N.C.P.I.—Crim. 206.14

NOTE WELL: N.C. Gen. Stat. §§ 15-176.4, 15A-2000(a). When

the defendant is indicted for first degree murder, the court shall,

upon request by either party, instruct the jury as follows:

"In the event that the defendant is convicted of murder in

the first degree, the court will conduct a separate sentencing

proceeding to determine whether the defendant should be

sentenced to death or life imprisonment (without parole).2

If that time comes, you will receive separate sentencing

instructions. However, at this time your only concern is to

determine whether the defendant is guilty of the crime charged

or any lesser included offenses about which you are instructed."3

The defendant has been charged with first degree murder.

Under the law and the evidence in this case, it is your duty to return

one of the following verdicts:

(1) Guilty of first degree murder

(2) Guilty of second degree murder4,5

(3) Not guilty.

You may find the defendant guilty of first degree murder either on the

basis of malice, premeditation and deliberation, or under the first degree

felony murder rule, or both. First degree murder on the basis of malice,

premeditation and deliberation is the intentional and unlawful killing of a

human being with malice and with premeditation and deliberation. First

degree murder under the first degree felony murder rule is the killing of a

human being in the [perpetration of] (or) [attempt to perpetrate] [arson]

[rape] [sexual offense] [robbery] [kidnapping] [burglary] [(name felony) with

a deadly weapon].

For you to find the defendant guilty of first degree murder on the basis

of malice, premeditation and deliberation, the State must prove five things

beyond a reasonable doubt:

First, that the defendant intentionally and with malice killed the victim

with a deadly weapon.

Malice means not only hatred, ill will, or spite, as it is ordinarily

understood—to be sure, that is malice—but it also means that condition of

mind that prompts a person to take the life of another intentionally or to

intentionally inflict a wound with a deadly weapon upon another which

proximately results in his death, without just cause, excuse or justification. If

the State proves beyond a reasonable doubt,6 that the defendant intentionally

killed the victim with a deadly weapon or intentionally inflicted a wound upon

the victim with a deadly weapon that proximately caused the person’s death,

you may infer first, that the killing was unlawful, and second, that it was done

with malice, but you are not compelled to do so.7 You may consider the

inference along with all other facts and circumstances in determining whether

the killing was unlawful and whether it was done with malice.

[A firearm is a deadly weapon.] [A deadly weapon is a weapon which is

likely to cause death or serious injury. In determining whether the instrument

was a deadly weapon, you should consider its nature, the manner in which it

was used, and the size and strength of the defendant as compared to the

victim.]

Second, the State must prove that the defendant's act was a proximate

cause of the victim's death. A proximate cause is a real cause, a cause without

which the victim's death would not have occurred,8 and one that a reasonably

careful and prudent person could foresee would probably produce such

[injury] [damage] or some similar injurious result. (The defendant’s act need

not have been the only cause, nor the last or nearest cause. It is sufficient if

it occurred with some other cause acting at the same time, which, in

combination with, caused the death of the victim.) (A child has been killed if

the child was born alive, but died as a result of injuries inflicted prior to being

born alive.)9

Third, that the defendant intended to kill the victim. Intent is a mental

attitude seldom provable by direct evidence. It must ordinarily be proved by

circumstances from which it may be inferred. An intent to kill may be inferred

from the nature of the assault, the manner in which it was made, the conduct

of the parties and other relevant circumstances.

Fourth, that the defendant acted after premeditation, that is, that the

defendant formed the intent to kill the victim over some period of time,

however short, before the defendant acted.

And Fifth, that the defendant acted with deliberation, which means that

the defendant acted while the defendant was in a cool state of mind. This

does not mean that there had to be a total absence of passion or emotion. If

the intent to kill was formed with a fixed purpose, not under the influence of

some suddenly aroused violent passion, it is immaterial that the defendant

was in a state of passion or excited when the intent was carried into effect.

Neither premeditation nor deliberation is usually susceptible of direct

proof. They may be proved by proof of circumstances from which they may

be inferred, such as the [lack of provocation by the victim] [conduct of the

defendant before, during and after the killing] [threats and declarations of the

defendant] [use of grossly excessive force] [infliction of lethal wounds after

the victim is felled] [brutal or vicious circumstances of the killing] [manner in

which or means by which the killing was done].10

I further charge that for you to find the defendant guilty of first degree

murder under the first degree felony murder rule, the State must prove

[three] [four] things beyond a reasonable doubt:

First, that the defendant [committed] (or) [attempted to commit]

(name felony, e.g., robbery). (Define the felony and enumerate its elements,

using the Pattern Jury Instruction for that felony.)

