State v. Strickland , 307 N.C. 274 ( 1983 )

MEYER, Justice.

Defendant first assigns as error the trial court’s failure to instruct the jury on a charge of second degree murder. He quotes the following language appearing in our opinion of State v. Harris, 290 N.C. 718, 730, 228 S.E. 2d 424, 432 (1976):

[I]n all cases in which the State relies upon premeditation and deliberation to support a conviction of murder in the first degree, the trial court must submit to the jury an issue of murder in the second degree.

It is defendant’s contention that the rule enunciated in Harris merely reaffirmed our prior ruling in State v. Perry, 209 N.C. 604, 184 S.E. 545 (1936), and that the rule has since been reaffirmed in State v. Keller, 297 N.C. 674, 256 S.E. 2d 710 (1979), and State v. Poole, 298 N.C. 254, 258 S.E. 2d 339 (1979). We disagree with the defendant that Perry, like Harris, mandates a second degree murder instruction in every case in which the State relies on premeditation and deliberation to support a conviction of first degree murder. We are further compelled to re-evaluate our decision in Harris in light of the recent Supreme Court decision in Hopper v. Evans, — U.S. —, 72 L.Ed. 2d 367 (1982).

We note initially that defendant was tried and convicted in December 1971, prior to our 1976 decision in Harris. Thus our first inquiry is directed toward an interpretation of the law in the pre-Harris cases, applicable to defendant on the date of his trial. As defendant further invokes the benefit of our subsequent interpretation and refinement of the law of these cases as set out in Harris, our inquiry must necessarily turn to a discussion of the “Harris rule” as affected by the interpretation we now place on those cases purportedly giving rise to the rule. See State v. Perry, 209 N.C. 604, 184 S.E. 545; State v. Newsome, 195 N.C. 552, 143 S.E. 187 (1928); State v. Spivey, 151 N.C. 676, 65 S.E. 995 (1909).

Important to this interpretation is the language found in G.S. § 14-17, which defines murder in the first degree. While kidnapping was not a specified felony under the statute as it appeared in 1971, the present version of the statute is substantially the same and provides in pertinent part:

A murder which shall be perpetrated by means of 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, ....

We read G.S. § 14-17 as separating first degree murder into four distinct classes as determined by the proof. The four classes are as follows:

I Murder perpetrated by means of poison, lying in wait, imprisonment, starving or torture;

II Murder perpetrated by any other kind of willful, deliberate and premeditated killing;

III Murder committed in the perpetration or attempted perpetration of certain enumerated felonies;

IV Murder committed in the perpetration or attempted perpetration of any other felony committed or attempted with the use of a deadly weapon.

See State v. Davis, 305 N.C. 400, 290 S.E. 2d 574 (1982), for a history of the Statute.

I

Where the homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture, all of which require planning or purpose, the law conclusively presumes that the murder was committed with premeditation and deliberation, and where the evidence produced at trial supports a finding that the murder was so perpetrated, a defendant can properly be convicted of first degree murder. State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1971); State v. Hendrick, 232 N.C. 447, 61 S.E. 2d 349 (1950); State v. Dunheen, 224 N.C. 738, 32 S.E. 2d 322 (1944). See Barfield v. Harris, 540 F. Supp. 451, 468 (E.D.N.C. 1982). This Court has consistently held that under these circumstances the trial court is not required to instruct the jury on second degree murder. State v. Perry, 209 N.C. 604, 184 S.E. 545; State v. Newsome, 195 N.C. 552, 143 S.E. 187; State v. Spivey, 151 N.C. 676, 65 S.E. 995. We regard this particular aspect of the statute and cases construing it as significant to our determination of the issue before us, for it serves to place the issue of the trial judge’s duty to instruct on a lesser offense within the context of an evidentiary determination rather than requiring such an instruction as a matter of law in every case. When the evidence presumptively supports a finding of premeditation and deliberation as in the case of murder by poison, lying in wait, imprisonment, starving or torture, there is no justification for submitting to the jury a charge on one of the lower grades of murder. As we stated in Spivey, “[i]t becomes the duty of the trial judge to determine, in the first instance, if there is any evidence or if any inference can be fairly deduced therefrom, tending to prove one of the lower grades of murder.” 151 N.C. at 686, 65 S.E. at 999. The test, therefore, in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime,¹ but whether the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged. See 4 N.C. Index 3d, Criminal Law, § 115.

It is an elementary rule of law that a trial judge is required to declare and explain the law arising on the evidence and to instruct according to the evidence. State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393. “ ‘The trial court is not required to charge the jury upon the question of the defendant’s guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of defendant’s guilt of such lesser degrees’ . . . .” State v. Shaw, 305 N.C. 327, 342, 289 S.E. 2d 325, 333 (1982).

Hence, by recognizing the important connection between what the evidence must show in determining what instructions must be given, the omission of an instruction on second degree murder in cases involving poison, lying in wait, etc., is entirely proper and consistent with our many decisions regarding the trial judge’s duty to limit his instructions in accordance with the evidence presented.

