State v. Lail, ___ N.C. App. ___, 795 S.E.2d 401 (Dec. 30, 2016)

In this second-degree murder case, the trial court did not err by sentencing the defendant as a Class B1 felon. The defendant argued that the trial court erred because the jury returned a general verdict that failed to specify whether he had been found guilty of a Class B1 or B2 felony. The State proceeded under a deadly weapon implied malice theory rising from the defendant’s alleged use of a butcher knife to slash the victim’s throat. The trial judge instructed the jury on the definitions of express malice and deadly weapon implied malice (B1 second-degree murder) but not on depraved heart malice (B2 second-degree murder). The jury returned a general verdict second-degree murder. The court held that since the jury was not presented with evidence supporting a finding of depraved heart malice, its general verdict was unambiguous and the B1 sentence was proper. It noted however that where the jury is presented with both B2 depraved heart malice and a B1 malice theory a general verdict would be ambiguous. It stated: “in this situation, trial judges . . . should frame a special verdict requiring the jury to specify which malice theory supported it second-degree murder verdict.” In the course of its ruling the court also noted that depraved heart malice is not limited to driving while intoxicated homicide cases.