manslaughter.

However, on remand the State may retry Defendant for second-degree murder and

voluntary manslaughter; but should the State so elect to retry Defendant on those

charges and obtain a conviction on either charge, the trial court shall arrest judgment

on the involuntary manslaughter conviction.

I. Background

On 2 July 2018, the victim Elizabeth Watson was found dead in her Durham

apartment by police who were conducting a welfare check after the victim’s daughter

was unable to reach her the previous two days. Other evidence at trial tended to

show as follows:

When the police conducted the welfare check, they found the victim’s

apartment in a state of “disarray,” appearing as if there had been a party. The police

found the victim dead in her bedroom, wedged between her bed and a wall. She had

likely been dead for at least a day. She died from multiple blunt force trauma,

suffering injuries to her brain, face, neck, torso, and extremities. She had been struck

over 40 times on her back alone. Her blood alcohol level was .10. Police also found

empty beer cans in the apartment with fingerprints, later identified as belonging to

Defendant. Defendant and the victim had a history of drinking alcohol together at

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Opinion of the Court

her apartment.

Police also discovered that the victim’s car was missing from the apartment

parking lot. Later that day, police found Defendant in Chapel Hill in the vicinity of

the victim’s vehicle. When apprehended by police, Defendant asked, “Is she dead?”

Police found the victim’s driver’s license and debit card in Defendant’s wallet. Police

also learned that Defendant sold the victim’s smartphone at an ecoATM kiosk in

Burlington the previous afternoon.

Defendant moved for dismissal based on insufficient evidence at the close of

the State’s evidence and again at the close of his evidence. Both motions were denied.

The jury found Defendant guilty of first-degree murder, based on the felony

murder rule, determining that the victim died in the course of Defendant stealing her

car. He was sentenced to life in prison without the possibility of parole. He appeals.

II. Analysis

Defendant presents two arguments on appeal, which we address in turn.

A. Verdict Sheet

Defendant first argues that the trial court erred by failing to include a spot on

the verdict form sheet giving the jury the option to find Defendant “not guilty.”

Defendant concedes that he failed to object at trial to this oversight. Accordingly, we

review for plain error. Defendant bears the burden to show, not only error, “but that

absent the error, the jury probably would have reached a different result.” State v.

Garcell, 363 N.C. 10, 35, 678 S.E2d 618, 634 (2009).

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Opinion of the Court

It is true that the verdict form did not contain a space for the jury to find

Defendant “not guilty.” However, the wording on the verdict sheet accomplishes the

same thing by giving the jury the option to answer “No” on each of the charges. The

verdict sheet (with the jury’s answers in BOLD) reads as follows with respect to the

charge of first-degree murder:

We, the jury, return the unanimous verdict as follows:

1. Guilty of First Degree Murder

ANSWER: YES

IF YOU ANSWER “YES”, IS IT?

A. On the basis of malice, premeditation and

deliberation?

ANSWER: NO

B. Under the first degree felony murder rule?

ANSWER: YES

If you find the Defendant Guilty of First Degree Murder stop here.

[The verdict sheet continued with questions regarding Defendant’s guilt for second-

degree murder and voluntary manslaughter, to which the jury could respond either

“Yes” or “No.” However, since the jury answered “Yes” on the charge of first-degree

felony murder, the jury did not answer any questions on the lesser charges.]

The wording in the verdict sheet might not be ideal and does contain language

that is ambiguous. However, the ambiguity favors Defendant. Specifically, based on

the phrasing, a “No” answer could be construed simply to mean that the jury did not

unanimously agree on Defendant’s guilt on a particular crime. That is, the jury could

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Opinion of the Court

have thought a “No” answer on first-degree murder based on premeditation and

deliberation was appropriate where they were hung on that charge. We, though,

construe this ambiguity against the State and interpret the “No” answer on the

charge of first-degree murder based on premeditation and deliberation as a “Not

Guilty” verdict.

In any event, we conclude that the omission of a separate question whereby

the jury could have indicated a verdict of “not guilty” of all charges did not rise to the

level of plain error. We note our dissenting colleague’s reliance on State v. McHone,

where a jury was instructed on two theories of first-degree murder. 174 N.C. App.

289, 620 S.E.2d 903 (2005). In that case, our Court held it was plain error for the

trial court to fail to include an instruction to the jury regarding its duty to find the

defendant “not guilty” in its final mandate coupled with the failure to include a “not

guilty” option on the verdict sheet on the murder charges. Id. at 299, 620 S.E.2d at

910. However, we conclude that this case is distinguishable.

In the present case, before going through the elements of each crime, the trial

court instructed the jury that it could find Defendant “not guilty,” specifically stating

that “[u]nder the law and evidence in this case it is your duty to return one of the

following verdicts: Guilty of first degree murder, or, guilty of second murder, or,

guilty of voluntary manslaughter, or not guilty.” Our dissenting colleague quotes

large portions of the instructions provided by the trial court for the theories of first-

degree murder, where the trial court does not discuss the option of returning a “not

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Opinion of the Court

guilty” verdict. However, following the portion of the final mandate that is quoted in

the dissent, the trial court continues:

If you do not find the Defendant guilty of first degree

murder [under either theory of premeditation and

deliberation or under the felony murder rule], you must

then determine whether or not the Defendant is guilty of

second degree murder.