II

Where a homicide is perpetrated by means of any other kind of willful, deliberate and premeditated killing, upon proof of the requisite elements, a defendant can be properly convicted of murder in the first degree. We find the following to be an accurate statement of the law respecting the State’s burden of proof on the elements of premeditation and deliberation and the trial court’s duty to submit the question to the jury:

Deliberation and premeditation, if relied upon by the State, as constituting the homicide murder in the first degree, under the statute, must always be proved by the evidence, beyond a reasonable doubt. In such case, under the statute as construed by this Court, it is for the jury and not the judge to find the fact of deliberation and premeditation, from the evidence, and beyond a reasonable doubt. Premeditation and deliberation are always matters of fact to be determined by the jury, and not matters of law to be determined by the judge.

State v. Newsome, 195 N.C. at 564, 143 S.E. at 193.

We do not, however, read this language as requiring, as a matter of law, that an instruction on second degree murder is mandated in every case merely because the jury must determine the existence of premeditation and deliberation in order to convict defendant of first degree murder. Neither Spivey, Newsome, nor Perry so holds. The test in Spivey is whether there is evidence which would support a verdict of murder in the second degree.

If, however, there is any evidence or if any inference can be fairly deduced therefrom, tending to show one of the lower grades of murder, it is then the duty of the trial judge, under appropriate instructions, to submit that view to the jury.

State v. Spivey, 151 N.C. at 686, 65 S.E. at 999.

Likewise, in Newsome the following language indicates that the decision to instruct on the lesser grade of murder is an evidentiary one:

When on the trial of a criminal prosecution it is permissible under the bill, as here, to convict the defendant of ‘a less degree of the same crime’ (C.S., 4640), and there is evidence tending to support a milder verdict, the case presents a situation where the defendant is entitled to have the different views presented to the jury, under a proper charge,

State v. Newsome, 195 N.C. at 566, 143 S.E. at 194 (emphasis added). (Stacy, C.J., concurring in result.)

And in Perry we again find that although the jury must ultimately determine the existence of every element of first degree murder, it is the trial judge, upon his consideration of the evidence, who must determine whether to submit an instruction on a lesser grade of murder.

Whenever there is any evidence or when any inference can be fairly deduced therefrom tending to show a lower grade of murder, it is the duty of the trial judge, under appropriate instructions, to submit that view to the jury.

State v. Perry, 209 N.C. at 606, 184 S.E. at 546.

Should the trial judge find, for example, that defendant’s own evidence affirmatively negates the possibility that he did not intend to kill the victim, an instruction on the offense of an unintentional killing is not warranted. See Hopper v. Evans, — U.S. —, 72 L.Ed. 2d 367. To require an instruction on the lesser grade of murder under these circumstances, or where there is not “a scintilla of evidence to support the lesser verdicts” would invite jurors “to disregard their oaths and convict a defendant of a lesser offense when the evidence warranted a conviction of first degree murder, inevitably leading to arbitrary results.” Roberts v. Louisiana, 428 U.S. 325, 334-35, 49 L.Ed. 2d 974, 982 (1976).

As our own Court stated in State v. Lampkins, 286 N.C. 497, 504, 212 S.E. 2d 106, 110 (1975), cert. denied 428 U.S. 909 (1976):

When, upon all the evidence, the jury could reasonably find the defendant committed the offense charged in the indictment, but could not reasonably find that (1) he did not commit the offense charged in the indictment and (2) he did commit a lesser offense included therein, it is not error to restrict the jury to a verdict of guilty of the offense charged in the indictment or a verdict of not guilty, thus withholding from their consideration a verdict of guilty of a lesser included offense. Under such circumstances, to instruct the jury that it may find the defendant guilty of a lesser offense included within that charged in the indictment is to invite a compromise verdict whereby the defendant would be found guilty of an offense, which he did not commit, for the sole reason that some of the jurors believe him guilty of the greater offense.

We further note that the language of the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 634, 65 L.Ed. 2d 392, 401 (1980), supports our position that lesser offense instructions should not be given indiscriminately or automatically, but only when warranted by the evidence: “Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve doubts in favor of conviction.” The availability of a third option, that of finding the defendant guilty of a lesser offense, thus reduces the risk of an unwarranted conviction. However, due process requires only that a lesser offense instruction be given “if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Id. at 635, 65 L.Ed. 2d at 401.

We therefore hold that prior to our decision in Harris, the trial judge was required to give an instruction on second degree murder only if the evidence, reasonably construed, tended to show lack of premeditation and deliberation or would permit a jury to rationally find defendant guilty of the lesser offense and acquit him of the greater. Due process requires no more. Our pre-Harris case law supports such a holding, as does the law of other jurisdictions.²

Even so, this Court in State v. Harris, 290 N.C. 718, 228 S.E. 2d 424, appeared to convert a rule requiring the presence of evidence into a more inflexible rule requiring as a matter of law a second degree murder instruction in every case in which the State relied on premeditation and deliberation. It did so by omitting from consideration the following underlined evidentiary language appearing in Perry:

In those cases where the evidence establishes that the killing was with a deadly weapon the presumption goes no further than that the homicide was murder in the second degree, and if the State seeks a conviction of murder in the first degree it has the burden of proving beyond a reasonable doubt that the homicide was committed with deliberation and premeditation. Under such circumstances it is error for the trial judge to fail to submit to the jury the theory of murder in the second degree, since it is the province of the jury to determine if the homicide be murder in the first or in the second degree, that is, whether they, the jury, are satisfied beyond a reasonable doubt, from the evidence, that the homicide was committed with deliberation and premeditation. Whenever there is any evidence or when any inference can be fairly deduced therefrom tending to show a lower grade of murder, it is the duty of the trial judge, under appropriate instructions, to submit that view to the jury.

