North Carolina § 14-17 - Murder in the first and second degree defined; punishment.

§ 14-17. Murder in the first and second degree defined; punishment.

A murder which shall be perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction as defined in G.S. 14-288.21, poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State's prison for life without parole as the court shall determine pursuant to G.S. 15A-2000, except that any such person who was under 18 years of age at the time of the murder shall be punished in accordance with Part 2A of Article 81B of Chapter 15A of the General Statutes. If a murder was perpetrated with malice as described in subdivision (1) of subsection (b) of this section, and committed against a spouse, former spouse, a person with whom the defendant lives or has lived as if married, a person with whom the defendant is or has been in a dating relationship as defined in G.S. 50B-1(b)(6), or a person with whom the defendant shares a child in common, there shall be a rebuttable presumption that the murder is a "willful, deliberate, and premeditated killing" under subsection (a) of this section and shall be deemed to be murder in the first degree, a Class A felony, if the perpetrator has previously been convicted of one of the following offenses involving the same victim: An act of domestic violence as defined in G.S. 50B-1(a). A violation of a domestic violence protective order under G.S. 50B-4.1(a), (f), (g), or (g1) or G.S. 14-269.8 when the same victim is the subject of the domestic violence protective order. Communicating a threat under G.S. 14-277.1. Stalking as defined in G.S. 14-277.3A. Cyberstalking as defined in G.S. 14-196.3. Domestic criminal trespass as defined in G.S. 14-134.3. A murder other than described in subsection (a) or (a1) of this section or in G.S. 14-23.2 shall be deemed second degree murder. Any person who commits second degree murder shall be punished as a Class B1 felon, except that a person who commits second degree murder shall be punished as a Class B2 felon in either of the following circumstances: The malice necessary to prove second degree murder is based on an inherently dangerous act or omission, done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief. The murder is one that was proximately caused by the unlawful distribution of any opium, opiate, or opioid; any synthetic or natural salt, compound, derivative, or preparation of opium, or opiate, or opioid; cocaine or other substance described in G.S. 90-90(1)d.; methamphetamine; or a depressant described in G.S. 90-92(a)(1), and the ingestion of such substance caused the death of the user. For the purposes of this section, it shall constitute murder where a child is born alive but dies as a result of injuries inflicted prior to the child being born alive. The degree of murder shall be determined as described in subsections (a) and (b) of this section. History (1893, cc. 85, 281; Rev., s. 3631; C.S., s. 4200; 1949, c. 299, s. 1; 1973, c. 1201, s. 1; 1977, c. 406, s. 1; 1979, c. 682, s. 6; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1251, ss. 1, 2; c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; c. 662, s. 1; 1987, c. 693; 1989, c. 694; 1993, c. 539, s. 112; 1994, Ex. Sess., c. 21, s. 1; c. 22, s. 4; c. 24, s. 14(c); 2001-470, s. 2; 2004-178, s. 1; 2007-81, s. 1; 2012-165, s. 1; 2013-47, s. 2; 2013-410, s. 3(a); 2017-94, s. 1; 2017-115, s. 9.) Cross References. - As to provisions regarding transfer to superior court, see G.S. 7B-2200 . As to accomplices, see G.S. 14-5.2 . As to nuclear, biological, or chemical weapons of mass destruction, see G.S. 14-288.21 et seq. As to assault in this State, but death in another, see G.S. 15-131 . As to indictment for homicide, see G.S. 15-144 . As to verdict in prosecution for homicide, see G.S. 15-172 . For structured sentencing provisions, see G.S. 15A-1340.10 et seq. As to eligibility for parole of prisoners serving life sentence, see G.S. 15A-1371 . As to capital punishment, see G.S. 15A-2000 et seq. As to provisions regarding controlled substances, see G.S. 90-90 . Editor's Note. - Session Laws 2012-165 provides in its preamble: "Whereas, the State must prove that the defendant acted with malice to obtain a conviction of second degree murder; and "Whereas, North Carolina case law holds that malice may be shown in three different ways: by hatred, ill will, or spite; a condition of the mind which prompts a person