Then after reviewing the elements of second-degree murder, the trial court instructed

the jury:

. . . it would be your duty to return a verdict of guilty of

second degree murder. If you do not so find or have a

reasonable doubt as to one or more of these things, it would

be your duty to return a verdict of not guilty, but you would

also be – but you should also consider voluntary

manslaughter.

(Emphasis added.) Then after reviewing the elements of voluntary manslaughter,

the trial court again reminded the jury in its final mandate of the option to find

Defendant “not guilty”:

. . . it would be your duty to find the Defendant guilty of

voluntary manslaughter. . . . However, if you do not so find

or have a reasonable doubt as to one or more of these

things, you will return a verdict of not guilty of voluntary

manslaughter.

(Emphasis added.) We conclude that this case is closer to State v. Gosnell, 231 N.C.

App. 106, 750 S.E.2d 593 (2013). In that case, our Court held there was no plain error

where the trial court’s final mandate did not expressly state that the jury could find

the defendant “not guilty” while discussing first-degree murder, BUT DID discuss the

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Opinion of the Court

“not guilty” option when instructing on second-degree murder, stating:

From our review of the entirety of the jury instructions on

murder, it appears that, as to the theory of premeditation

and deliberation, the trial court failed to comport precisely

with the requirement to instruct that the jury would return

a verdict of “not guilty” if it rejected the conclusion that

Defendant committed first-degree murder on the basis of

premeditation and deliberation, per McHone. However, it

further appears that the trial court, in its instructions,

comported with the requirement regarding both lying in

wait and second-degree murder.

Id. at 109, 750 S.E.2d at 595. Admittedly, our case is not on “all fours” with Gosnell,

as the verdict sheet in Gosnell did include a space for a “not guilty” verdict. See id.

at 110, 750 S.E.2d at 596.

However, what further distinguishes our case from McHone concerns the

verdict sheets. While neither the verdict sheet in our case nor the one in McHone

contained a space where the jury could expressly indicate a “not guilty” verdict, unlike

our case, the verdict sheet in McHone did contain a “not guilty” option for separate

robbery charges – which were not lesser-included offenses of the homicide charges –

and that Court stated “the content and form of the verdict sheet on the taking

offenses, which did afford a space for a not guilty verdict [ ] likely reinforced the

suggestion that defendant must have been guilty of first degree murder on some

basis.” McHone, 174 N.C. App. at 298, 620 S.E.2d at 909. The verdict sheet in the

present case, though, did not have this issue, as the jury was only instructed on the

homicide charges.

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Opinion of the Court

We further note that the trial court gave the jury a “jury pack” prior to their

deliberation, which referenced the jury’s option to return a verdict of “not guilty.”

Finally, the jury did, in essence, find Defendant “not guilty” of first-degree murder

based on premeditation and deliberation by answering “No” on the verdict sheet with

respect to that charge.

In sum, we conclude that the trial court did not commit plain error in its

instruction to the jury.

B. Insufficiency of the Evidence

Defendant argues that his murder conviction, based on felony murder, must be

set aside based on insufficiency of evidence. The underlying felony upon which the

jury based its verdict was his larceny of the victim’s car. Defendant correctly argues

that, in order to prove felony larceny, the State had the burden of proving that the

victim’s car was worth over $1,000.00 He contends, though, that the State failed to

meet its burden of proving the car’s value. Based on binding Supreme Court

precedent, we must agree.

“Whether the State presented substantial evidence of each essential element

of the offense is a question of law; therefore, we review the denial of a motion to

dismiss de novo.” State v. Crockett, 368 N.C. 717, 720, 782 S.E.2d 878, 881 (2016). In

our review, we view the evidence in the light most favorable to the State. State v.

Elder, 383 N.C. 578, 586, 881 S.E.2d 227, 234 (2022).

Felony murder—a type of first-degree murder—is the killing of a person which

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Opinion of the Court

is “committed in the perpetration or attempted perpetration of any arson, rape or a

sex offense, robbery, kidnapping, burglary, or other felony committed or attempted

with the use of a deadly weapon[.]” N.C. Gen. Stat. § 14-17(a) (2023).

Here, Defendant was tried for felony murder, with larceny with a deadly

weapon as the underlying felony. One essential element of felonious larceny which

must be proven by the State is that the value of the stolen property exceeded more

than $1,000.00 N.C. Gen. Stat. § 14-72(a) (2023). See also State v. Boomer, 33 N.C.

App. 324, 329, 235 S.E.2d 284, 287 (1977) (“General Statute 14-72 requires the State

to prove the value of the ‘property taken’ . . . to be in excess of” $1,000.00). Though

there was evidence that Defendant stole several items from the victim, the trial court

only instructed the jury regarding the victim’s vehicle, a 2012 Suzuki Grand Vitari.

While the jury is “free to exercise their own reason, common sense and

knowledge acquired by their observation and experiences in everyday life” when

determining the stolen property’s value, State v. Edmondson, 70 N.C. App. 426, 430,

320 S.E.2d 315, 318 (1984), our Supreme Court has instructed that “[t]he jury may

not speculate as to the value.” State v. Holland, 318 N.C. 602, 610, 350 S.E.2d 56, 61

(1986).1 That is, the State must put on some evidence from which the jury can make

1 A separate holding in Holland—specifically, that in considering circumstantial evidence an

inference may not be made from an inference—was overruled by our Supreme Court in State v.

