State v. Mosley, ___ N.C. App. ___, 806 S.E.2d 365 (Oct. 17, 2017)

In this second-degree murder case, the trial court erred by sentencing the defendant as a Class BI felon. The jury unanimously convicted the defendant of second-degree murder. The verdict however was silent as to whether the second-degree murder was a Class BI or B2 offense. The court held that the jury’s general verdict of guilty of second-degree murder was ambiguous for sentencing purposes because, in this case, there was evidence of depraved-heart malice to support a verdict of guilty of a Class B2 second-degree murder. Specifically, there was evidence of the defendant’s reckless use of a rifle. The court distinguished the case from State v. Lail, ___ N.C. App. ___, 795 S.E.2d 401 (2016). And it went on to state:

In order to avoid such ambiguity in the future, we recommend two actions. First, the second degree murder instructions contained as a lesser included offense in N.C.P.I.--Crim. 206.13 should be expanded to explain all the theories of malice that can support a verdict of second degree murder, as set forth in N.C.P.I.--Crim. 206.30A. Secondly, when there is evidence to support more than one theory of malice for second degree murder, the trial court should present a special verdict form that requires the jury to specify the theory of malice found to support a second degree murder conviction.