Second, that while [committing] (or) [attempting to commit] (name

felony), the defendant killed the victim with a deadly weapon.11

[And Third] [Third], that the defendant's act was a proximate cause of

the victim's death. A proximate cause is a real cause, a cause without which

the victim's death would not have occurred.12

NOTE WELL: Where there is evidence that the defendant, though

not committing or attempting to commit arson, rape or a sex

offense, robbery, kidnapping or burglary, was committing or

attempting to commit some other felony with the use of a deadly

weapon, add the following:

[And Fourth, that (name felony, e.g., felonious escape) was committed

or attempted with the use of a deadly weapon. A deadly weapon is a weapon

which is likely to cause death or serious bodily injury. In determining whether

the instrument is a deadly weapon, you should consider its nature, the manner

in which it was used, and the size and strength of the defendant as compared

with the victim.]

NOTE WELL: If there is evidence that defendant committed the

underlying felony in concert with others, but that he may not have

actually committed the killing, instructions should be given, as

appropriate, on acting in concert (N.C.P.I.–Crim. 202.10) and/or

aiding and abetting (N.C.P.I.–Crim. 202.20).

If there was evidence that defendant was not present, and

there was testimony by one or more accomplices, N.C.P.I.–Crim.

206.10A should be considered at this point.

The Enmund v. Florida instruction should not be given

during the guilt determination phase. It has been incorporated in

N.C.P.I.—Crim. 150.10, the death penalty hearing instruction.

FINAL MANDATE ON ALL CHARGES AND DEFENSES

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date, 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 have a reasonable doubt as to one or

more of these things, 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 will also consider

whether the defendant is guilty of first degree murder under the first degree

felony murder rule.

NOTE WELL: Here give the mandate for the felony, up to "it would

be your duty. . ." and then continue as follows:

. . . and that while [committing] (or) [attempting to commit] (name

felony), the defendant killed the victim and that the defendant's act was a

proximate cause of the victim's death, (and that the defendant [committed]

[attempted to commit] (name felony) with the use of a deadly weapon),13 it

would be your duty to return a verdict of guilty of first degree murder under

the felony murder rule.14

If you do not so find, or 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.

If you do not find the defendant guilty of first degree murder on the

basis of malice, premeditation and deliberation, and if you do not find the

defendant guilty of first degree murder under the felony murder rule, you

must determine whether the defendant is guilty of second degree murder.

Second degree murder is the unlawful killing of a human being with

malice but without premeditation and deliberation.15

Second degree murder differs from first degree murder in that the State

need not prove a specific intent to kill, premeditation, deliberation or that the

killing was committed in the perpetration of a felony. In order for you to find

the defendant guilty of second degree murder, the State must prove beyond

a reasonable doubt that the defendant intentionally and with malice wounded

the victim (with a deadly weapon) thereby proximately causing the victim’s

death.

If the State proves beyond a reasonable doubt that the defendant

intentionally inflicted a wound upon the victim (with a deadly weapon) that

proximately caused the victim’s death, you may infer first, that the killing was

unlawful, and second, that it was done with malice,16 but you are not

compelled to do so. You may consider the inferences along with all other facts

and circumstances in determining whether the killing was unlawful and

whether it was done with malice. If the killing was unlawful and was done

with malice, the defendant would be guilty of second degree murder.

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date, the defendant intentionally and with malice (and

without justification or excuse) wounded the victim with a deadly weapon and

that this proximately caused the victim's death, 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.17

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The verdict form sets out first degree murder both on the basis of

malice, premeditation and deliberation and first degree murder under the

felony murder rule (and second degree murder on the basis of malice without

premeditation and deliberation). In the event that you should find the

defendant guilty of first degree murder, please have your foreman indicate

whether you did so on the basis of malice, premeditation and deliberation or

under the felony murder rule or both.

APPENDIX A

NOTE WELL: This verdict form is an example and must be adapted

based on the facts of your case. For example, some cases may

not involve the felony murder rule or second lesser included

offenses.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF

JUSTICE

SUPERIOR COURT DIVISION

No._____________________

STATE OF NORTH CAROLINA

)

Plaintiff )

)

)

vs. )

) V E R D I C T

(Name Defendant) )

)

Defendant )

)

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