Childress, 321 N.C. 226, 232, 362 S.E.2d 263, 267 (1987). However, the Court in Childress left

undisturbed the holding in Holland regarding the sufficiency of evidence in proving the value of a

stolen vehicle in a criminal prosecution.

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Opinion of the Court

a dollar value determination. See, e.g., State v. Cotten, 2 N.C. App. 305, 311, 163

S.E.2d 100, 104 (1968) (holding that evidence in the form of an opinion regarding the

value of the stolen items is sufficient, even if the person offering the opinion is not an

expert, so long as the witness demonstrates knowledge gained from experience,

information, and observation).

Here, the State did not offer any opinion evidence regarding the vehicle’s value,

evidence of what the victim paid for the vehicle, or any other evidence which included

a dollar amount from which the jury could make a value determination. The State,

however, points to the following evidence concerning the vehicle’s value as being

sufficient: (1) the vehicle’s year, make, and model (a 2012 Suzuki Grand Vitari); (2)

visual evidence of the car’s condition (as seen partially in the background of police

body camera footage); and (3) the operability of the vehicle (based on evidence that

Defendant drove the vehicle from Durham to Burlington and then to Chapel Hill).

Based on our Supreme Court’s holding in Holland, though, we must conclude

that the State’s evidence was insufficient to prove the value of the victim’s vehicle.

Holland also involved a prosecution concerning a stolen vehicle in which the

State had the burden to prove the value of the vehicle exceeded a certain value (then

$400.00) to elevate the charge to a felony. See Holland, 318 N.C. at 610, 350 S.E.2d

at 61. In that case, the State offered no evidence regarding the vehicle’s dollar value

in the form of an opinion or otherwise (e.g., the purchase price of the vehicle or what

the defendant sold the vehicle for). See id. Rather, the State merely presented

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Opinion of the Court

evidence showing (1) the stolen vehicle’s year, make, and model (a 1975 Chrysler

Cordoba); (2) the stolen vehicle was the owner’s favorite vehicle, and the owner took

“especially good care” of the vehicle; (3) a picture of the vehicle; and (4) evidence that

the vehicle was operable (as the vehicle was found in Danville, Virginia, after being

stolen from the victim’s Reidsville home). Id. Our Supreme Court, however, held

that this evidence was “insufficient for presentation of the issue of value to the jury.”

Id.

Like in Holland, the State presented no evidence as to the monetary value of

the victim’s vehicle. Moreover, the evidence here was even less robust than that

presented by the State in Holland. Instead of presenting a picture of the vehicle to

the jury, the State in the present case merely relied on the vehicle’s partial

appearance in the background of police footage to show the car’s condition. And,

unlike in Holland, there was no evidence concerning the victim’s care for the vehicle.

Because there was insufficient evidence to prove the underlying felony upon

which Defendant was convicted of first-degree murder based on the felony murder

rule, we must reverse Defendant’s first-degree murder conviction. And based on

principles of double jeopardy, Defendant cannot be retried for first-degree murder

based on felony murder. See State v. Callahan, 83 N.C. App. 323, 325, 350 S.E.2d

128, 129–30 (1986) (“Appellate reversal of a conviction on the basis of insufficiency

[of evidence] has the same effect as a judgment of acquittal and the Double Jeopardy

Clause precludes retrial.”). See also McDaniel v. Brown, 558 U.S. 120, 131 (2010)

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Opinion of the Court

(“Because reversal for insufficiency of the evidence is equivalent to a judgment of

acquittal, such a reversal bars a retrial.”).

III. Instructions on Remand

Regarding the protocol to follow in this situation, Section 15A-1447(c) of our

General Statutes states that

[i]f the appellate court finds that the evidence with regard

to a charge is insufficient as a matter of law, the judgment

must be reversed and the charge must be dismissed unless

there is evidence to support a lesser included offense. In

that case the court may remand for trial on the lesser

offense.

N.C. Gen. Stat. § 15A-1447(c) (2023) (emphasis added). However, our Supreme Court

has a “long-standing, consistent precedent of acting ex mero motu to recognize a

verdict of guilty of a crime based upon insufficient evidence as a verdict of guilty of a

lesser-included offense.” State v. Stokes, 367 N.C. 474, 480, 756 S.E.2d 32, 36–37

(2014).

In this case, the jury necessarily found that the victim died while Defendant

was committing an unlawful act: misdemeanor larceny. See N.C. Gen. Stat. § 14-

72(a) (2023) (showing that the elements of misdemeanor larceny are identical to the

elements of felonious larceny, save for the value requirement). And involuntary

manslaughter can be proven by showing that the defendant killed another “by an

unlawful act not amounting to a felony[.]” State v. Brichikov, 383 N.C. 543, 549, 881

S.E.2d 103, 109 (2022). See also State v. Lane, 115 N.C. App. 25, 30, 444 S.E.2d 233,

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Opinion of the Court

237 (1994) (holding that North Carolina has not abandoned “the common law doctrine

of misdemeanor manslaughter”).

Accordingly, based on Stokes, we remand with instructions that judgment be

entered against Defendant convicting him of involuntary manslaughter (under the

theory of misdemeanor manslaughter).

We recognize, though, that this case has an extra wrinkle, in that the jury was

instructed on two different theories of murder, each which has different lesser-

included offenses, and that the jury did not acquit Defendant of the lesser-included

offenses associated with premeditated murder. We also recognize that those lesser-

included offenses carry greater punishments than involuntary manslaughter, the

lesser-included offense of felony murder.

