#### STATE OF NORTH CAROLINA v. WILLIE LEE O’NEAL

No. 171P84

(Filed 28 August 1984)

ORDER

UPON consideration of the Attorney General’s notice of appeal from the North Carolina Court of Appeals, filed in this matter pursuant to G.S. 7A-30, and the Defendant’s motion to dismiss the appeal for lack of substantial constitutional question and upon consideration of the Attorney General’s petition for discretionary review of the decision of the North Carolina Court of Appeals, pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals: Defendant’s motion to dismiss the appeal is

> “Allowed by order of the Court in conference, this the 28th day of August 1984.”

The Attorney General’s petition for discretionary review is allowed for the sole purpose of entering the following order:

> “The Court of Appeals held that defendant was entitled to a new trial at which defendant ‘can at most be convicted of voluntary manslaughter.’ The Court of Appeals then remanded the case to the trial court for a new trial limited to the *748issue of whether defendant used excessive force in the commission of the homicide.

> The opinion of the Court of Appeals is modified to provide that defendant shall be entitled to a new trial on the question of his guilt or innocence of voluntary manslaughter. As modified, the decision of the Court of Appeals is affirmed and this cause is remanded to that court for proceedings not inconsistent with this Order.

> By order of the Court in conference, this the 28th day of August 1984.

Frye, J.

For the Court”