N.C.P.I.—Crim. 206.31

NOTE WELL: Effective December 1, 1997, Voluntary

Manslaughter is a Class D felony. For offenses occurring

before December 1, 1997, Voluntary Manslaughter is a

Class E felony.

Refer to Punishment Chart for Homicides N.C.P.I.—

Crim. 206 Series.

NOTE WELL: If the State contends that the defendant

is not entitled to the use of defensive force because

the defendant was attempting to commit, committing,

or escaping after the commission of a felony, and that

felony offense was immediately causally connected to

the circumstances giving rise to the use of such

defensive force, the jury should be instructed pursuant

to N.C.P.I.—Crim. 308.90. If the felony offense alleged

was immediately causally connected to the

circumstances giving rise to the defensive forced use,

the defendant would be disqualified from the benefit of

using such defensive force.

The defendant has been charged with second 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 second degree murder, or

2) guilty of voluntary manslaughter, or

3) guilty of involuntary manslaughter, or

4) not guilty.

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

malice.

Voluntary manslaughter is the unlawful killing of a human being

without malice.

Involuntary manslaughter is the unintentional killing of a human

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

criminally negligent way.

The defendant would be excused of second degree murder on the

ground of self-defense if:

First, it appeared to the defendant and the defendant believed it to

be necessary to use deadly force against the victim in order to save the

defendant from death or great bodily harm.

And Second, the circumstances as they appeared to the defendant

at the time were sufficient to create such a belief in the mind of a person

of ordinary firmness. It is for you the jury to determine the

reasonableness of the defendant's belief from the circumstances as they

appeared to the defendant at the time. In making this determination, you

should consider the circumstances as you find them to have existed from

the evidence, (including the size, age and strength of the defendant as

compared to the victim), (the fierceness of the assault, if any, upon the

defendant), (whether or not the victim had a weapon in the victim’s

possession), (and the reputation, if any, of the victim for danger and

violence), (describe other circumstances, as appropriate from the

evidence).

The defendant would not be guilty of any murder or manslaughter if

the defendant acted in self-defense, as I have just defined it to be, and

if the defendant was not the aggressor in bringing on the fight and did

not use excessive force under the circumstances. If the defendant

voluntarily and without provocation entered the fight, the defendant

would be considered the aggressor (unless the defendant, thereafter,

attempted to abandon the fight and gave notice to the deceased that the

defendant was doing so).

(One enters a fight voluntarily if one uses toward one’s opponent

abusive language, which, considering all of the circumstances, is

calculated and intended to bring on a fight. If the defendant voluntarily

and without provocation entered the fight, the defendant would be

considered the aggressor unless the defendant thereafter attempted to

abandon the fight and gave notice to the deceased that the defendant

was doing so. In other words, a person who uses defensive force is

justified if the person withdraws, in good faith, from physical contact with

the person who was provoked, and indicates clearly that [he] [she]

desires to withdraw and terminate the use of force, but the person who

was provoked continues or resumes the use of force. A person is also

justified in using defensive force when the force used by the person who

was provoked is so serious that the person using defensive force

reasonably believes that [he] [she] was in imminent danger of death or

serious bodily harm, the person using defensive force had no reasonable

means to retreat, and the use of force likely to cause death or serious

bodily harm was the only way to escape the danger. The defendant is not

entitled to the benefit of self-defense if the defendant was the

aggressor2 with the intent to kill or inflict serious bodily harm upon the

deceased.3)

NOTE WELL: Instructions on aggressors and

provocation should only be used if there is some

evidence presented that defendant provoked the

confrontation. See N.C. Gen. Stat. § 14-51.4(2). If no

such evidence is presented, the preceding

parenthetical and reference to the aggressor

throughout this instruction would not be given. In

addition, the remainder of the instruction, including the

mandate, would need to be edited accordingly to

remove references to the aggressor. It is reversible

error to instruct the jury on the aggressor doctrine if

the record lacks evidence from which the jury could

infer that the defendant was an aggressor at the

time the defendant allegedly acted in self-defense.

State v. Hicks, 2022-NCCOA-263.

A defendant does not have the right to use excessive force. A

defendant uses excessive force if the defendant uses more force than

reasonably appeared to the defendant to be necessary at the time of the

killing. It is for you the jury to determine the reasonableness of the force

used by the defendant under all of the circumstances as they appeared to

the defendant at the time.