209 N.C. at 606, 184 S.E. at 546. (Emphasis added.)

The import of the Harris decision was to require a trial judge to instruct on the lesser offense without regard to what the evidence supported. As Justice Huskins admonished in his dissent in State v. Poole, 298 N.C. at 259-60, 258 S.E. 2d at 343, the Harris rule and its subsequent affirmation in State v. Keller, 297 N.C. 674, 256 S.E. 2d 710,

perpetuate[d] an unnecessary refinement in the law.

Submission of a lesser included offense when there is no evidence to support the milder verdict is not required when the indictment charges felony murder, arson, burglary, robbery, rape, larceny, felonious assault, or any other felony whatsoever. In all such cases if the evidence tends to show that the crime charged in the indictment was committed and there is no evidence tending to show commission of a crime of lesser degree, the court correctly refuses to charge on unsupported lesser degrees. The presence of evidence tending to show commission of a crime of lesser degree is the determinative factor.

(Citations omitted.)

As if to address this perception, the Supreme Court of the United States, in Hopper v. Evans, — U.S. —, 72 L.Ed. 2d 367, illustrated the vulnerability of an inflexible Harris-type rule and raised serious doubts as to whether the rule is constitutionally permissible. In Hopper, the defendant had signed a detailed written confession admitting that he had shot the victim in the back during the course of a robbery. He again confessed in detail before a grand jury to the effect that the victim was not the only person he had ever killed, “that he felt no remorse because of that murder, that he would kill again in similar circumstances, and that he intended to return to a life of crime if he was ever freed.” Id. at 370. At his trial, the defendant testified on his own behalf, admitting his intent to commit the murder and once again stating that he would return to a life of crime if acquitted.

Hopper was tried prior to the Supreme Court’s decision in Beck v. Alabama, 447 U.S. 625, 65 L.Ed. 2d 392, under an Alabama law which precluded a jury hearing a capital case from considering lesser included offenses and which was invalidated in Beck. The Supreme Court held that the defendant was not prejudiced by the Alabama preclusion law because his own evidence negated the possibility that a lesser included offense instruction on a non-capital unintentional killing might have been warranted. Stating that the Court of Appeals for the Fifth Circuit had “misread” Beck in awarding defendant a new trial, the Supreme Court explained that:

[O]ur holding [in Beck] was that the jury must be permitted to consider a verdict of guilt of a non-capital offense “in every case” in which “the evidence would have supported such a verdict.”

Id. at ---, 72 L.Ed. 2d at 372-73.

The Court, in Hopper, further stated that “an instruction on a lesser offense in this case would have been impermissible absent evidence supporting a conviction of a lesser offense,” relying on its analysis in Roberts v. Louisiana, 428 U.S. 325, 49 L.Ed. 2d 974. A plurality opinion in Roberts had held that to allow every jury in a capital murder case to return a verdict of guilty of the non-capital crimes of second degree murder and manslaughter was “impermissible” when the evidence warranted only a conviction of first degree murder.

Because the Harris rule is not required or supported by precedent;³ does not manifestly improve the administration or quality of justice; has been emasculated by Hopper; and is suspect of being constitutionally impermissible, we are compelled to overrule Harris, and its progeny in favor of the evidentiary approach consistent with our general rule that “the trial court is not required to charge the jury upon the question of defendant’s guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of defendant’s guilt of such lesser degrees.” Strong’s North Carolina Index, Criminal Law § 115 (3d ed.) and cases cited thereunder.

Admittedly, a charge of first degree murder carries with it the possibility of a sentence of death and must therefore be, and is, subject to additional safeguards. See e.g., G.S. § 15A-2000 (Cum. Supp. 1981). We do not, however, consider the seriousness of the potential sentence as sufficient justification for requiring a judge to instruct on a lesser offense of second degree murder, or for permitting a jury to disregard the evidence and arbitrarily find a defendant guilty of a lesser offense, when there is no evidence to support such an instruction by the court or finding by the jury.