The district attorney, if (s)he in his/her prosecutorial discretion so chooses, may

retry Defendant under the original bill of indictment for second-degree murder and

voluntary manslaughter, as doing so would not violate the principles of double

jeopardy, provided that if (s)he so elects and is able to obtain a conviction, the

judgment convicting Defendant of involuntary manslaughter must be arrested.

The verdict sheet indicates that the jury specifically rejected the State’s

alternate theory for first-degree murder (i.e., that Defendant acted with

premeditation and deliberation in causing the victim’s death). However, the verdict

sheet also included an option by which the jury could have convicted Defendant of

second-degree murder and an option by which the jury could have convicted

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Opinion of the Court

Defendant of voluntary manslaughter. But since the jury found Defendant guilty of

first-degree murder based on the felony-murder rule, the jury never answered

whether it believed the State had proven the elements of second-degree murder (i.e.,

that Defendant killed the victim with malice, though without premeditation and

deliberation) or voluntary manslaughter (i.e., that Defendant killed the victim

without malice).

A retrial for second-degree murder and/or voluntary manslaughter is one of

“continuing jeopardy,” as the original indictment in this case embraced second-degree

murder and involuntary manslaughter as lesser-included offenses of first-degree

premeditated murder and also embraced misdemeanor manslaughter as a lesser-

included offense of first-degree felony murder. See, e.g., State v. Courtney, 372 N.C.

458, 831 S.E.2d 260 (2019) (discussing the concept of “continuing jeopardy”). And the

fact that the jury’s verdict supports a conviction of involuntary manslaughter as a

lesser-included offense of first-degree felony murder does not prohibit the State from

retrying Defendant for crimes that are lesser included offenses of first-degree murder

based on premeditation, as the jury was instructed on those offenses but did not

return any verdict. Felony murder and premeditated murder involve different

elements. There is nothing in the jury’s verdict which mandates a conclusion that

they found Defendant did not act with malice in causing the victim’s death or that he

committed voluntary manslaughter, but only that he did not act with premeditation

and deliberation.

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Opinion of the Court

Any double jeopardy concerns here are like those addressed by the United

States Supreme Court in Ohio v. Johnson, 467 U.S. 493 (1984). In that case, the

Court held that the conviction of a lesser-included offense based on a plea bargain

does not bar a trial of the greater-included offenses alleged in the same indictment.

Id. Rather, the double jeopardy concern would arise in the present case only if

Defendant were to be convicted on retrial for second-degree murder or voluntary

manslaughter. However, this concern would be easily remedied by the trial court

arresting judgment on the involuntary manslaughter conviction. See also State v.

Henning, 681 N.W.2d 871 (Wis. 2004), and cases cited therein.

We note that a holding that the State not be allowed to retry Defendant under

the original indictment where the jury convicts only on one theory of murder could

lead to absurd results. For instance, under such a holding, if we had held in this case

that there was NO evidence that Defendant stole the vehicle, Defendant would have

to be released. In such case, the State would have no opportunity to retry for second

degree murder or voluntary manslaughter.

III. Conclusion

Based on binding Supreme Court precedent, we must reverse Defendant’s first-

degree murder conviction based on the felony murder rule. On remand, the trial court

may enter judgment for involuntary manslaughter, a lesser-included offense.

Also, on remand the State may, in its discretion, retry Defendant for second-

degree murder and voluntary manslaughter under the original indictment, as the

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Opinion of the Court

jury did not return a verdict as to those charges. The State, however, may not retry

Defendant for first-degree murder. Prosecution for first-degree murder based on the

felony-murder rule is foreclosed by our holding that the State’s evidence was

insufficient to prove that crime. The State does not get a second bite at the apple to

offer the evidence it failed to offer in the first trial. And prosecution for first-degree

murder based on premeditation and deliberation is foreclosed on remand based on

the jury’s verdict acquitting Defendant of that charge in the first trial.

If, on remand, the State elects to retry Defendant and Defendant is convicted

of either second-degree murder or voluntary manslaughter and judgment is entered

accordingly, Defendant’s conviction for involuntary manslaughter shall be arrested.

REVERSED AND REMANDED.

Judge STADING concurs.

Judge STROUD concurs in part and dissents in part.

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No. COA23-409 – State v. Montanino

STROUD, Judge, concurring in part and dissenting in part.

While I concur with the majority’s opinion on the insufficiency of evidence of

the value of the car, I write separately to dissent on the issue regarding the verdict

sheet and jury instructions. As the trial court’s final mandate to the jury did not

include a clear instruction that the jury may find Defendant “not guilty” of murder

but did include this instruction for the lesser offenses the jury did not reach, and the

verdict sheet supplied to the jury only included spaces for verdicts entitled “Answer,”

I would grant Defendant a new trial.

IV. Verdict Sheet and Jury Instructions

Defendant argues “the trial court committed plain and reversible error by

omitting a ‘not guilty’ option in the final mandate to the jury and on the verdict sheet.”

As the majority opinion correctly notes, since Defendant did not object to the jury

instructions or proposed verdict sheet at trial, we review this argument for plain

error. See State v. McHone, 174 N.C. App. 289, 294, 620 S.E.2d 903, 907 (2005)

(“Because defendant did not object at trial to the omission of the not guilty option

from the trial court’s final mandate to the jury, we review the trial court’s actions for

plain error.” (citation omitted)).