Furthermore, the defendant has no duty to retreat in a place where

the defendant has a lawful right to be.4 (The defendant would have a

lawful right to be in the defendant’s [home]5 [own premises] [place of

residence] [workplace]6 [motor vehicle].7)

NOTE WELL: The preceding parenthetical should only

be given where the place involved was the defendant’s

[home] [own premises] [place of residence]

[workplace] [motor vehicle].8

Therefore, in order for you to find the defendant guilty of murder in

the second degree the State must prove beyond a reasonable doubt,

among other things, that the defendant did not act in self-defense, or

failing in this, that the defendant was the aggressor with the intent to

kill or inflict serious bodily harm upon the deceased. If the State fails to

prove either that the defendant did not act in self-defense or was the

aggressor, with intent to kill or inflict serious bodily harm, you may not

convict the defendant of second degree murder, but you may convict the

defendant of voluntary manslaughter if the State proves that the

defendant was simply the aggressor without murderous intent in bringing

on the fight in which the deceased was killed, or that the defendant used

excessive force.

For you to find the defendant guilty of second degree murder, the

State must prove four things beyond a reasonable doubt:

First, that the defendant wounded the victim.

Second, that the defendant acted intentionally9 and with malice.

Intent is a mental attitude seldom provable by direct evidence. It

must ordinarily be proved by circumstances from which it may be inferred.

You arrive at the intent of a person by such just and reasonable

deductions from the circumstances proven as a reasonably prudent person

would ordinarily draw therefrom.

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 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.]10

Third, 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,11 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.)12

And Fourth, that the defendant did not act in self-defense or that

the defendant was the aggressor in bringing on the fight with the intent

to kill or inflict serious bodily harm upon the deceased.

Voluntary manslaughter is the unlawful killing of a human being

without malice. 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 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 may consist of anything which

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

mind and disposition,13 and the defendant's act took 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.

Voluntary manslaughter is also committed if the defendant kills in

self-defense but uses excessive force under the circumstances or was the

aggressor without murderous intent in bringing on the fight in which the

killing took place.

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

the defendant did not act in self-defense. However, if the State proves

beyond a reasonable doubt that the defendant, though otherwise acting

in self-defense, [used excessive force] (or) [was the aggressor, though

the defendant had no murderous intent when the defendant entered the

fight], the defendant would be guilty of voluntary manslaughter.14

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

State must prove three things beyond a reasonable doubt:

First, that the defendant killed the victim by an intentional15 and

unlawful act.

Second, that the defendant’s act was a proximate cause16 of the

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

the victim’s death would not have occurred.

And Third, that the defendant [did not act in self-defense] or

[though acting in self-defense was the aggressor] (or) [though acting in

self-defense used excessive force].

If you do not find the defendant guilty of second degree 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 not amounting

to a felony, or 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] (or) b) [in a

criminally negligent way]. a) [The defendant's act was unlawful if (define

crime, e.g., defendant recklessly discharged a gun, killing the victim).] b)

[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] (or)

[criminally negligent] act proximately caused the victim's death.

(If the victim died by accident or misadventure, that is, without

wrongful purpose or criminal negligence on the part of the defendant, the

defendant would not be guilty. The burden of proving accident is not on

the defendant. The defendant’s assertion of accident is merely a denial

that the defendant has committed any crime. The burden remains on the

State to prove the defendant's guilt beyond a reasonable doubt.)

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 intentionally, and with malice but

not in self-defense, wounded the victim thereby proximately causing 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, you will not return a verdict of guilty of

second degree murder. If you do not find the defendant guilty of second

degree murder, you must consider whether the defendant is guilty of

voluntary manslaughter.

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

about the alleged date, the defendant intentionally wounded the victim,

and thereby proximately caused the victim's death, and that the

defendant was the aggressor in bringing on the fight or used excessive

force, it would be your duty to find the defendant guilty of voluntary

manslaughter even if the state has failed to prove that the defendant did

not act in self-defense.

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

or about the alleged date the defendant intentionally and not in self-defense wounded the victim and thereby proximately caused the 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. You must then 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 [(name crime, e.g., recklessly

discharged a gun, killing the victim)] (or) [acted in a criminally negligent

way] thereby proximately causing the victim's death, it would be your

duty to return a verdict of guilty of involuntary manslaughter. 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.

And finally, if the State has failed to satisfy you beyond a

reasonable doubt that the defendant did not act in self-defense then the

defendant's action would be justified by self-defense; therefore, you

would return a verdict of not guilty.