 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
North Carolina v. Thomas11/19/1992
mplied a judicial opinion on the evidence, (2) the instruction placed the burden on defendant to show a lack of provocation, (3) the instruction allowed the jury to find premeditation and deliberation on a theory not supported by the evidence, and (4) the instruction relieved the State of its constitutional burden of proving every element of the crime beyond a reasonable doubt. Because defendant did not object to the trial court's instructions at trial, we review the defendant's assignment of error only for plain error. Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different verdict. State v. Faison, 330 N.C. 347, 361, 411 S.E.2d 143, 151 (1991). This exact assignment of error has recently been reviewed and rejected by this Court in a case where a virtually identical instruction was given over defendant's objection. State v. Handy, 331 N.C. 515, 419 S.E.2d 545 (1992). In Handy, this Court, after concluding that the evidence of provocation was not contradicted, found that the "lack of provocation" instruction was not erroneous.
The examples listed in the above instruction, which is taken directly from the North Carolina Pattern Jury Instructions, N.C.P.I.--Crim. 206.13 (1989), "are merely examples of circumstances which, if found, the jury could use to infer premeditation and deliberation. It is not required that each of the listed elements be proven beyond a reasonable doubt before the jury may infer premeditation and deliberation." State v. Cummings, 326 N.C. 298, 315, 389 S.E.2d 66, 76 (1990). However, when the trial Judge focuses his instruction upon one or more of such elements as circumstantial proof of premeditation and deliberation, those focused upon must be supported by competent evidence. State v. McDowell, 329 N.C. 363, 388, 407 S.E.2d 200, 214 (1991).
In this case, the challenged portion of the instruction was clearly justified because all of the evidence at trial, including defendant's own statement, revealed no provocation on behalf of the victim. In his statement, defendant admits that he began his assault of the victim by an unsolicited and unconsented-to fondling of her breasts. The victim responded by slapping the defendant. Defendant then proceeded to beat the victim into submission and sexually
abused her to the point that she died. The victim's act of slapping the defendant did not constitute provocation, as the act of repelling a sexual assault does not constitute provocation under North Carolina law. See State v. Williams, 308 N.C. 47, 301 S.E.2d 335 (throwing of salt at an intruder did not constitute provocation on the part of the deceased); State v. Hunter, 305 N.C. 106, 115, 286 S.E.2d 535, 540 (1982) (defendant entitled to use reasonable force to protect himself from possibility of sexual assault).
We conclude that there was competent evidence to support the instruction. Thus, we find no error and, consequently, no plain error.
As his final argument, defendant contends that the felony murder statute in North Carolina offends both the state and federal constitutions because it relieves the State of proving any criminal state of mind. It is well established that proof of the elements of premeditation, deliberation, and specific intent to kill is not necessary to sustain a first-degree murder conviction based on the theory that the homicide was committed during the perpet
Page 1 2 3 4 5 6 7 8 9 10 11 12 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|