“It is well established that the trial court’s charge to the jury must be construed

contextually and isolated portions of it will not be held prejudicial error when the

charge as a whole is correct.” Id. (citation and quotation marks omitted). Here,

Defendant challenges both the verdict form and the jury instructions, particularly

STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

the absence of the instruction that the jury should find Defendant “not guilty” if the

State fails to meet its burden of proof and the lack of designations on the verdict sheet

to answer “Guilty” or “Not Guilty” as to each crime submitted to the jury. There is

no specific form required for a verdict sheet, but the preferred practice is to require

the jury to answer “guilty” or “not guilty” for each crime. See State v. Hicks, 86 N.C.

App. 36, 43, 356 S.E.2d 595, 599 (1987) (“[A]lthough the verdict sheet utilized by the

trial court is not preferred and the use of ‘not guilty’ on the verdict sheet is preferred

we conclude that there is no reasonable possibility that the outcome would have

differed if the jury verdict sheet would have been worded differently.” (citation

omitted)). Further, “[o]ur Supreme Court has held that the failure of the trial court

to provide the option of acquittal or not guilty in its charge to the jury can constitute

reversible error.” McHone, 174 N.C. App. at 295, 620 S.E.2d at 907 (citations

omitted). However, even where the verdict sheet fails to include an option of “Not

Guilty,” a guilty verdict can be deemed no error if “[t]he trial court’s final mandate to

the jury specifically instructs the jury with respect to the permissible verdicts that it

could return.” Hicks, 86 N.C. App. at 43, 356 S.E.2d at 599.

Here, the majority decided the trial court did not commit plain error since the

jury instructions explained to the jury it could return a not guilty verdict if it finds

the State did not meet its burden. The trial court, in its general instructions on direct

versus circumstantial evidence, did instruct “[a]fter weighing all of the evidence, if

you are not convinced of the guilt of the Defendant beyond a reasonable doubt, you

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STROUD, J., concurring in part and dissenting in part

must find the Defendant not guilty.” However, after explaining the elements required

for first-degree murder under the theories of premeditation and deliberation or the

felony murder rule, the trial court did not include any instruction regarding finding

Defendant “not guilty.” The trial court instructed:

If you find from the evidence beyond a reasonable doubt

that on or about the alleged date that the Defendant, acting

with malice, killed the victim with a deadly weapon

thereby proximately causing the victim’s death, that the

Defendant intended to kill the victim and that the

Defendant acted after premeditation and with

deliberation, it would be your duty to return a verdict of

guilty of first degree murder on the basis of malice,

premeditation and deliberation.

If you do not so find or you have a reasonable doubt as to

one or more of these things, you would return a verdict of -

- you would not return a verdict of guilty of first degree

murder on the basis of malice, premeditation and

deliberation. Whether or not you find the Defendant guilty

of first degree murder on the basis of malice, premeditation

and deliberation, you would then also consider whether or

not the Defendant is guilty of first degree murder under

the basis of the first degree Felony Murder Rule.

....

If you find from the evidence beyond a reasonable doubt

that on or about the alleged date the Defendant took and

carried away another person’s property without the other

person’s consent knowing that the Defendant was not

entitled to take it and intending at the time to deprive the

alleged victim of its use permanently and that the property

was worth more than $1,000 and that while committing a

larceny the Defendant killed - - killed the victim, and that

the Defendant’s act was the proximate cause of the victim’s

death, it would be your duty to return a verdict of guilty of

first degree murder under the Felony Murder Rule. If you

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STROUD, J., concurring in part and dissenting in part

do not so find or if you have a reasonable doubt as to one or

more of these things, you will not return a verdict of guilty

of first degree murder under the Felony Murder Rule.

(Emphasis added.)

Thus, as to each theory of first-degree murder, the trial court instructed the

jury should either “return a verdict of guilty” or “not return a verdict of guilty.” In

contrast, for the lesser offenses of second-degree murder and voluntary

manslaughter, the trial court specifically instructed the jury that “if you do not so

find or have a reasonable doubt as to one or more of these things, it would be your

duty to return a verdict of not guilty[.]” I also note that the wording of the instruction

to “not return a verdict of guilty” as to murder was exactly the same in McHone, where

this Court reversed for plain error based on the combination of the jury instructions

and a verdict sheet with no spaces for an answer of “not guilty.” McHone, 174 N.C.

App. at 292, 300, 620 S.E.2d at 906, 911.

The wording of the jury instructions on first-degree murder – without a

directive to find Defendant “not guilty” if the jury did not find the elements proven

beyond a reasonable doubt – but with the instruction to “not return a verdict of guilty”

may be harmless had the verdict sheet clearly directed the jury to find Defendant

“Guilty” or “Not Guilty” of each crime, but it did not. The verdict form, with the jury’s

handwritten answers in italics, read as follows:

We, the jury, return the unanimous verdict as follows:

1. Guilty of First Degree Murder

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STROUD, J., concurring in part and dissenting in part

ANSWER: Yes

IF YOU ANSWER "YES", IS IT:

A. On the basis of malice, premeditation and

deliberation?

ANSWER: No

B. Under the first degree felony murder rule?

ANSWER: Yes

If you find the Defendant Guilty of First Degree Murder

stop here.

2. Guilty of Second Degree Murder

ANSWER: _________________________

If you find defendant Guilty of Second Degree Murder you

must unanimously find one or more of A, B, or C below.

