N.C.P.I.—Crim. 206.24

NOTE WELL: In the event the State proceeds on both

the theory of premeditation and deliberation and the

theory of domestic violence, then the instruction

should be adapted accordingly.

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).1 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.2”

NOTE WELL: In the event the defendant raises

accident as an affirmative defense, then give N.C.P.I.

—Crim 307.10 and edit the language of the instruction

as necessary.

NOTE WELL: If the defendant has admitted to a prior

conviction, the instruction should be adapted to

reflect the admission of the conviction. A transcript of

plea should be completed before the State rests their

case.

The defendant has been charged with first degree murder involving

domestic violence.

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 involving domestic violence, or

2) guilty of second degree murder3 or

3) guilty of voluntary manslaughter, or

4) guilty of involuntary manslaughter, or

5) not guilty.

First degree murder involving domestic violence is the unlawful

killing of a human being who was [the defendant’s spouse] [the

defendant’s former spouse] [a person with whom the defendant (had)

lived as if married] [a person with whom the defendant (was) (had been)

in a dating relationship] [a person with whom the defendant shares a

child in common].

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

malice, but without premeditation and deliberation.

Voluntary manslaughter is the unlawful killing of a human being

without malice and without premeditation and deliberation.

Involuntary manslaughter is the unintentional killing of a human

being by an unlawful act not amounting to a felony or by an act done in

a criminally negligent way.

For you to find the defendant guilty of first degree murder

involving domestic violence, the state must prove six things beyond a

reasonable doubt:

First, that the defendant with malice killed the alleged victim.

Malice arises when an act which is an inherently dangerous act or

omission is done in such a reckless and wanton manner as to manifest a

mind utterly without regard for human life and social duty and

deliberately bent on mischief.

[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 involved 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 alleged victim.]

Second, that the alleged victim was [defendant’s spouse]

[defendant’s former spouse] [a person with whom the defendant (had)

lived as if married] [a person with whom the defendant (was) (had been)

in a dating relationship. A dating relationship is one in which the parties

are romantically involved over time and on a continuous basis during the

course of the relationship] [a person with whom the defendant shares a

child in common].

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

alleged victim's death. A proximate cause is a real cause, a cause

without which the alleged victim's death would not have occurred,4 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

alleged victim.)

Fourth, that the defendant acted intentionally.5 Intent is a mental

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

by circumstances from which it may be inferred.

Fifth, that the defendant acted with premeditation, that is, that

the defendant formed the intent to kill the alleged victim over some

period of time, however short, before the defendant acted.

And Sixth, 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 circumstances from which they may

be inferred, such as the [lack of provocation by the alleged 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 alleged victim is felled] [brutal or

vicious circumstances of the killing] [manner in which or means by which

the killing was done] 6 [ill will between the parties]. 7 You may find, but

you are not compelled to do so, that a killing is a willful, deliberate, and

premeditated killing if the defendant has previously been convicted of

[an act of domestic violence involving the same alleged victim8] [a

violation of a domestic violence protective order when the same alleged

victim is the subject of the domestic violence protective order9]

[communicating threats involving the same alleged victim10] [stalking

involving the same alleged victim11] [cyberstalking involving the same

alleged victim12] [domestic criminal trespass involving the same alleged

victim13].14

NOTE WELL: If the defendant has admitted to a prior

conviction, the following language should be adapted

to reflect the admission of the conviction. A transcript

of plea should be completed before the State rests

their case.

You may find that a person has been previously convicted of [this]

[these] offense(s), if you find from the evidence beyond a reasonable

doubt that:

1) On (name date) in (name court) the defendant was convicted of

an act of domestic violence15 involving the same alleged victim

as this case.] (Notice: Read Endnote 21)

2) On (name date) in (name court) the defendant was convicted of

a violation of a domestic violence protective16 order when the

same alleged victim as this case was the subject of the

domestic violence protective order.] (Notice: Read Endnote 21)

3) On (name date) in (name court) the defendant was convicted of

communicating threats17 involving the same alleged victim as

this case.] (Notice: Read Endnote 21)

4) On (name date) in (name court) the defendant was convicted of

stalking18 involving the same alleged victim as this case.]

(Notice: Read Endnote 21)

5) On (name date) in (name court) the defendant was convicted of

cyberstalking19 involving the same alleged victim as this case.]

(Notice: Read Endnote 21)

6) On (name date) in (name court) the defendant was convicted of

domestic criminal trespass20 involving the same alleged victim

as this case.].21 (Notice: Read Endnote 21)

You may consider this along with all other facts and circumstances

in determining whether the killing was unlawful and whether it was

committed with premeditation and deliberation.