Ill and IV

A murder committed in the perpetration or attempted perpetration of a felony, as enumerated under the statute, shall be deemed murder in the first degree. This Court has held that “[u]nder G.S. 14-17 premeditation and deliberation are not elements of the crime of felony murder.” State v. Wall, 304 N.C. 609, 613, 286 S.E. 2d 68, 71 (1982). Moreover, “when the law and evidence justify the use of the felony-murder rule, then the State is not required to prove premeditation and deliberation, and neither is the Court required to submit to the jury second degree murder or manslaughter unless there is evidence to support it.” Id. It has been further held that the State is not required, prior to trial, to declare whether it will prosecute a first degree murder indictment under a theory of premeditation and deliberation or felony murder. Thus a “murder indictment and a separate indictment charging the accompanying felony, joined for trial, set out sufficient factual information to enable defendant to understand the basis of the state’s cases against him.” State v. Silhan, 302 N.C. 223, 235, 275 S.E. 2d 450, 462 (1981). Nor is it necessary for the State to elect at the close of the evidence which theory of first degree murder to submit to the jury when the evidence is sufficient to establish a prima facie case as to both theories. Id. And, in State v. Norwood, 303 N.C. 473, 279 S.E. 2d 550 (1981), we rejected the argument that the theories of premeditation and deliberation and felony murder were inconsistent. “A murder may be committed after premeditation and deliberation and during the perpetration or attempt to perpetrate a felony. The theories involve different elements, but in no way are they inconsistent.” Id. at 480, 279 S.E. 2d at 554. An interrelationship between the felony and the homicide is a prerequisite to the application of the felony murder doctrine. State v. Bush, 289 N.C. 159, 221 S.E. 2d 333, death sentence vacated 429 U.S. 809 (1976).

Turning now to the facts of the present case, we must determine whether the evidence, as considered by the trial judge at the time of the trial, justified his decision to omit an instruction on second degree murder. Of some significance to our determination is the fact that this defendant was indicted for first degree murder as well as rape and kidnapping, two underlying felonies which could have supported a theory of felony murder. In fact, the circumstances surrounding the murder suggest the conclusion that the murder was committed in the perpetration of a felony as well as with premeditation and deliberation. A jury could surmise that the decision to render the murder victim helpless was to facilitate the sexual assaults on Miss Davis. The evidence was sufficient to establish a prima facie case as to first degree murder on the theory of premeditation and deliberation or felony murder, and the State would have been fully justified in submitting either or both theories to the jury. Had the State relied on the felony-murder theory as well as on a theory of premeditation and deliberation, an instruction on second degree murder would not have been required. See State v. Wall, 304 N.C. 609, 286 S.E. 2d 68. In Wall the defendant was found guilty of murder in the first degree on the theory of felony murder, but was found not guilty of first degree murder on the theory of premeditation and deliberation. This Court held that the defendant was not prejudiced by the court’s failure to charge on involuntary manslaughter.

We emphasize again that although it is for the jury to determine, from the evidence, whether a killing was done with premeditation and deliberation, the mere possibility of a negative finding does not, in every case, assume that defendant could be guilty of a lesser offense. Where the evidence belies anything other than a premeditated and deliberate killing, a jury’s failure to find all the elements to support a verdict of guilty of first degree murder must inevitably lead to the conclusion that the jury disbelieved the State’s evidence and that defendant is not guilty. The determinative factor is what the State’s evidence tends to prove. If the evidence is sufficient to fully satisfy the State’s burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant’s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.

The record before us discloses a brutal and senseless murder committed without justification or excuse. There was evidence of preparation — the victim was bound to facilitate his death. As with any victim of strangulation, death came slowly. To suggest that the murderer did not act with premeditation and deliberation, on the evidence as presented, if believed, is to invite total disregard of the facts.

Defendant’s own position on this issue further illustrates the need for a reevaluation of the Harris rule by placing the issue within the context of a rule of evidence, rather than a rule of law. Arguing in his brief that under the Harris rule, he was entitled to an instruction on second degree murder as a matter of law, defendant states that the court’s failure to so instruct resulted in prejudice per se. He does not argue, nor even suggest, in his brief, that he was in fact prejudiced by the absence of a second degree murder instruction. He offers no argument that had the alleged error not been committed, a different result would have been reached at his trial; that is, that the jury would have acquitted him of first degree murder and found him guilty of second degree murder. See G.S. § 15A-1443(a).

Defendant assigns as error the trial court’s failure to require the jury to find malice, an essential element of murder in the first degree. The trial judge instructed as follows:

First degree murder is the unlawful killing of a human being with malice and with premeditation and deliberation.

For you to find the defendant guilty of murder in the first degree, there are five things that the State must prove: First that the defendant, Andrew Strickland, intentionally, with a rope, strangled James Earl Buckner, that the rope used in this manner was a deadly weapon, and you will consider the manner in which it was used, the nature of the rope and the size and strength of the Defendant Andrew Strickland to that of the victim, Mr. Buckner.

Second, that the death of James Earl Buckner was a natural and probable result of defendant’s act.

The act need not have been the only cause nor the last or the nearest cause; it is sufficient if it concurred with some other cause, acting at the same time, which in combination with it, caused the death of James Earl Buckner. Third, you must find that the defendant Strickland intended to kill James Earl Buckner. Fourth, you must find that the defendant acted with premeditation — that is, that he had formed the intent to kill James Earl Buckner over some period of time, however short this period of time may have been, before he put the rope around his neck and tightened it and strangled him. And finally, you must find that the defendant acted with deliberation, which means that the intent to kill was formed while he was in a cool state of mind and not while under the influence of a suddenly aroused or violent passion.