A. Is it malice meaning hatred, ill will, or spite?

ANSWER: ___________________________

B. Is it malice defined as condition of mind which

prompts a person to take the life of another

intentionally or to intentionally inflict serious bodily

harm which proximately results in another's death,

without just cause, excuse or justification?

ANSWER: _________________________

C. Is it malice that arises when an act which is

inherently dangerous to human life is intentionally

done so recklessly and wantonly as to manifest a

mind utterly without regard for human life and

social duty and deliberately bent on mischief?

ANSWER: _________________________

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

If you find the Defendant Guilty of Second Degree Murder

stop here.

3. Guilty of Voluntary Manslaughter

ANSWER: __________________________

Nowhere on the verdict sheet was there a blank to indicate if the jury found

Defendant “Not Guilty;” the verdict sheet only had a blank under each charge titled

“Answer:[.]”

In Hicks, the trial court used a similar verdict sheet without a blank for either

“Guilty” or “Not Guilty” but only a blank for “Answer:[.]” Hicks, 86 N.C. App. at 43,

356 S.E.2d at 599. However, in Hicks, the trial court instructed the jury clearly on

how to fill out the verdict sheet, stating “[w]hen all twelve members of the jury agree

on a verdict, your foreperson should record your verdict on the verdict sheet. There

are two counts and the foreperson should write in ‘guilty’ or ‘not guilty’ where the word

‘answer’ is, and there is a line drawn there.” Id. (emphasis in original).

Thus, this Court held there was no error since

[t]he trial court’s final mandate to the jury specifically

instructs the jury with respect to the permissible verdicts

that it could return. Moreover, the trial court specifically

instructed the jury on how to enter the verdict on the sheet

supplied to them by the trial court. When the jury was

polled each juror answered that the verdict returned by the

foreperson was his or her verdict and that each still

assented thereto.

Id. (emphasis added).

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

Here, while the jury was polled after the verdict was issued, the trial court did

not instruct the jury on how to properly fill out the verdict form, only stating, “All 12

of you must agree on your verdict. You cannot reach a verdict by majority vote. When

you have agreed upon a unanimous verdict as to each charge or as to the charges, your

foreperson should indicate so on the verdict form.” (Emphasis added.) The trial

court’s instructions did not give the jury any direction it could find Defendant “not

guilty” but just to find him guilty or to “not return a verdict of guilty.”

This case is more similar to McHone than Hicks. In McHone this Court held

the trial court committed plain error in the jury instructions, reversed the murder

conviction, and remanded for new trial. See McHone, 174 N.C. App. at 300, 620

S.E.2d at 911. In McHone, the trial court used substantially similar language to this

case in its instructions on first-degree murder and the basis for a guilty verdict based

on malice, premeditation and deliberation or the felony murder rule. See id. at 297,

620 S.E.2d at 909. This Court stated,

We first consider the jury instructions on murder in their

entirety in determining whether the failure to provide a not

guilty mandate constitutes plain error. The trial court

judge correctly instructed the jury that if it did not find the

requisite malice, premeditation and deliberation, it “would

not return a verdict of guilty of first-degree murder on the

basis of malice, premeditation, and deliberation” and must

then consider whether the killing was done consistent with

the requirements of the felony murder rule. Likewise, the

concluding portion of the jury instruction on felony murder

mirrored the one concerning malice, premeditation and

deliberation in that it stated that the jury “would not

return a verdict of guilty of first-degree murder under the

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

felony murder rule” if the State failed in one or more of the

elements of felony murder. The instruction, then, in the

absence of a final not guilty mandate, essentially pitted one

theory of first degree murder against the other, and

impermissibly suggested that the jury should find that the

killing was perpetrated by defendant on the basis of at

least one of the theories. Telling the jury “not to return a

verdict of guilty” as to each theory of first degree murder

does not comport with the necessity of instructing the jury

that it must or would return a verdict of not guilty should

they completely reject the conclusion that defendant

committed first degree murder.

Secondly, we consider the content and form of the first

degree murder verdict sheet in determining whether the

failure to provide a not guilty mandate constitutes plain

error. Here, the trial court initially informed the jury that

it was their “duty to return one of the following verdicts:

guilty of first-degree murder or not guilty.” However, the

verdict sheet itself did not provide a space or option of “not

guilty.” And while the content and form of the verdict sheet

did not compel the jury to return a verdict of guilty insofar

as it stated “if” it found defendant guilty of first degree

murder, we repeat our observation that it failed to afford

exactly that which the court initially informed the jury it

would be authorized to return—a not guilty verdict.

Id. at 297-98, 620 S.E.2d at 909 (emphasis in original) (brackets omitted).

In McHone, the verdict form did include blanks for “not guilty” for the lesser

offenses, although not for murder. Here, the verdict form did not include a “not

guilty” blank for any charge, but the jury instructions for the lesser offenses did

include the instruction regarding finding the defendant “not guilty” as to those lesser

offenses only. The jury instructions here thus have the same effect as the erroneous

instructions in McHone:

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

Rather than help correct the failure to provide a similar not

guilty mandate with respect to the first degree murder

charge, the presence of a not guilty final mandate as to the

taking offenses likely reinforced the suggestion that the

jury should return a verdict of first degree murder based

upon premeditation and deliberation and/or felony murder.

Likewise, the content and form of the verdict sheet on the

taking offenses, which did afford a space for a not guilty

verdict, also likely reinforced the suggestion that

defendant must have been guilty of first degree murder on

some basis[.]