Second Degree Murder differs from first degree murder in that the

State does not have to prove specific intent to kill, premeditation, or

deliberation. For you to find the defendant guilty of second degree

murder, the State must prove beyond a reasonable doubt that the

defendant unlawfully, intentionally22 and with malice wounded the

alleged victim with a deadly weapon, proximately causing the alleged

victim’s death. For this purpose, malice means not only hatred, ill will, or

spite, as it is ordinarily understood but [it also means that 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.] [malice

also 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.]23

Voluntary Manslaughter is the unlawful killing of a human being

without malice, premeditation, and deliberation. A killing is not

committed with malice if the defendant acts in the heat of passion upon

adequate provocation.

The heat of passion does not mean mere anger. It means that at

the time the defendant acted, the defendant’s state of mind was so

violent as to overcome reason, so much so that the defendant could not

think to the extent necessary to form a deliberate purpose and control

the defendant’s actions. Adequate provocation means anything that has

a natural tendency to produce such passion in a person of average mind

and disposition.24 Also, the defendant's act must have taken place so

soon after the provocation that the passion of a person of average mind

and disposition would not have cooled.

The burden is on the State to prove beyond a reasonable doubt

that the defendant did not act in the heat of passion upon adequate

provocation, but rather that the defendant acted with malice. If the

State fails to meet this burden, the defendant can be guilty of no more

than voluntary manslaughter.

For you to find the defendant guilty of voluntary manslaughter, the

State must prove two things beyond a reasonable doubt:

First, that the defendant killed the alleged victim by an

intentional25 and unlawful act.

And Second, that the defendant’s act was a proximate cause26 of

the alleged victim’s death. A proximate cause is a real cause, a cause

without which the alleged victim’s death would not have occurred.

If you do not find the defendant guilty of murder or voluntary

manslaughter, you must consider whether the defendant is guilty of

involuntary manslaughter. Involuntary manslaughter is [the

unintentional killing of a human being by an unlawful act that is not a

felony] [by an act done in a criminally negligent way.]

For you to find the defendant guilty of involuntary manslaughter,

the State must prove two things beyond a reasonable doubt:

First, that the defendant acted

a) unlawfully. The defendant's act was unlawful if (define crime

alleged to have been violated, e.g., defendant recklessly

discharged a gun, killing the alleged victim).]

b) in a criminally negligent way.27 Criminal negligence is more than

mere carelessness. The defendant's act was criminally

negligent, if, judging by reasonable foresight, it was done with

such gross recklessness or carelessness as to amount to a

heedless indifference to the safety and rights of others.]

And Second, the State must prove that this [unlawful] [criminally

negligent] act proximately caused the alleged victim's death.

FINAL MANDATE ON ALL CHARGES

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

about the alleged date, the defendant, acting with malice, wounded the

alleged victim with a deadly weapon thereby proximately causing the

alleged victim's death, that the defendant acted intentionally to kill the

alleged victim, that the alleged victim was [defendant’s spouse]

[defendant’s former spouse] [a person with whom the defendant (had)

lived as if married] [a person with whom the defendant (was) (had been)

in a dating relationship] [a person with whom the defendant shares a

child in common] 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. 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, but will determine whether the defendant is 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

wounded the alleged victim with a deadly weapon thereby proximately

causing the alleged victim's death, it would be your duty to return a

verdict of guilty of second degree murder. In the event you find the

defendant guilty of second degree murder, your foreperson must indicate

on the verdict sheet upon which theory of malice this is based, and your

decision on this theory must be unanimous. 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 second degree murder, but will determine whether

the defendant is guilty of voluntary manslaughter.

NOTE WELL: If this is a Second Degree Murder case

involving multiple theories of malice, then refer to the

special verdict form attached herein.

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

about the alleged date, the defendant intentionally wounded the alleged

victim with a deadly weapon and thereby proximately caused the alleged

victim's death, it would be your duty to find the defendant guilty of

voluntary manslaughter.

Or, if you find from the evidence beyond a reasonable doubt that

on or about the alleged date, the defendant intentionally wounded the

alleged victim with a deadly weapon and thereby proximately caused the

alleged victim's death, but the State has failed to satisfy you beyond a

reasonable doubt that defendant did not act in the heat of passion upon

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

of voluntary manslaughter.

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 voluntary

manslaughter, but will determine whether the defendant is guilty of

involuntary manslaughter.

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

about the alleged date, the defendant [committed the offense of (name

crime)] [acted in a criminally negligent way] thereby proximately causing

the alleged victim's death, it would be your duty to return a verdict of

guilty of involuntary manslaughter. However, 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.

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:

1. Guilty of First Degree Murder Involving Domestic Violence

ANSWER:

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:

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

3. Guilty of (state second lesser included offense)

ANSWER:

If you find the Defendant Guilty of (state second lesser included

offense) stop here.

4. Not Guilty.

ANSWER:

This, the _____ day of _______________________, 20___.

___________________________________

Foreperson of the Jury (must be signed)