State v. Manley

WEBB, Justice.

The defendant first assigns error to the jury instructions. He says the instructions on first-degree murder based on malice, premeditation, and deliberation and first-degree murder based on felony murder were such that the jury could find him guilty of first-degree murder without a unanimous verdict. No objection was made to the charge, and the defendant asks us to consider this assignment of error under the plain error rule. N.C. R. App. P. 10(c)(4).

The court instructed the jury on unanimity as follows:

Now, members of the jury, I will tell you that a verdict is not a verdict until all 12 of you agree unanimously as to what your decision shall be. You may not render a verdict by majority vote.

The court explained the verdict sheet to the jury as follows:

Now, if the jury finds beyond a reasonable doubt that the defendant is guilty of first-degree murder, you have to determine on what basis he was found guilty of first-degree [murder]. Whether it was on the basis of malice, premeditation and deliberation and/or under the first-degree felony murder rule. He can be found guilty on one of these two basis [sic] or both of them. But if he’s found guilty of first-degree murder by you, have the foreperson place an X on the line beside “guilty of first-degree murder,” and then have the foreperson place an X on the line beside which basis. . . . Whatever your unanimous verdict is have the foreperson place an X on the line beside that verdict.

The verdict sheet provided in pertinent part as follows:

We, the jury, return as our unanimous verdict that the defendant, Lorenzo Manley, is:

1. _Guilty of first-degree murder on the basis of:

A. _malice, premeditation, and deliberation

and/or

B. _first-degree felony murder rule;

The jury checked each blank.

The defendant contends that this charge allowed the jury to find him guilty of first-degree murder without unanimously finding that he was guilty based on either malice, premeditation, and deliberation or on felony murder. We do not agree. The court instructed the jurors that they could not reach a verdict until they were unanimous. In instructing the jury on the verdict sheet, the court told it, “Whatever your unanimous verdict is . . . place an X on the line beside that verdict.” The jury placed a check beside both murder based on malice, premeditation, and deliberation and on the felony murder rule, which shows the jury was unanimous on both theories. There was no error in the charge.

The court in this case followed what we have said is the better practice and submitted a verdict sheet which required that the jury specify the theory upon which it convicted the defendant. State v. Clark, 325 N.C. 677, 684, 386 S.E.2d 191, 195 (1989). We note that we have never held it is reversible error not to submit a verdict sheet in a murder case. See State v. Belton, 318 N.C. 141, 347 S.E.2d 755 (1986).

This assignment of error is overruled.

In his second assignment of error, the defendant contends he had ineffective assistance of counsel because his trial counsel did not object to the charge or the verdict sheet submitted. We have held there was no error in the charge or the submission of the verdict sheet. The defendant’s counsel was not ineffective for not objecting to them. This assignment of error is overruled.

NO ERROR.