{ "id": 2570891, "name": "STATE OF NORTH CAROLINA v. JOHN FORREST", "name_abbreviation": "State v. Forrest", "decision_date": "1987-12-02", "docket_number": "No. 705A86", "first_page": "186", "last_page": "201", "citations": [ { "type": "official", "cite": "321 N.C. 186" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "243 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574115 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0577-01" ] }, { "cite": "322 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757671 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0304-01" ] }, { "cite": "361 S.E. 2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "567" } ], "opinion_index": 0 }, { "cite": "321 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570078 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0092-01" ] }, { "cite": "74 L.Ed. 2d 642", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1080", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6495875 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1080-01" ] }, { "cite": "293 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567859 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0151-01" ] }, { "cite": "322 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "78 L.Ed. 2d 117", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "215 S.E. 2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562950 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0408-01" ] }, { "cite": "297 S.E. 2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561161 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0152-01" ] }, { "cite": "263 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575737 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0671-01" ] }, { "cite": "251 S.E. 2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568184 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0559-01" ] }, { "cite": "337 S.E. 2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716135 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0040-01" ] }, { "cite": "271 S.E. 2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565819 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0243-01" ] }, { "cite": "78 L.Ed. 2d 704", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "464 U.S. 1004", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6493174 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/1004-01" ] }, { "cite": "78 L.Ed. 2d 177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "464 U.S. 865", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6401817 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/0865-01" ] }, { "cite": "301 S.E. 2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4709664 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0047-01" ] }, { "cite": "261 S.E. 2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "321 S.E. 2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759556 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0162-01" ] }, { "cite": "343 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "827" } ], "opinion_index": 0 }, { "cite": "317 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779521 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "22-23" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0001-01" ] }, { "cite": "49 L.Ed. 2d 1207", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6181252, 6182756, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182964, 6182388, 6181945, 6182076 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-01", "/us/428/0903-10", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-11", "/us/428/0903-08", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "210 S.E. 2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565329 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0304-01" ] }, { "cite": "252 S.E. 2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570107 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0693-01" ] }, { "cite": "259 S.E. 2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574062 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0752-01" ] }, { "cite": "324 S.E. 2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753163 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0519-01" ] }, { "cite": "171 S.E. 2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560458 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0157-01" ] }, { "cite": "261 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "opinion_index": 0 }, { "cite": "299 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573459 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/299/0103-01" ] }, { "cite": "309 S.E. 2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "254 S.E. 2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568581 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0247-01" ] }, { "cite": "297 S.E. 2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561231 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0184-01" ] }, { "cite": "165 S.E. 2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 1 }, { "cite": "275 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557792 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/nc/275/0069-01" ] }, { "cite": "220 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 1 }, { "cite": "288 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570479 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/nc/288/0632-01" ] } ], "analysis": { "cardinality": 1212, "char_count": 33528, "ocr_confidence": 0.828, "pagerank": { "raw": 1.9065105569843578e-07, "percentile": 0.7309597972700339 }, "sha256": "e74ed464c32f981f4887091d73fd6738ac3d7e8b93ec673dac6b5a709c486248", "simhash": "1:8361da2a3a4cddaa", "word_count": 5533 }, "last_updated": "2023-07-14T17:04:28.747837+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOHN FORREST" ], "opinions": [ { "text": "MEYER, Justice.