Malice exists as a matter of law whenever there has been an unlawful and intentional homicide without justification or excuse. State v. Moore, 275 N.C. 198, 166 S.E. 2d 652 (1969). The elements of malice and unlawfulness are implied in an intentional killing with a deadly weapon. State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203, cert. denied (82-5353) (1982); State v. Davis, 305 N.C. 400, 290 S.E. 2d 574. This Court has held that the State is not required to prove malice and unlawfulness unless there is some evidence of their nonexistence. Id. As noted above, the trial judge instructed the jury that in order to find the defendant guilty of murder in the first degree, they had to find that the killing was committed by the intentional use of a deadly weapon. The rope burns around the victim’s neck, coupled with the fact that there were hemorrhages in his eyes and his lungs were filled with fluid, indicated that Mr. Buckner died of strangulation. The rope used to strangle the victim may be considered as a deadly weapon. “A deadly weapon is not one which must kill but one which under the circumstances of its use is likely to cause death or great bodily harm.” State v. Strickland, 290 N.C. 169, 178, 225 S.E. 2d 531, 538 (1976). Except for his plea of duress, which is not a defense to murder, defendant raised no legal justification or excuse at trial. Thus, the presumption of malice arose.

Defendant further contends, however, that his defense of duress, although not a defense to first degree murder, nevertheless raises evidence of lack of malice. In State v. Brock, 305 N.C. 532, 290 S.E. 2d 566 (1982), this Court rejected a similar argument, holding that the defense of duress was not available to a defendant charged with first degree murder and he was therefore not denied his constitutional right to trial by jury upon failure of the trial court to instruct that the presumptions of malice and unlawfulness could be rebutted. Defendant’s evidence that another committed all the acts in perpetration of the murder or that defendant participated under duress “did not raise any issues of self-defense or heat of passion upon sudden provocation.” Id. at 543, 290 S.E. 2d at 574. We further note that the trial judge instructed generally on the defense of duress as negating the element of intent. He did not limit this instruction to the kidnapping or rape charges. Thus, the defendant received the benefit of a duress defense to the murder charge, although erroneously, and was, in fact, provided with the very instruction he now argues he was entitled to.

Defendant next assigns as error the trial judge’s instructions to the jury on his defense of duress. He argues that the instruction did not direct the jury to consider coercion on the kidnapping charges; that it erroneously required the jury to find that he be “placed in such fear as would deprive him of the ability to do a willful act;” that it improperly placed the burden of persuasion on the defendant; and that it limited the defense to a fear for his family’s safety.

The trial judge first summarized the evidence, including a full statement of defendant’s evidence concerning his defense of duress, in part as follows:

That Chance chased a red Chevrolet with four girls in it and followed them for sometime; then they started back and that he, Strickland, asked them to take him home, that he didn’t want to have anything to do with it. That he did not jump out because he feared for his life. That they came on towards Fayetteville and that Chance stopped him from jumping out by putting a pistol on him. That Sisneros also put a pistol on him, which was a twenty-five automatic pistol. That he told them to leave the prostitutes alone, but Chance refused and said they were going to get some tonight and to stay out of his way.

That they went on then to where Buckner and the Davis girl were. That Strickland took Chance’s twenty-two and and (sic) put the gun on them, but that he did so because Sisneros was right behind him pointing a twenty-two or a twenty-five automatic at his back.

Then all went back to the car and they went to Mr. Strickland’s home, arriving there about five or five-thirty; that it was not quite daylight. That Strickland’s wife opened the door and Sisneros and Wilcosky went in and Danny Chance told them to watch Strickland. That he didn’t say anything to his wife about this because Sisneros had a gun on him. That he feared for his wife and that they had made threats about his wife and family.

Following his summary of the evidence, the judge then instructed on the law of kidnapping, first degree murder and first degree rape. He then instructed as follows:

Ladies and Gentlemen, the defendant in this case contends and says that he acted out of fear for the safety of his wife and family. If you find from the evidence, to your satisfaction, that he was placed in such fear as would deprive him of the ability to do a wilful act, that he acted fully under compulsion and fear; then you would not find the element of intent to exist.

As noted earlier, by so concluding his instructions with this statement on the law of duress, the trial judge allowed the jury to consider the duress defense not only as to the kidnapping and rape charges, but also (and erroneously) as a defense to the first degree murder charge. Therefore, the fact that the instruction appeared at the conclusion of the judge’s statements of the law, rather than following the charge as to the law of kidnapping was in this respect favorable to the defendant.

We disagree with the defendant that the trial court imposed upon him a stricter standard in requiring the jury to find “that he was placed in such fear as would deprive him of the ability to do a wilful act” in order to acquit him on the defense of duress. No act done “fully under the compulsion of fear” could be a willful act under this instruction. The jury was required to find that the defendant did not act voluntarily (willfully), but rather in response to coercion based on fear. The instruction, though erroneous, was favorable to the defendant inasmuch as the instruction did not require the jury to find (1) that the defendant’s fear be reasonable or (2) that the defendant was in imminent fear of death or serious bodily harm. See State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976).