to take the life of another intentionally or to intentionally inflict serious bodily injury which proximately results in another's death, without just cause, excuse or justification; or the commission of an inherently dangerous act or omission, in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief; Now, therefore;" Session Laws 2012-165, s. 4, made the amendments to this section by Session Laws 2012-165, s. 1, which amended subsection (a) and added subsection (b), applicable to offenses committed on or after December 1, 2012. Session Laws 2013-47, s. 1, provides: "This act shall be known as 'Lily's Law.'" Session Laws 2013-47, s. 3, provides: "This act becomes effective December 1, 2013, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the common law and statutes that would be applicable but for this act remain applicable to those prosecutions. The statutes, including Article 6A of Chapter 14 of the General Statutes, and the common law shall remain applicable to offenses not described in this act, whether the offense is charged due to a child being born alive and who dies or who is born alive with injuries resulting from injuries inflicted prior to being born alive. Nothing in this act shall be construed to apply to an unintentional act or omission committed by the child's birth mother during the pregnancy that culminated in the birth of the child." Session Laws 2013-47, s. 2, added subsection (c). Session Laws 2017-94, s. 2, made subsection (a1), as added by Session Laws 2017-94, s. 1, effective December 1, 2017, and applicable to offenses committed on or after that date. Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act."' Session Laws 2017-115, s. 12, made the rewriting of subdivision (b)(2) by Session Laws 2017-115, s. 9, effective December 1, 2017, and applicable to offenses committed on or after that date. Effect of Amendments. - Session Laws 2004-178, s. 1, effective December 1, 2004, and applicable to offenses committed on or after that date, inserted "or methamphetamine" preceding "when the ingestion" in the last sentence. Session Laws 2007-81, s. 1, effective June 14, 2007, substituted "18 years" for "17 years" near the end of the first sentence; and deleted the former second sentence, which read: "Provided, however, any person under the age of 17 who commits murder in the first degree while serving a prison sentence imposed for a prior murder or while on escape from a prison sentence imposed for a prior murder shall be punished with death or imprisonment in the State's prison for life without parole as the court shall determine pursuant to G.S. 15A-2000 ." Session Laws 2012-165, s. 1, effective December 1, 2012, added the subsection (a) designation; deleted the last sentence in subsection (a), which formerly read: "All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90-90(1) d., or methamphetamine, when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree, and any person who commits such murder shall be punished as a Class B2 felon."; and added subsection (b). For applicability, see editor's note. Session Laws 2013-47, s. 2, effective December 1, 2013, added subsection (c). For effective date and applicability, see Editor's note. Session Laws 2013-410, s. 3(a), effective August 23, 2013, substituted "in accordance with Part 2A of Article 81B of Chapter 15A of the General Statutes" for "with imprisonment in the State's prison for life without parole" at the end of subsection (a). Session Laws 2017-94, s. 1, added subsection (a1); and inserted "or (a1)" in the first sentence of subsection (b). For effective date and applicability, see editor's note. Session Laws 2017-115, s. 9, rewrote subdivision (b)(2), which read: "The murder is one that was proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90-90(1) d., or methamphetamine, and the ingestion of such substance caused the death of the user." For effective date and applicability, see editor's note. Legal Periodicals. - For brief comment on the argument of counsel as to the death penalty, see 32 N.C.L. Rev. 438 (1954). For note as to improper court response to spontaneous jury inquiry as to pardon and parole possibilities, see 33 N.C.L. Rev. 665 (1955). For comment on homicide by fright, see 44 N.C.L. Rev. 844 (1966). For case law survey as to homicide, see 45 N.C.L. Rev. 918 (1967). For comment on the felony-murder doctrine, see 3 Wake Forest Intra. L. Rev. 20 (1967). For article, "Capital Punishment