\nDefendant was convicted of the first-degree murder of his father, Clyde Forrest. The State having stipulated before trial to the absence of any statutory aggravating factors under N.C.G.S. \u00a7 15A-2000, the case was tried as a noncapital case, and defendant was sentenced accordingly to life imprisonment. In his appeal to this Court, defendant brings forward three assignments of error relative to the guilt-innocence phase of his trial. Having considered the entire record and each of these assignments in turn, we find no error in defendant\u2019s trial. We therefore leave undisturbed defendant\u2019s conviction and life sentence.\nThe facts of this case are essentially uncontested, and the evidence presented at trial tended to show the following series of events. On 22 December 1985, defendant John Forrest admitted his critically ill father, Clyde Forrest, Sr., to Moore Memorial Hospital. Defendant\u2019s father, who had previously been hospitalized, was suffering from numerous serious ailments, including severe heart disease, hypertension, a thoracic aneurysm, numerous pulmonary emboli, and a peptic ulcer. By the morning of 23 December 1985, his medical condition was determined to be unbeatable and terminal. Accordingly, he was classified as \u201cNo Code,\u201d meaning that no extraordinary measures would be used to save his life, and he was moved to a more comfortable room.\nOn 24 December 1985, defendant went to the hospital to visit his ailing father. No other family members were present in his father\u2019s room when he arrived. While one of the nurse\u2019s assistants was tending to his father, defendant told her, \u201cThere is no need in doing that. He\u2019s dying.\u201d She responded, \u201cWell, I think he\u2019s better.\u201d The nurse\u2019s assistant noticed that defendant was sniffing as though crying and that he kept his hand in his pocket during their conversation. She subsequently went to get the nurse.\nWhen the nurse\u2019s assistant returned with the nurse, defendant once again stated his belief that his father was dying. The nurse tried to comfort defendant, telling him, \u201cI don\u2019t think your father is as sick as you think he is.\u201d Defendant, very upset, responded, \u201cGo to hell. I\u2019ve been taking care of him for years. I\u2019ll take care of him.\u201d Defendant was then left alone in the room with his father.\nAlone at his father\u2019s bedside, defendant began to cry and to tell his father how much he loved him. His father began to cough, emitting a gurgling and rattling noise. Extremely upset, defendant pulled a small pistol from his pants pocket, put it to his father\u2019s temple, and fired. He subsequently fired three more times and walked out into the hospital corridor, dropping the gun to the floor just outside his father\u2019s room.\nFollowing the shooting, defendant, who was crying and upset, neither ran nor threatened anyone. Moreover, he never denied shooting his father and talked openly with law enforcement officials. Specifically, defendant made the following oral statements: \u201cYou can\u2019t do anything to him now. He\u2019s out of his suffering.\u201d \u201cI killed my daddy.\u201d \u201cHe won\u2019t have to suffer anymore.\u201d \u201cI know they can burn me for it, but my dad will not have to suffer anymore.\u201d \u201cI know the doctors couldn\u2019t do it, but I could.\u201d \u201cI promised my dad I wouldn\u2019t let him suffer.\u201d\nDefendant\u2019s father was found in his hospital bed, with several raised spots and blood on the right side of his head. Blood and brain tissue were found on the bed, the floor, and the wall. Though defendant\u2019s father had been near death as a result of his medical condition, the exact cause of the deceased\u2019s death was determined to be the four point-blank bullet wounds to his head. Defendant\u2019s pistol was a single-action .22-calibre five-shot revolver. The weapon, which had to be cocked each time it was fired, contained four empty shells and one live round.\nAt the close of the evidence, defendant\u2019s case was submitted to the jury for one of four possible verdicts: first-degree murder, second-degree murder, voluntary manslaughter, or not guilty. After a lengthy deliberation, the jury found defendant guilty of first-degree murder. Judge Cornelius accordingly sentenced defendant to the mandatory life term.\nDefendant assigns three specific errors relative to his conviction at trial: first, that the trial court committed reversible error in its instruction to the jury concerning the issue of malice; second, that the trial court committed reversible error in its submission of the first-degree murder charge to the jury because there was insufficient evidence of premeditation and deliberation; third and finally, that the trial court committed reversible error when, during jury deliberation, it inquired into the jury\u2019s numerical division and subsequently instructed the jury about deliberating toward a verdict. We deal with each assignment of error in turn.\nI.