We find no merit to defendant’s contention that the instruction on duress improperly placed the burden of persuasion on the defendant. Like the defense of insanity, duress is an affirmative defense “with the laboring oar cast upon the defendant.” State v. Golden, 203 N.C. 440, 441, 166 S.E. 311, 312 (1932). The burden of proving an affirmative defense to the satisfaction of the jury is upon the defendant in a criminal trial. We have so held in numerous cases in which the defendant has raised the defense of insanity and so hold now where the defense raised is that of duress. See State v. Ward, 301 N.C. 469, 272 S.E. 2d 84 (1980); State v. Clark, 301 N.C. 176, 270 S.E. 2d 425 (1980); State v. Franks, 300 N.C. 1, 265 S.E. 2d 177 (1980); State v. Leonard, 296 N.C. 58, 248 S.E. 2d 853 (1978); State v. Hammonds, 290 N.C. 1, 224 S.E. 2d 595 (1976). Nor does placing the burden on a defendant under these circumstances relieve the State of its burden to prove beyond a reasonable doubt each and every element of the crimé charged. State v. Hammonds, 290 N.C. 1, 224 S.E. 2d 595. We do not agree with defendant’s interpretation of the following language in State v. Sherian, 234 N.C. 30, 34, 65 S.E. 2d 331, 333 (1951), which he argues requires the State to rebut coercion beyond a reasonable doubt:

The defendants were entitled to have the court instruct the jury to the effect that if, upon a consideration of all the evidence, it failed to find beyond a reasonable doubt, that the assistance rendered to James Diggs, after he committed the felonious assault upon officer Howell, was rendered with the willful and felonious intent to aid Diggs to escape arrest and punishment, and not under compulsion or through fear of death or great bodily harm, it should return a verdict of not guilty.

We read this language only to require that the State prove beyond a reasonable doubt all the elements of the offense in the face of any defenses raised and proved to the satisfaction of the jury. Our decision on this issue is supported by the language in Patterson v. New York, 432 U.S. 197, 210, 53 L.Ed. 2d 281, 292 (1977):

We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accuséd. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

Finally under this assignment of error the defendant contends that he did not receive the full benefit of an instruction on his defense of duress due to the omission of the words “because of fear for his own life.” In his summary of the evidence, the trial judge had fully and adequately discussed the defendant’s alleged fear for his own life. Evidence at trial tended to negate this aspect of the defendant’s evidence: he did not raise the question of his fear in a statement given to the sheriffs department; Miss Davis testified that the defendant never attempted to help her and that she never saw a gun in Sisneros’s hand; Sisneros testified that the defendant was the only one with a gun. In light of the evidence before the jury and the generally favorable nature of the duress instruction, in addition to the trial judge’s summary of defendant’s evidence, the omission of the words “because of fear for his own life” cannot be viewed of such significance so as to warrant the granting of a new trial to this defendant, if we assume that the jury simply disbelieved defendant’s version of the events that transpired.

The instruction on duress, as given, is not one to which we give our approval. Although defendant’s arguments are fragmentary, we are unable to satisfy ourselves that the jury was sufficiently apprised of the legal implications attaching to the defense. The trial judge, in this regard, merely stated that upon believing defendant’s evidence on duress, the jury “would not find the element of intent to exist.” Defendant sets forth the following suggested instruction, which we agree would have been more appropriate:

There is evidence in this case tending to show that the defendant took part in the kidnapping only because he was threatened with death. The defendant would not be guilty of kidnapping if his actions were caused by a reasonable fear that he would suffer immediate death or serious bodily injury if he did not so act. His assertion that he acted only because of threats of death is in denial that he committed any crime.

We cannot, with certainty, determine whether the jury’s rejection of defendant’s defense of duress was based upon a disbelief of his evidence or its failure to understand that duress was a complete defense to the kidnapping charge. Had the jury understood that duress, if proven, would be a complete defense to the kidnapping charges, the result might reasonably have been different. Thus, we conclude, defendant has met his burden of showing that there is a “reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.” G.S. § 15A-1443(a). Defendant is therefore entitled to a new trial on the kidnapping charges.

Because it may recur upon retrial of the kidnapping charges, we address defendant’s contention that the trial court erred in failing to require the jury to find that he acted “unlawfully” in order to convict him of kidnapping. The trial judge instructed that:

Kidnaping by definition means the unlawful taking and carrying away of a person by force and against his or her will, or the unlawful seizure and detention of a person by force and against her will. That is not to say that the person must be grabbed and physically pulled. It is sufficient force if the force used is enough to put a person in fear of his life or bodily harm unless he complies with the demands of this would-be kidnaper.

Therefore, as to the bill of indictment charging the defendant with the crime of kidnaping James Earl Buckner, I charge you that if you find from the evidence and beyond a reasonable doubt, the burden being upon the State of North Carolina to so convince you, that on the 28th or early morning of the 29th of June, 1970, the defendant Andrew Strickland, by the use of a gun, forcibly abducted James Earl Buckner and removed him from the place where he was to some other place, forcibly and against his will, I say if you find those things from the evidence beyond a reasonable doubt, it will be your duty to find the Defendant Strickland guilty of kidnaping James Earl Buckner, as charged in the bill of indictment.

(Emphasis added.)

