State v. Gosnell, 231 N.C. App. 106 (Dec. 3, 2013)

Distinguishing State v. McHone, 174 N.C. App. 289, 294 (2005), the court held that no plain error occurred when the trial court failed to instruct that the jury must return a “not guilty” verdict if it was unable to conclude that the defendant committed first-degree murder on the basis of premeditation and deliberation. The court noted that the verdict sheet provided a space for a “not guilty” verdict and the trial court’s instructions on second-degree murder and the theory of lying in wait comported with the McHone final mandate requirement. With respect to premeditation and deliberation, the instruction stated, in part: “If you do not so find or have a reasonable doubt as to one or more of these things you would not return a verdict of “guilty of first-degree murder” on the basis of malice, premeditation and deliberation.”