\nIn his first assignment of error, defendant asserts that the trial court committed reversible error in its instruction to the jury concerning the issue of malice. Defendant makes three specific arguments in support of his position on this assignment of error. First, states defendant, the instruction permitting an inference of malice from the use of a deadly weapon on these particular facts constituted an impermissible shift of the burden of persuasion on the issue of malice to defendant. Second, continues defendant, the trial court erred in giving incomplete instructions on the element of malice and in thereby improperly suggesting that the mitigating evidence presented at trial neither negated malice nor showed heat of passion. Third, concludes defendant, the trial court erred more generally in giving instructions on malice which were simply erroneous and misleading. We find each of defendant\u2019s arguments unpersuasive, and we therefore overrule this assignment of error.\nOn the issue of malice, the trial court consistently instructed the jury as follows:\nMalice means not only hatred, ill-will or spite, as it is ordinarily understood; to be sure that\u2019s malice. But it also means that condition of the mind that prompts a person to take the life of another intentionally, or to intentionally inflict serious bodily harm which proximately results in his death without just cause, excuse or justification.\nIf the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon, or intentionally inflicted a wound upon the victim with a deadly weapon that proximatley [sic] caused the victim\u2019s death you may infer, first, that the killing was unlawful. Second, that it was done with malice. But you are not compelled to do so. You may consider this, along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.\nI charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death. But you may consider such belief in determining whether the killing was done with malice.\nIt is this instruction to which defendant now assigns error.\nDefendant first argues that, on the particular facts of this case, the trial court\u2019s instruction permitting an inference of malice from the use of a deadly weapon improperly shifted the burden of persuasion on the issue of malice to defendant. Here, claims defendant, where the facts presented tended to show a distraught son who wanted merely to end his father\u2019s suffering, the evidence in fact negated the element of malice. According to defendant, there was no rational connection here between the fact proved (intentional use of a dangerous weapon) and the fact inferred (malice). Therefore, concludes defendant, use of an inference under these circumstances was tantamount to shifting the burden of persuasion to defendant, because first, the jury was encouraged to draw the inference regardless of any other evidence presented, and second, it was told, in effect, that the inference could not be overcome \u2014 that the direct evidence was not a \u201clegal defense.\u201d We cannot agree.\nThe instruction employed by the trial court is in accord with the North Carolina Pattern Jury Instructions and with extensive North Carolina case law. See State v. Reynolds, 307 N.C. 184, 297 S.E. 2d 532 (1983); State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604 (1979). Significantly, the trial court did not instruct the jury that malice should be presumed. On the contrary, the trial court instructed the jury that it \u201cmay infer\u201d that the killing was unlawful and committed with malice, but that it was not compelled to do so. The trial court properly instructed the jury that it should consider this permissive inference along with all the other facts and circumstances, including defendant\u2019s belief that his father was terminally ill or in danger of immediate death, in deciding whether the State had proven malice beyond a reasonable doubt. Defendant\u2019s first argument therefore lacks merit.\nDefendant argues second that the trial court erred in giving incomplete instructions on the issue of malice, thereby improperly suggesting that any mitigating evidence presented did not negate malice or show heat of passion. While conceding that the instruction here was technically correct, defendant claims that it was nevertheless inadequate and misleading in that it failed to define what was meant by the phrase \u201cjust cause, excuse or justification.\u201d According to defendant, there is abundant evidence in the record that, upon seeing his father at the hospital, he was overwhelmed by the futile, horrible suffering before him and that, in a highly emotional state, he killed to bring relief to the man he deeply loved. The jury instruction employed by the trial court, concludes defendant, because it did not instruct on heat of passion, for all intents and purposes precluded the jury from considering these critical facts in mitigation of the offense. We do not agree with defendant, and we hold that a heat of passion jury instruction on facts such as those of the case at bar is improper.\nIn essence, defendant asks this Court to hold that his extreme distress over his father\u2019s suffering was adequate provocation, as in the \u201cheat of passion\u201d doctrine, to negate the malice element required for a murder conviction. Our Court has held on numerous occasions that, under certain circumstances, one who kills another human being in the \u201cheat of passion,\u201d produced by adequate provocation sufficient to negate malice, is guilty of manslaughter rather than murder. State v. Robbins, 309 N.C. 771, 309 S.E. 2d 188 (1983); State v. Jones, 299 N.C. 103, 261 S.E. 2d 1 (1979). A killing in the \u201cheat of passion\u201d on sudden and adequate provocation means a killing without premeditation under the influence of a sudden passion which renders the mind incapable of cool reflection. State v. Jones, 299 N.C. 103, 261 S.E. 2d 1; State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970).