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North Carolina v. Thomas11/19/1992
--/REF--> An instruction on the lesser offense of second-degree murder is not required where there is not a scintilla of evidence to support the lesser verdicts. Id. at 286, 298 S.E.2d at 653.
In the case sub judice, the State's evidence supports only a first-degree murder instruction. First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. N.C.G.S. ยง 14-17 (1989); State v. Brown, 315 N.C. 40, 58, 337 S.E.2d 808, 822 (1985), cert. denied, 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation; it is sufficient if the process of premeditation occurred at any point prior to the killing. Brown, 315 N.C. at 58, 337 S.E.2d at 822. Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose, and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. Id. A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation, and therefore, proof of premeditation and deliberation is also proof of intent to kill. State v. Lowery, 309 N.C. 763, 768, 309 S.E.2d 232, 237 (1983).
An unlawful killing is deliberated and premeditated if done as part of a fixed design to kill, notwithstanding the fact that the defendant was angry or emotional at the time, unless such anger or emotion was strong enough to disturb the defendant's ability to reason. State v. Fisher, 318 N.C. 512, 517, 350 S.E.2d 334, 338 (1986). The requirement of a "cool state of blood" does not require that the defendant be calm or tranquil. State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980). The phrase "cool state of blood"
means that the defendant's anger or emotion must not have been such as to overcome the defendant's reason. State v. Brown, 315 N.C. at 58, 337 S.E.2d at 822.
As previously stated, while in the defendant's truck, defendant grabbed the victim's breast, at which time the victim "backhanded" the defendant. By his own admission, defendant stated that he began beating the victim about the head and face. As defendant told Deputy McLean, when he saw the victim's blood, he became more enraged and continued to beat her. Fearing that she was going to be raped, the victim removed her clothing. At this point, defendant states:
After she took her clothes off, I started kissing her and biting her, biting on her [breasts]. She didn't do anything. She was moaning, so I knew she was conscious. She was fighting, kicking and screaming. I was getting rougher, biting her titties. I knew I was too rough because they were bleeding. I was lying beside her. I was playing with her vagina. I put four fingers inside her. I said, "My little [penis] ain't going to do anything for you," so I got some cream from the floorboard and creamed by hand. I stuck my hand up her vagina past my wrist in and out a couple of times. She grunted and I thought she was getting into it. When I put my hand in a second time and went back and forth, I felt it
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