Id. at 298, 620 S.E.2d at 909.

McHone relied on several North Carolina Supreme Court cases which direct

the trial court must explicitly instruct the jury it should return a verdict of “not

guilty” if not satisfied by the evidence beyond a reasonable doubt. See State v. Ramey,

273 N.C. 325, 329, 160 S.E.2d 56, 59 (1968) (“In our opinion, and we so decide,

defendant was entitled to an explicit instruction, even in the absence of a specific

request therefor, to the effect the jury should return a verdict of not guilty if the State

failed to satisfy them from the evidence beyond a reasonable doubt that a bullet

wound inflicted upon Mabry by defendant proximately caused his death. The trial

judge inadvertently failed to give such instruction. The necessity for such instruction

is not affected by the fact there was plenary evidence upon which the jury could base

a finding that a bullet wound inflicted upon Mabry by defendant proximately caused

his death.” (citation omitted)); see also State v. Overman, 257 N.C. 464, 468, 125

S.E.2d 920, 924 (1962) (“Furthermore, when the trial judge undertook to apply the

law to the evidence with reference to the first count, he told the jury that if they were

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

satisfied beyond a reasonable doubt that the stated hypotheses were the facts it would

be their duty to return a verdict of guilty as charged. However, he failed to give the

converse or alternative view and to tell the jury that if they were not satisfied beyond

a reasonable doubt that those were the facts, they would acquit the defendant. This

likewise was error. In his mandate with reference to the second count, he did give the

alternative instruction.” (citation omitted)). The Supreme Court cases also make it

clear this error requires a new trial even if the defendant did not object to the

instructions, despite “plenary evidence” the jury could base a verdict of guilt upon.

See id.

Finally, the majority relies on State v. Gosnell to assert the jury instructions

are sufficient since the trial court gave a proper instruction in the lesser-included

charges of second-degree murder and voluntary manslaughter, despite not doing so

in the instructions for first-degree murder. 231 N.C. App 106, 750 S.E.2d 593 (2013).

However, the majority recognizes Gosnell is distinguishable from this case as the

verdict sheet in Gosnell included an option for “not guilty” but the verdict sheet here

did not. Id. at 109, 750 S.E.2d at 595. The court in Gosnell also considered how the

verdict sheet and instructions differed from McHone, as Gosnell noted the trial court

gave proper instructions for lying in wait and second-degree murder and provided

spaces to indicate “not guilty” on the verdict sheet:

This Court in McHone considered the instructions and

verdict sheet for the other offenses with which the

defendant was charged.

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

Rather than help correct the failure to provide a

similar not guilty mandate with respect to the first degree

murder charge, the presence of a not guilty final mandate

as to the taking offenses likely reinforced the suggestion

that the jury should return a verdict of first degree murder

based upon premeditation and deliberation and/or felony

murder.

Additionally, this Court noted that the verdict sheet for the

other offenses, which did afford a space for a not guilty

verdict, also likely reinforced the suggestion that the

defendant must have been guilty of first degree murder on

some basis.

In the present case, there are no other offenses to analyze

in the course of our plain error review. The verdict sheet

provided a space for a “not guilty” verdict, and the trial

court’s instructions on second-degree murder and the theory

of lying in wait comported with the requirement in McHone.

Id. at 110, 750 S.E.2d at 596 (citations, quotation marks, and brackets omitted).

This case does not “comport with the requirement in McHone.” Id. Here, the

verdict sheet, combined with the jury instructions, makes this case rise to the level of

plain error, since the verdict sheet “failed to afford exactly that which the court

initially informed the jury it would be authorized to return—a not guilty verdict.”

McHone, 174 N.C. App. at 298, 620 S.E.2d at 909. Here, the trial court also gave the

proper instruction for the jury to find Defendant “not guilty” as to the lesser offenses

while not using this language for first degree murder. McHone involved a verdict

sheet which included options for “guilty” or “not guilty” in the lesser-included charges

but not for the greater offenses, so this case is still so similar to McHone to require a

new trial. See id.

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

The majority also notes that the trial court gave the jury a “jury pack” of the

instructions to use during deliberations. This is correct, but the jury pack simply

included the same jury instructions I would find to be in error. Giving the jury

erroneous instructions in written form would be more likely to reinforce the effect of

the erroneous instruction than to ameliorate it.

I would hold the instructions and verdict sheet require a new trial since the

instructions and the jury verdict sheet did not direct the jury to find Defendant “not

guilty” of each theory of murder if not convinced beyond a reasonable doubt of guilt.

These errors, combined with the trial court’s proper instructions to the jury regarding

a verdict of “not guilty” as to second-degree murder and voluntary manslaughter,

create a situation similar to McHone, where “the trial court’s inadvertent omission

tipped the scales of justice in favor of conviction and impermissibly suggested that the

defendant must have been guilty of first degree murder on some basis.” Id. at 299,

620 S.E.2d at 910 (emphasis in original).

V. Instructions on Remand

As noted above, I concur with the majority in its holding that the State

presented insufficient evidence of the value of the Suzuki car, and thus the conviction

of first-degree murder under the felony murder rule based on felony larceny must be

reversed. This is unfortunate, since it is obvious the 2012 Suzuki Vitara was worth

more than $1,000.00. The car was in good condition based on the photographs in

evidence and was operational, based on Defendant’s driving it to Chapel Hill where

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

it was found. In addition, at trial the State argued the jury could find the $1,000.00

value for the items stolen by Defendant including the cell phone, flat screen

television, and the Suzuki. But the State presented no evidence whatsoever of the

values of these items, and the jury instructions directed the jury to consider only the

value of the Suzuki for purposes of felony larceny.

