Homicide grading, felony murder, self-defense, and burdens of proof (North Carolina statutes and Supreme Court cases)

Black-letter propositions

1. 01

   In North Carolina, a murder committed by poison, lying in wait, imprisonment, starving, torture, or any other willful, deliberate, and premeditated killing, or in the perpetration or attempted perpetration of arson, rape or a sex offense, robbery, kidnapping, burglary, or another felony committed with a deadly weapon, is first-degree murder.

2. 02

   In North Carolina, a murder that is not first-degree murder is second-degree murder.

3. 03

   A person is justified in using force other than deadly force when and to the extent that the person reasonably believes it necessary to defend himself or another against the other's imminent use of unlawful force.

4. 04

   A person is justified in using deadly force, with no duty to retreat in a place he or she has a lawful right to be, if he or she reasonably believes it is necessary to prevent imminent death or great bodily harm to himself, herself, or another.

5. 05

   A lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm when using deadly force against a person who was unlawfully and forcefully entering, or had unlawfully and forcibly entered, if the occupant knew or had reason to believe the entry was occurring.

6. 06

   The presumption is rebuttable and does not apply when the person against whom force is used has the right to be in or is a lawful resident of the home, or is a child or grandchild in the occupant's custody, or when the defender is engaged in a criminal offense involving the use of the home.

7. 07

   The justification for defensive force is not available to a person who was attempting to commit, committing, or escaping after committing a felony, or who initially provoked the use of force against himself.

8. 08

   An initial provoker regains the justification if the force used against him becomes so serious that he reasonably believes he is in imminent danger of death or serious bodily harm, has no reasonable means to retreat, and deadly force is the only way to escape, or if he withdraws in good faith and clearly indicates the desire to end the fight but the other person continues.

9. 09

   The death penalty for a robber who did not kill, attempt to kill, or intend to kill or that lethal force be used is inconsistent with the Eighth Amendment, but a felony participant whose participation is major and whose mental state is reckless indifference to human life may be sentenced to death.

10. 10

    Due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime, so a state cannot require a homicide defendant to disprove heat of passion when that issue is properly raised as an element, but a state may require the defendant to prove an affirmative defense like extreme emotional disturbance by a preponderance.

Use this attack sequence under time

Common wrong turns

• A killing during a listed felony is first-degree murder without proof of premeditation.
• A person with a lawful right to be in a place has no duty to retreat before using deadly force to prevent imminent death or great bodily harm.
• The presumption of reasonable fear does not apply against a lawful resident of the home.
• An initial provoker can regain defensive force only in the stated situations.

Worked example

Ana, a lawful occupant, wakes to find an intruder forcing open her bedroom door and, reasonably fearing for her life, shoots and kills him. The intruder was not a resident and she did not provoke him.

Practice this topic

Degrees of murder

North Carolina General Statutes section 14-17(a) provides that a murder perpetrated by poison, lying in wait, imprisonment, starving, torture, or any other kind of willful, deliberate, and premeditated killing, or committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon, is murder in the first degree, and section 14-17(b) provides that a murder not described in subsection (a) is second-degree murder.

Enmund v. Florida held that imposing the death penalty on a person who participated in a robbery in the course of which a murder was committed, but who did not kill, attempt to kill, or intend that lethal force be used, is inconsistent with the Eighth and Fourteenth Amendments. Tison v. Arizona held that the Eighth Amendment does not prohibit the death penalty for a defendant whose participation in a felony resulting in murder is major and whose mental state is reckless indifference to human life.

Defense of self and others

North Carolina General Statutes section 14-51.3(a) provides that a person is justified in using force, except deadly force, when the person reasonably believes it necessary to defend himself or another against the other's imminent use of unlawful force, and is justified in using deadly force with no duty to retreat in any place he or she has the lawful right to be if he or she reasonably believes it necessary to prevent imminent death or great bodily harm. Section 14-51.3(b) gives a person who uses force as permitted immunity from civil or criminal liability, with an exception for lawfully acting law enforcement officers who identified themselves or were known to be officers.

Section 14-51.2 presumes that a lawful occupant of a home, motor vehicle, or workplace reasonably feared imminent death or serious bodily harm if the person against whom force was used was unlawfully and forcefully entering or had unlawfully and forcibly entered, and the occupant knew or had reason to believe the entry was occurring. The presumption is rebuttable and does not apply where the person has the right to be there, is a child or grandchild in the occupant's custody, or where the occupant is engaged in a criminal offense involving the use of the home, motor vehicle, or workplace.

Section 14-51.4 makes the justification unavailable to a person who was attempting to commit, committing, or escaping after a felony, or who initially provoked the use of force against himself, but the provoker is justified if the responding force becomes so serious that he reasonably believes he is in imminent danger of death or serious bodily harm, he has no reasonable means to retreat, and deadly force is the only way to escape, or if he withdraws in good faith, clearly indicates it, and the other person continues.

Burdens of proof

Mullaney v. Wilbur held that a Maine rule requiring the defendant to prove heat of passion on sudden provocation to reduce murder to manslaughter did not comport with the Due Process Clause, and that the prosecution must prove beyond a reasonable doubt the absence of heat of passion when the issue is properly presented.

Patterson v. New York held that a New York law requiring the defendant charged with second-degree murder to prove the affirmative defense of extreme emotional disturbance by a preponderance of the evidence to reduce the crime to manslaughter did not violate the Due Process Clause, because the defense does not negate any fact of the crime that the state must prove and Mullaney was distinguished.

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