As noted by the defendant, the word “unlawful” does not appear in the second portion of the instruction. The trial court did, however, require that the jury find that Mr. Buckner was “forcibly abducted.” “Abduct” is defined by Webster’s New World Dictionary, 2d ed. 2 as “1. to take (a person) away unlawfully and by force as fraud; kidnap.” The word abduct includes the element of unlawfulness required to be found by the jury. Absent a request for special instructions, it was unnecessary for the trial judge to explain or define a word of common usage such as “abduct.” State v. Jones, 300 N.C. 363, 266 S.E. 2d 586 (1980). The judge instructed similarly on the kidnapping charge respecting Miss Davis. We therefore hold that under both instructions, the element of unlawfulness was adequately submitted to the jury.

As his final argument, the defendant contends that the trial court erred in failing to hold a voir dire hearing prior to admitting his statement into evidence for impeachment purposes. Defendant had taken the stand and testified on his own behalf. His testimony was inconsistent in several respects with the statement he made to Sheriff Neal. The statement was read into evidence for impeachment purposes. The defendant made a general objection, requested a voir dire, but did not at any time during trial allege that the statement was the result of coercion or was otherwise involuntary. Judge Bailey relied on Harris v. New York, 401 U.S. 222, 28 L.Ed. 2d 1 (1971), in denying defendant’s request. This Court, in interpreting Harris on an issue substantially similar to the one here raised, stated in State v. Richardson, 295 N.C. 309, 326-27, 245 S.E. 2d 754, 765 (1978):

When a confession is used on rebuttal for impeachment purposes and a defendant specifically challenges the admissibility of the confession on the ground that it was coerced or ‘induced by improper means, ’ a voir dire hearing must be held for the purpose of determining whether the trustworthiness of the confession satisfies this State’s legal standards. If not satisfied that the confession was made under circumstances rendering it trustworthy, ie., not produced by coercion or induced by other improper means, the trial court should bar use of the confession for any purpose.

In the present case the record does not indicate that defendant objected to the impeaching use of his statements and drawings on the ground they were coerced or otherwise induced by improper means. Defendant did not request a voir dire hearing to determine whether the statements and drawings were coerced. Neither defendant’s testimony nor any other evidence suggests that the statements and drawings were coerced or induced by force, threat, fear or promise of reward. Cf. State v. Byrd, 35 N.C. App. 42, 240 S.E. 2d 494 (1978); State v. Langley, 25 N.C. App. 298, 212 S.E. 2d 687 (1975). Under such circumstances it was altogether proper for the trial court to overrule defendant’s general objection to the use of the challenged evidence for impeachment purposes without conducting further voir dire hearings.

We hold, as did this Court in Richardson, that the trial court was not required to hold a voir dire hearing prior to the introduction of defendant’s statement in rebuttal upon failure of the defendant to challenge its admissibility on the ground that it was coerced.

For error in the charge on the kidnapping convictions, defendant is entitled to a new trial.

We find no prejudicial error in defendant’s conviction of murder in the first degree. Because defendant’s life sentence on the murder conviction was to begin at the expiration of the kidnapping sentences, the judgment on the murder conviction must be set aside and the cause remanded for formal entry of a new judgment by a judge of Superior Court, Cumberland County, without the necessity of a hearing or the presence of the defendant. State v. Whaley, 262 N.C. 536, 138 S.E. 2d 138 (1964); State v. Sutton, 244 N.C. 679, 94 S.E. 2d 797 (1956).

Nos. 70CRS19799 and 70CRS19800 (kidnapping) — New trial.

No. 70CRS19801 (murder) — Remanded for entry of judgment.

1 . Murder in the first degree is sometimes defined briefly as murder in the second degree plus premeditation. State v. Benton, 276 N.C. 641, 174 S.E. 2d 793 (1970). If a person is guilty of murder in the first degree, a fortiori, his guilt encompasses murder in the second degree. Manslaughter is a lesser included offense of murder in the second degree. State v. Holcomb, 295 N.C. 608, 247 S.E. 2d 888 (1978). However, the mere fact that the evidence might support a verdict on the lesser crimes does not dictate that the trial judge instruct on the lesser grades. His decision rests on whether the evidence is sufficient to support the charge; that is, whether, in a murder case, the evidence raises a question with respect to premeditation and deliberation or malice, either under the facts or as raised by defendant’s defenses. See State v. Brown, 300 N.C. 731, 268 S.E. 2d 201 (1980); State v. Smith, 294 N.C. 365, 241 S.E. 2d 674 (1978); State v. Jones, 291 N.C. 681, 231 S.E. 2d 252 (1977); State v. Stewart, 292 N.C. 219, 232 S.E. 2d 443 (1977); State v. Redfern, 291 N.C. 319, 230 S.E. 2d 152 (1976).

2 . In State v. Vickers, 129 Ariz. 506, 633 P. 2d 315 (1981), the court rejected defendant’s contention that he was entitled to an instruction on second degree murder, finding that the evidence supported only a premeditated and deliberate killing because defendant had to have “reflected” while tearing bedsheets to form a garrote with which to strangle the victim. In Justus v. Commonwealth, 222 Va. 677, 283 S.E. 2d 905 (1981), cert. denied 71 L.Ed. 2d 693 (1982), it was held that the only real issue before the jury was whether defendant was guilty of capital murder or of first degree murder and that because there was insufficient evidence to support a second degree murder instruction (the evidence must amount to more than a scintilla) the omission was not error.