Although I concur on the holding as to felony murder based on felony larceny,

I dissent as to the majority opinion’s “instructions on remand.” Although the majority

mentions the discretion of the prosecutor, the language of the opinion seeks to control

that discretion. Essentially, the majority issues a mandate that infringes upon the

prosecutorial discretion granted to the District Attorney by the North Carolina

Constitution. See N.C. Const. art. IV, § 18 (“The District Attorney shall advise the

officers of justice in his district, be responsible for the prosecution on behalf of the

State of all criminal actions in the Superior Courts of his district, perform such duties

related to appeals therefrom as the Attorney General may require, and perform such

other duties as the General Assembly may prescribe.”). As to the felony murder

conviction, the proper action for the majority would be governed by North Carolina

General Statute Section 15A-1447(c):

If the appellate court finds that the evidence with regard

to a charge is insufficient as a matter of law, the judgment

must be reversed and the charge must be dismissed unless

there is evidence to support a lesser included offense. In

that case the court may remand for trial on the lesser

offense.

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

N.C. Gen. Stat. § 15A-1447(c) (2023) (emphasis added).

But because I would also hold the trial court erred in the jury verdict form and

instructions as to how the jury should address the issues on the verdict form, I would

simply grant a new trial on the charges of second-degree murder and voluntary

manslaughter, as directed by North Carolina General Statute Section 15A-1447(a):

“If the appellate court finds that there has been reversible error which denied the

defendant a fair trial conducted in accordance with law, it must grant the defendant

a new trial.” N.C. Gen. Stat. § 15A-1447(a) (2023).

Although the jury found Defendant not guilty of first-degree murder based on

premeditation and deliberation, it did not address second-degree murder or voluntary

manslaughter. Based on the jury instructions and verdict sheet, Defendant was not

found guilty or not guilty of these charges, but the State presented substantial

evidence which would allow a properly instructed jury to find Defendant guilty of

these charges. Therefore, a new trial on these charges is appropriate. See Burks v.

United States, 437 U.S. 1, 15-16, 57 L. Ed. 2d 1, 12 (1978) (“In short, reversal for trial

error, as distinguished from evidentiary insufficiency, does not constitute a decision

to the effect that the government has failed to prove its case. As such, it implies

nothing with respect to the guilt or innocence of the defendant. Rather, it is a

determination that a defendant has been convicted through a judicial process which

is defective in some fundamental respect, e. g., incorrect receipt or rejection of

evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

accused has a strong interest in obtaining a fair readjudication of his guilt free from

error, just as society maintains a valid concern for insuring that the guilty are

punished. The same cannot be said when a defendant’s conviction has been

overturned due to a failure of proof at trial, in which case the prosecution cannot

complain of prejudice, for it has been given one fair opportunity to offer whatever

proof it could assemble.” (citation omitted)).

The majority opinion has crafted directions on remand not just for the trial

court but also for the District Attorney. I can find no case in which this Court or the

North Carolina Supreme Court has found error in a conviction and has remanded

with specific directives to the District Attorney about how to proceed on remand and

including alternative instructions to the trial court and District Attorney. The

majority recognizes that its holding on the sufficiency of the evidence as to first-

degree murder under the felony murder rule, combined with its holding of no error

as to the issues regarding the jury verdict form and instruction, creates a difficult

dilemma for the State in a case where a woman was brutally killed and the evidence

clearly indicates Defendant killed her, even if the specific type of homicide is less

clear. This is a hard case, but we must “bear in mind Lord Campbell’s caution: ‘Hard

cases must not make bad law.’” Congleton v. City of Asheboro, 8 N.C. App. 571, 574,

174 S.E.2d 870, 872 (1970). I believe issuing directives to the District Attorney is bad

law. If the majority has determined it should “remand with instructions that

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STATE V. MONTANINO

STROUD, J., concurring in part and dissenting in part

judgment be entered against Defendant convicting him of involuntary

manslaughter,” it should so order.

As best I can tell, this sort of directive to the District Attorney is novel. This

Court has the authority to reverse and to issue a mandate to the trial court as to how

to proceed on remand, and all parties to a case are limited by the law of the case as

set out in any appellate opinion before remand. As an appellate court, we have very

limited information about this case and no information of any current circumstances

which may affect any new trial or any other proceedings on remand. For example,

witnesses from the trial may become unavailable, or new witnesses may be

discovered. New evidence may be discovered and presented. These changes may

benefit either the State or Defendant, but this Court’s duty is to issue a clear mandate

to the trial court in accord with its holdings on appeal as directed by North Carolina

General Statute Section 15A-1447. See N.C. Gen. Stat. § 15A-1447 (2023). I concur

with the majority to reverse the first-degree felony murder charge based on

insufficiency of evidence, but I would otherwise reverse for error in the jury

instructions and verdict sheet and remand to the trial court for new trial, with the

State free to proceed on remand as the District Attorney deems appropriate in the

exercise of her discretion.

VI. Conclusion

I respectfully concur in part and dissent in part and would grant Defendant a

new trial.

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