and Life Imprisonment in North Carolina, 1946 to 1968: Implications for Abolition of the Death Penalty," see 6 Wake Forest Intra. L. Rev. 417 (1970). For note on voluntariness of guilty pleas in plea-bargaining context, see 49 N.C.L. Rev. 795 (1971). For comment, "An Historical Analysis of Mandatory Capital Punishment," see 7 N.C. Cent. L.J. 306 (1976). For note on the burden of proof for affirmative defenses in homicide cases, see 12 Wake Forest L. Rev. 423 (1976). For note on the erosion of the retreat rule and self-defense, see 12 Wake Forest L. Rev. 1093 (1976). For survey of 1976 case law on constitutional law, see 55 N.C.L. Rev. 965 (1977). For comment on the merger doctrine as a limitation on the felony-murder rule, see 13 Wake Forest L. Rev. 369 (1977). For survey of 1977 law on criminal procedure, see 56 N.C.L. Rev. 983 (1978). For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979). For survey of 1979 law on criminal procedure, see 58 N.C.L. Rev. 1404 (1980). For comment on capital punishment and evolving standards of decency, see 16 Wake Forest L. Rev. 737 (1980). For comment on capital sentencing statute, see 16 Wake Forest L. Rev. 765 (1980). For comment on capital punishment in North Carolina, see 59 N.C.L. Rev. 911 (1981). For survey of 1980 criminal law, see 59 N.C.L. Rev. 1123 (1981). For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982). For note discussing the availability of the imperfect right of self-defense in homicide cases in light of State v. Norris, 303 N.C. 526 , 279 S.E.2d 570 (1981), see 4 Campbell L. Rev. 427 (1982). For article discussing shortcomings of the North Carolina homicide law, see 19 Wake Forest L. Rev. 331 (1983). For note discussing North Carolina's capital sentencing procedure, see 62 N.C.L. Rev. 833 (1984). For 1984 survey, "The Evolution of North Carolina's Comparative Proportionality Review in Capital Cases," see 63 N.C.L. Rev. 1146 (1985). For article, "Prosecutorial Abuse of Peremptory Challenges in Death Penalty Litigation: Some Constitutional and Ethical Considerations," see 8 Campbell L. Rev. 71 (1985). For note, "Murder and the Tort of Intentional Infliction of Emotional Distress," see 1986 Duke L.J. 572. For survey of 1987 law on felony murder, see 65 N.C.L. Rev. 1220 (1987). For survey of 1987 law on murder by poison, see 65 N.C.L. Rev. 1231 (1987). For article, "Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated," see 66 N.C.L. Rev. 283 (1988). For note, "Overstepping Precedent? Tison v. Arizona Imposes the Death Penalty on Felony Murder Accomplices," see 66 N.C.L. Rev. 817 (1988). For note, "Mercy Killing and Malice in North Carolina," see 66 N.C.L. Rev. 1160 (1988). For note on the battered woman syndrome, see 11 Campbell L. Rev. 263 (1989). For comment, "Ending the Continuous Reign of Terror: Sleeping Husbands, Battered Wives, and the Right of Self-Defense," see 24 Wake Forest L. Rev. 959 (1989). For note, "State v. Thomas: The North Carolina Supreme Court Determines That There Are Lesser Included Offenses of Felony Murder," see 68 N.C. L. Rev. 1127 (1990). For note, "State v. Beale and the Killing of a Viable Fetus: An Exercise in Statutory Construction and the Potential for Legislative Reform," see 68 N.C. L. Rev. 1144 (1990). For note, "State v. Norman: Self-Defense Unavailable to Battered Women Who Kill Passive Abusers," see 68 N.C. L. Rev. 1159 (1990). For comment, "Insanity Defense: Should the Shock of the Hayes Verdict Compel North Carolina to Fix What 'Ain't Broke'?", see 25 Wake Forest L. Rev. 547 (1990). For article, "On Self-Defense, Imminence, and Women Who Kill Their Batterers," see 71 N.C.L. Rev. 371 (1993). For note, "State v. Jennings: Public Fervor, the North Carolina Supreme Court, and Society's Ultimate Punishment," see 72 N.C.L. Rev. 1672 (1994). For article, "Person or Thing - In Search of the Legal Status of a Fetus: A Survey of North Carolina Law," see 17 Campbell L. Rev. 169 (1995). For article, "Was the First Woman Hanged in North Carolina a 'Battered spouse?'", see 19 Campbell L. Rev. 311 (1997). For a note on judicial limitations on the attempted felony-murder rule, see 76 N.C.L. Rev. 2360 (1998). For comment, "North Carolina's Unconstitutional Expansion of an Ancient Maxim: Using DWI Fatalities to Satisfy First Degree Felony Murder," see 22 Campbell L. Rev. 169 (1999). For article, "Shaken Baby Syndrome as Felony Murder in North Carolina," see 34 Campbell L. Rev. 423 (2012).