\nSignificantly, our Court has narrowly construed the requirement under the \u201cheat of passion\u201d doctrine that provocation be adequate and reasonable. We have held, for example, that mere words or insulting language, no matter how abusive, can never be adequate provocation and can never reduce murder to manslaughter under the \u201cheat of passion\u201d doctrine. State v. McCray, 312 N.C. 519, 324 S.E. 2d 606 (1985); State v. Montague, 298 N.C. 752, 259 S.E. 2d 899 (1979). We have held as adequate provocation an assault or threatened assault, State v. Montague, 298 N.C. 752, 259 S.E. 2d 899; State v. Williams, 296 N.C. 693, 252 S.E. 2d 739 (1979), and the discovery of the deceased spouse and a paramour in the act of intercourse, State v. Ward, 286 N.C. 304, 210 S.E. 2d 407, vacated in part 428 U.S. 903, 49 L.Ed. 2d 1207 (1974).\nWe are unwilling to hold that, as in the case at bar, where defendant kills a loved one in order to end the deceased\u2019s suffering, adequate provocation to negate malice is necessarily present. The \u201cheat of passion\u201d doctrine is meant to reduce murder to manslaughter when defendant kills without premeditation and deliberation and without malice, but rather under the influence of the heat of passion suddenly aroused which renders the mind temporarily incapable of cool reflection. State v. Jones, 299 N.C. 103, 261 S.E. 2d 1. Here, irrefutable proof of premeditation and deliberation is clearly present. This defendant, though clearly upset by his father\u2019s condition, indicated by his actions and his statements that his crime was premeditated and deliberate.\nThe instruction employed by the trial court was correct, and we reject this second of defendant\u2019s arguments that the jury instructions constitute reversible error.\nDefendant argues third that the trial court committed reversible error in giving instructions on the issue of malice which were erroneous and generally misleading. Defendant\u2019s objection here is essentially a grammatical one and is directed at that portion of the jury instruction which reads as follows:\n[Malice] also means that condition of the mind that prompts a person to take the life of another intentionally, . . . without just cause, excuse or justification.\nThe trial court, argues defendant, failed to explicitly and specifically qualify the particular definition of malice as \u201cthat condition of the mind that prompts a person to take the life of another intentionally\u201d with the important phrase \u201cwithout just cause, excuse or justification.\u201d This, claims defendant, almost certainly led the jury to conclude that the intentional shooting alone required them to find malice, despite any evidence to the contrary. The trial court, adds defendant, should have defined malice in its instruction as follows:\nThat condition of the mind which prompts a person, without just cause, excuse or justification to take the life of another intentionally\nor\nto intentionally inflict serious bodily harm which proximately results in his death.\nWe do not agree, and we therefore decline defendant\u2019s invitation to adopt a new jury instruction concerning the issue of malice. The instruction employed by the trial court is consistent with the North Carolina Pattern Jury Instructions and is the very instruction we have previously expressly approved on numerous occasions. State v. Reynolds, 307 N.C. 184, 297 S.E. 2d 532; State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604. Moreover, the instruction used at trial is, on its face, in essence the same as that for which defendant argues. Defendant\u2019s third argument in support of this assignment of error is without merit, and the assignment as a whole is hereby overruled.\nII.\nIn his second assignment of error, defendant asserts that the trial court committed reversible error in denying his motion for directed verdict as to the first-degree murder charge. Specifically, defendant argues that the trial court\u2019s submission of the first-degree murder charge was improper because there was insufficient evidence of premeditation and deliberation presented at trial. We do not agree, and we therefore overrule defendant\u2019s assignment of error.\nWe recently addressed this very issue in the case of State v. Jackson, 317 N.C. 1, 343 S.E. 2d 814 (1986). Our analysis of the relevant law in that case is instructive in the case at bar:\nBefore the issue of a defendant\u2019s guilt may be submitted to the jury, the trial court must be satisfied that substantial evidence has been introduced tending to prove each essential element of the offense charged and that the defendant was the perpetrator. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837 (1984); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). Substantial evidence must be existing and real, but need not exclude every reasonable hypothesis of innocence. State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 177, reh\u2019g denied, 464 U.S. 1004, 78 L.Ed. 2d 704 (1983). In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and inference to be drawn therefrom. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837; State v. Bright, 301 N.C. 243, 271 S.E. 2d 368 (1980). Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808 (1985); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114.\nFirst-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. State v. Fleming, 296 N.C. 559, 251 S.E. 2d 430 (1979); N.C.G.S. \u00a7 14-17 (1981 and Cum. Supp. 1985). Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808; State v. Myers, 299 N.C. 671, 263 S.E. 2d 768 (1980). Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837; State v. Bush, 307 N.C. 152, 297 S.E. 2d 563 (1982). The phrase \u201ccool state of blood\u201d means that the defendant\u2019s anger or emotion must not have been such as to overcome his reason. State v. Myers, 299 N.C. 671, 263 S.E. 2d 768.\nPremeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. State v. Buchanan, 287 N.C. 408, 215 S.E. 2d 80 (1975). Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808; State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 117, reh\u2019g denied, 464 U.S. 1004, 78 L.Ed. 2d 704. We have also held that the nature and number of the victim\u2019s wounds is a circumstance from which premeditation and deliberation can be inferred. State v. Bullard, 312 N.C. 129, 322 S.E. 2d 370 (1984); State v. Brown, 306 N.C. 151, 293 S.E. 2d 569, cert. denied, 459 U.S. 1080, 74 L.Ed. 2d 642 (1982).\nJackson, 317 N.C. at 22-23, 343 S.E. 2d at 827.\nAs in Jackson, we hold in the present case that there was substantial evidence that the killing was premeditated and deliberate and that the trial court did not err in submitting to the jury the question of defendant\u2019s guilt of first-degree murder based upon premeditation and deliberation. Here, many of the circumstances that we have held to establish a factual basis for a finding of premeditation and deliberation are present. It is clear, for example, that the seriously ill deceased did nothing to provoke defendant\u2019s action. Moreover, the deceased was lying helpless in a hospital bed when defendant shot him four separate times. In addition, defendant\u2019s revolver was a five-shot single-action gun which had to be cocked each time before it could be fired. Interestingly, although defendant testified that he always carried the gun in his job as a truck driver, he was not working on the day in question but carried the gun to the hospital nonetheless.\nMost persuasive of all on the issue of premeditation and deliberation, however, are defendant\u2019s own statements following the incident. Among other things, defendant stated that he had thought about putting his father out of his misery because he knew he was suffering. He stated further that he had promised his father that he would not let him suffer and that, though he did not think he could do it, he just could not stand to see his father suffer any more. These statements, together with the other circumstances mentioned above, make it clear that the trial court did not err in submitting to the jury the issue of first-degree murder based upon premeditation and deliberation. Accordingly, defendant\u2019s second assignment of error is overruled.\nIII.\nIn his third assignment of error, defendant asserts that the trial court committed reversible error when it inquired into the numerical division of the deliberating jury and when it subsequently instructed the jury about deliberating toward a verdict. Defendant claims that the trial court\u2019s actions taken in context were sufficiently coercive of the jury as to deny him a fair trial. We have recently addressed this very issue in a similar case, and we simply do not agree.\nDuring its deliberation at trial, the jury returned to the courtroom on several occasions with a specific question. On one such occasion, the exchange between the trial court and the jury proceeded as follows:\n[COURT]: Mrs. Kelly, as Foreperson of the jury, you have submitted a question to the Court. You have indicated that you are unable at this time to come to a unanimous decision. You would like the Court to advise you. Is that your question?\nForeperson: Yes, sir.\nCOURT: Listen very carefully to what I ask you. I\u2019m going to ask you the numerical division. I don\u2019t want you to tell me which way; just tell me the division numberwise the way the jury is now constituted.\nFOREPERSON: You mean in numbers?\nCOURT: Yes, ma\u2019m [sic].\nFOREPERSON: Eleven to one.\nCOURT: And has that number remained the same throughout the proceedings, or has it shifted from time to time?\nFOREPERSON: No, sir. It has been constant.\nCOURT: Members of the jury, your Foreperson has indicated that you\u2019ve been unable to reach a verdict at this particular point. The Court wants to emphasize the fact that it is your duty to do whatever you can to reach a verdict in this matter. You should reason the matter over together as reasonable men and women and to reconcile your differences if you can without the surrendering of your conscientious convictions. But no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of a fellow juror, or for the mere purpose of returning a verdict. The Court will now let. you return to the jury room to continue with your deliberations, and when you\u2019ve reached a unanimous verdict \u2014 please see if you can reach a unanimous verdict. If you can please knock on the door.\nIt was this inquiry and instruction by the trial court to which defendant now assigns error.