3 . We take note of the conclusion of the dissenting opinion that “the doctrine of stare decisis must be dead in this jurisdiction,” because this majority opinion “refuses to acknowledge the clear holdings of pr e-Harris decisions of this Court.” On the contrary it is the dissent which misinterprets the pre-Harris decisions of this Court. Ironically, on this issue it appears that history is repeating itself. In State v. Gadberry, 117 N.C. 811, 23 S.E. 477 (1895), a majority of the Court with Avery, J., concurring and Clark, J., and Montgomery, J., dissenting, adopted the position and reasoning as expressed in Harris and its progeny and now argued for so vehemently by the dissent in the case sub judice. Gadberry was decided shortly after the act of 1893 had divided murder into first and second degrees. In that case, the facts tended to show that the deceased was defendant’s sister-in-law and was a girl of twelve or fourteen years. She had been living with the defendant and his wife in Virginia and had come home to visit her parents for Christmas. Armed with a razor, a knife, and a pistol, the defendant had earlier threatened to kill the girl if she refused to return to Virginia with him. In the presence of the girl’s parents, the defendant, on the day of the shooting, accosted the girl and forced her to accompany him, pushing her forward as he walked behind her with the gun at her back. The mother screamed for help “and the prisoner thereupon put the pistol to the child’s back, fired, and ran off into the woods.” The trial judge instructed the jury that if they believed the evidence to be true beyond a reasonable doubt, defendant was guilty of murder in the first degree.

In language more appropriate for quoting by the dissent in the case sub judice, the Court in Gadberry wrote:

It is in vain to argue that the Judge was more competent to fix the degree than the jury, or that the circumstances proved the crime to be murder in the first degree, if murder at all; for the statute is imperative that commits the degree to the jury.

Id. at 816, 28 S.E. at 478.

The Court found error in the trial court’s failure to instruct on second degree murder.

In his dissenting opinion, Justice Clark argued strenuously for the position that this Court adopts today, stating, “[i]n this state of facts there is no element of murder in the second degree or of manslaughter which the Judge could have submitted to the jury. The sole question was whether the facts were true or not.” Id. at 825, 28 S.E. at 481-82. “If these facts constitute murder in the first degree, his Honor committed no error in telling the jury so.” Id. at 824, 23 S.E. at 481.

Justice Montgomery, analogizing to first degree burglary cases, added that a jury cannot be permitted to reach a verdict independent of all evidence, and that “ ‘[t]he power to commute punishment does not reside with the jury.’ ” Id. at 832, 23 S.E. at 484.

It is interesting to note that Justice Avery, who concurred in Gadberry, wrote the majority opinion in State v. Covington, 117 N.C. 834, 23 S.E. 337 (1895), the case immediately following Gadberry in the North Carolina Reports. In Covington, the Court found no error in the trial court’s first degree murder charge to the jury, stating that “[t]he charge is correct if there is no evidence of murder in the second degree or of manslaughter.” Id. at 860, 23 S.E. at 351. The State had presented a witness who testified that the defendant had confessed to him. The defendant’s own words, as spoken to the witness, “signified) a purpose deliberately and premeditately formed in the mind, immediately followed by an act to execute it, — the purpose to shoot the deceased, and the aiming and shooting to carry out the purpose.” Id. at 861, 23 S.E. at 352. The Court commented further that

[t]he confession in this case is not simply an admission of the homicide; for the prisoner not only admits the act of killing with a deadly weapon, but gives a full and detailed account of the manner and the purpose with which it was done. Accepting the account as true, it is impossible to perceive any theory upon which the question of murder in the second degree could have been submitted to the jury .... Where the testimony upon which he relies to establish a homicide with a deadly weapon, in order to raise a presumption of murder in the second degree, not only proves such homicide but has the tendency to prove murder in the first degree, and under no inference fairly deducible therefrom is the prisoner guilty of murder in the second degree or manslaughter, the court should instruct the jury that it is their duty to render a verdict of guilty or not guilty .... (The statute) does not give jurrors (sic) a discretion, when rendering their verdict, to determine of what degree of murder a prisoner is guilty. They must render a verdict according to the evidence, and believing a prisoner guilty beyond a reasonable doubt of murder in the first degree, it is their duty so to find ....

Id. at 863-64, 23 S.E. at 352.

The language and the holding in Covington appear to be in direct conflict with the Court’s earlier decision in Gadberry. In fact, in State v. Spivey, 151 N.C. 676, 65 S.E. 995 (1909), which the dissent maintains supports its position, the Court cited Covington with approval. Concerning Gadberry, the Court wrote, “[w]e do not think that case, upon the evidence, well decided. There was no evidence upon which the judge below could have predicated a charge of murder in the second degree or manslaughter, nor was there any evidence from which the jury could have fairly deduced the crime of murder in the second degree or manslaughter.” Id. at 685, 65 S.E. at 999. Thus, Gadberry was overruled.