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North Carolina v. Thomas11/19/1992
tely four hours. While at Hoggard High School, defendant talked with Wanda Whitley and denied ever having been at Park View Grill. After the truck was unloaded, defendant left Wilmington and began driving to New Jersey. Defendant's actions in disposing of the body and cleaning up his truck indicate his careful thought and planning to hide the killing. Actions taken to hide or cover the commission of a murder
can be considered as evidence of premeditation and deliberation. State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987). This evidence is another circumstance from which premeditation and deliberation can be inferred.
The overwhelming weight of the evidence supports the Conclusion that the trial court did not err in denying defendant's motion to dismiss the murder charge to the extent it was based on the theory of premeditation and deliberation.
In defendant's fourth argument, he contends that the trial court erred in refusing to instruct the jury on second-degree murder. Defendant argues that his statements show that he was provoked, not in the sense of reducing his crime to manslaughter, but sufficient to negate premeditation and deliberation. Defendant contends that although he had a general intent to hurt the victim, he had no specific intent to kill her.
The State contends that there was no evidence showing a lack of premeditation, deliberation, and intent to kill, and therefore, the trial court was not required to submit a second- degree murder verdict. We agree. Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. State v. Phipps, 331 N.C. 427, 457-58, 418 S.E.2d 178, 194 (1992). Although second-degree murder is a lesser included offense of first-degree, premeditated and deliberated murder, the trial court does not have to charge the jury on second-degree murder unless it is supported by the evidence. State v. Stevenson, 327 N.C. 259, 263, 393 S.E.2d 527, 529 (1990). In State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986), this Court set out the procedure to follow in determining whether the evidence of defendant's premeditation and deliberation was such as to require an instruction on second-degree murder.
We emphasize again that although it is for the jury to determine, from the evidence, whether a killing was done with premeditation and deliberation, the mere possibility of a negative finding does not, in every case, assume that defendant could be guilty of a lesser offense. Where the evidence belies anything other than a premeditated and deliberate killing, a jury's failure to find all the elements to support a verdict of guilty of first degree murder must inevitably lead to the Conclusion that the jury disbelieved the State's evidence and that defendant
is not guilty. The determinative factor is what the State's evidence tends to prove. If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial Judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.
Strickland, 307 N.C. at 293, 298 S.E.2d at 657-58.
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