\nThe disposition of defendant\u2019s assignment of error is controlled by our recent decision in the very similar case of State v. Bussey, 321 N.C. 92, 361 S.E. 2d 564 (1987). There, as here, defendant challenged the trial court\u2019s inquiry into the numerical division of the deliberating jury and its instruction concerning deliberating further toward a verdict. In Bussey, we reaffirmed our holding in State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389 (1984), that such cases are to be decided by employing a totality of the circumstances test. Bussey, 321 N.C. 92, 361 S.E. 2d 564. Therefore, the proper analysis here is whether, upon consideration of the totality of the circumstances, the inquiry and instruction of the trial court were unduly coercive.\nAs in Bussey, we hold here that, when viewed in the totality of the circumstances, the challenged inquiry and instruction were not coercive of the jury\u2019s verdict. Our exact analysis in Bussey is appropriate in the case at bar as well:\nThe record shows that the presiding judge made it perfectly clear from the outset that he did not wish to be told whether the majority favored guilt or innocence. He was at all times respectful of the jury, never impugning its efforts or threatening it with being held for unreasonable periods of time to accomplish a unanimous verdict. The judge was confronted with a report of deadlock .... He properly exercised his discretion to hold the jurors to their duty to deliberate thoroughly together before concluding that they were indeed unable to agree. The judge\u2019s additional instructions in response to the first inquiry of the jury hew closely to the language of N.C.G.S. \u00a7 15A-1235. They are notable for the balance he achieved between recalling the jurors to their duty to deliberate fully and reminding them that their duty also required them to stand fast for their convictions after full reflection. Nor is there the slightest reference in his remarks to burdens on the administration of justice, to wasted court resources, or to the necessity of empanelling another jury in the event of a mistrial. The trial judge\u2019s instructions and remarks were well within the rules established in State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389, and State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978).\nId. at 97, 361 S.E. 2d at 567.\nIn oral argument, defendant placed particular emphasis upon the final two sentences of the trial court\u2019s instruction to the jury, claiming that this amounted to pleading by the court that the jury reach a verdict. Specifically, the court concluded its instruction to the jury as follows:\nThe Court will now let you return to the jury room to continue with your deliberations, and when you\u2019ve reached a unanimous verdict \u2014 please see if you can reach a unanimous verdict. If you can please knock on the door.\nAssuming, arguendo, as defendant argues, that these two sentences, if taken out of context, might be considered of questionable propriety, we find that, in the context of the court\u2019s total instruction and, in particular, of its admonishment to the jury that no juror should surrender any conscientious convictions, this passage is not coercive and does not constitute error in the court\u2019s instructions.\nIn conclusion, having reviewed the record and each of defendant\u2019s assignments of error, we find that defendant had a fair trial, free of prejudicial error. Accordingly, we leave undisturbed defendant\u2019s conviction of the first-degree murder of Clyde Forrest and his sentence of life imprisonment.\nNo error.", "type": "majority", "author": "MEYER, Justice." }, { "text": "Chief Justice Exum\ndissenting.\nAlmost all would agree that someone who kills because of a desire to end a loved one\u2019s physical suffering caused by an illness which is both terminal and incurable should not be deemed in law as culpable and deserving of the same punishment as one who kills because of unmitigated spite, hatred or ill will. Yet the Court\u2019s decision in this case essentially says there is no legal distinction between the two kinds of killing. Our law of homicide should not be so roughly hewn as to be incapable of recognizing the difference. I believe there are legal principles which, when properly applied, draw the desirable distinction and that both the trial court and this Court have failed to recognize and apply them.\nThe difference, legally, between the two kinds of killings hinges on the element of malice, the former being without, and the latter with, malice. The absence of malice, however, does not mean the killing is justified or excused so as not to be unlawful; it means simply that the killing is mitigated so as not to be murder but manslaughter. Our cases have traditionally recognized the distinction between mitigation and excuse in the law of homicide. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), and cases therein cited and discussed.\nThe error in the trial court\u2019s instructions stems from the failure to recognize this difference between mitigation and excuse. The trial court instructed that malice was \u201cthat condition of mind that prompts a person to take the life of another intentionally .. . without just cause, excuse or justification.\u201d This instruction, correct insofar as it goes, is incomplete. The trial court should have added \u201cand without mitigation.\u201d\nFailure to include circumstances in mitigation as capable of rebutting malice, in effect, precluded the jury from considering at all defendant\u2019s reasons for killing his father on the issue of whether he acted with malice. The instructions were that only matters which excused the killing altogether were sufficient to rebut the element of malice! The trial court then told the jury that defendant\u2019s reasons for killing his father would not excuse the killing, saying,\nI charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death.\nAlthough the trial court followed this immediately with, \u201cBut you may consider such belief in determining whether the killing was done with malice,\u201d he gave the jury no theory by which the circumstances might in law rebut the inference of malice which arose from the intentional killing with a deadly weapon. In essence this instruction was superfluous because the jury had already been told that only legal defenses, as opposed to circumstances in mitigation, could be considered on the issue of malice. At best the instructions were conflicting on the crucial element in the case. Ordinarily this kind of error calls for a new trial. State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969).\nThe jury\u2019s confusion concerning the malice instructions is revealed by their three requests that the trial court repeat them and the trial court\u2019s finally submitting them to the jury in writing.\nFor this error in the trial court\u2019s instructions, I vote to give defendant a new trial.", "type": "dissent", "author": "Chief Justice Exum" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by William P. Hart, Assistant Attorney General, for the State.", "Van Camp, Gill, Bryan & Webb, P.A., by James R. Van Camp, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN FORREST\nNo. 705A86\n(Filed 2 December 1987)\n1. Homicide \u00a7 24.1\u2014 shooting terminally ill parent \u2014 instructions on malice\nIn a murder prosecution where defendant had shot and killed his incurably and terminally ill father, the trial court did not err by instructing the jury that it could infer from the use of a deadly weapon that the killing was unlawful and committed with malice, and did not instruct the jury that malice should be presumed.\n2. Homicide \u00a7 27.1\u2014 shooting of terminally ill parent \u2014 instructions\u2014heat of passion doctrine\nIn a murder prosecution arising from defendant\u2019s shooting of his terminally ill father, the trial court\u2019s instruction on malice was not incomplete in that it failed to define \u201cjust cause, excuse, or justification.\u201d The \u201cheat of passion\u201d doctrine is meant to reduce murder to manslaughter where defendant kills without premeditation and deliberation and without malice, but under the heat of passion suddenly aroused which makes the mind temporarily incapable of reflection. This defendant, though clearly upset by his father\u2019s condition, indicated by his actions and his statements that his crime was premeditated and deliberate.\n3. Homicide \u00a7 23.1\u2014 instructions \u2014 definition of malice\nThe trial judge did not err in its instruction on malice in a first degree murder prosecution by failing to explicitly and specifically qualify the particular definition of malice as \u201cthat condition of mind that prompts a person to take the life of another intentionally\u201d with the phrase \u201cwithout just cause, excuse or justification.\u201d The instruction given was consistent with the N.C. Pattern Jury Instructions, has been approved by the Supreme Court on numerous occasions, and is in essence the same as that which defendant argues.\n4. Homicide \u00a7 18.1\u2014 killing of terminally ill parent \u2014 evidence of premeditation and deliberation \u2014 sufficient\nThere was sufficient evidence of premeditation and deliberation to submit a first degree murder charge to the jury where it was clear that the seriously ill deceased did nothing to provoke defendant\u2019s action; the deceased was lying helpless in a hospital bed when defendant shot him four separate times; defendant\u2019s revolver was a five-shot single-action gun which had to be cocked each time before it could be fired; although defendant testified that he always carried the gun in his job as a truck driver, he was not working on the day in question; and defendant stated after the incident that he had thought about putting his father out of his misery because he knew he was suffering, that he had promised his father that he would not let him suffer, and that he could not stand to see his father suffer any more.\n5. Criminal Law \u00a7 122.2\u2014 divided jury \u2014 inquiry into division \u2014 additional instructions \u2014 no error\nThe trial court did not err in a murder prosecution by inquiring into the numerical division of the jury or in its instructions to the jury about deliberating toward a verdict where the inquiry and instructions were not coercive when viewed in the totality of the circumstances.\nChief Justice Exum dissenting.\nBEFORE Cornelius, J., and a jury at the 30 June 1986 Special Criminal Session of Superior Court, MOORE County, defendant was convicted of first-degree murder. From that conviction and the subsequent imposition of a sentence of life imprisonment entered by Judge Cornelius, defendant appeals as of right pursuant to N.C.G.S. \u00a7 7A-27(a). Heard in the Supreme Court 13 October 1987.\nLacy H. Thornburg, Attorney General, by William P. Hart, Assistant Attorney General, for the State.\nVan Camp, Gill, Bryan & Webb, P.A., by James R. Van Camp, for defendant-appellant." }, "file_name": "0186-01", "first_page_order": 214, "last_page_order": 229 }