This session, the General Assembly passed S.L. 2017-94, which creates a rebuttable presumption that certain domestic violence homicides are premeditated and deliberate and therefore constitute first-degree murder. WRAL explains here that the measure is known as Britny’s Law “in memory of Britny Jordan Puryear, a 22-year-old who was shot and killed by her live-in boyfriend, Logan McLean, in their Fuquay-Varina home on Nov. 6, 2014, after a four-year abusive relationship.” The bill raises many questions, which this post attempts to answer.
Summary of the bill. The bill amends the murder statute, G.S. 14-17. It provides that when a murder is committed (1) with malice “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,” and (2) 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,” and (3) the defendant “has previously been convicted of one of [certain enumerated domestic violence] offenses involving the same victim,” then there is a “rebuttable presumption” that the killing is premeditated and deliberate first-degree murder.
Is this a new crime? I don’t think so. One could argue that the bill delineates new elements, and so creates a new crime — or at least a new theory of first-degree murder. But, as noted above, the bill creates a presumption that a murder involving certain facts is “a ‘willful, deliberate, and premeditated killing,’” a term used in subsection (a) of G.S. 14-17, which defines first-degree murder. And the bill provides that a qualifying homicide “shall be deemed to be murder in the first degree, a Class A felony.” So I see the law as establishing an evidentiary presumption that premeditation and deliberation are present when certain other factors are present. A conviction using the presumption is still a conviction of first-degree murder, on a theory of premeditation and deliberation. If this reasoning is correct, one consequence would be that the procedural rules in G.S. 15A-928 regarding the use of a previous conviction to elevate the class of an offense would not apply.
Is the rebuttable presumption constitutional? Or does it impermissibly ease the burden of proof on the state? I’m no expert in this area of law, but there may be an issue here. See generally Francis v. Franklin, 471 U.S. 307 (1985) (stating that “[m]andatory presumptions,” unlike “permissive inferences,” “violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense,” even if rebuttable). But cf. State v. Joyner, 312 N.C. 779 (1985) (noting that “where there is evidence that a defendant has committed a robbery with what appears to the victim to be a firearm or other dangerous weapon and nothing to the contrary appears in evidence, the presumption that the victim’s life was endangered or threatened is mandatory,” yet finding such a presumption constitutional because the presumption will be “unerringly accurate”).
Why does the bill refer to “reckless and wanton” malice? As explained in Jessica Smith, North Carolina Crimes 84 (7th ed. 2012), the law recognizes three kinds of malice:
- Express hatred or spite
- The commission of an inherently dangerous act 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
- A condition of the mind that leads a person intentionally to kill or seriously injure another without justification
Britny’s Law creates a presumption that certain killings involving the second type of malice, which I’ll call “reckless and wanton” malice, are premeditated murders. Consider an example. Dan is convicted of assaulting his girlfriend Vicky. A year later, the two are out celebrating Dan’s birthday with friends. Dan and Vicky are getting along well, but Dan drinks heavily, then drives his car into a tree at a high speed, killing Vicky. Dan likely acted with “reckless and wanton” malice by driving dangerously while severely impaired, and Britny’s Law seems to provide that he may be convicted of first-degree murder.
I am not sure that was the intended result. Could the legislature have intended to focus on cases involving the third type of malice, which is present when one person intentionally kills or seriously injures another? I don’t know. Of course, an intentional killing always involves a reckless and wanton act, so to some extent the second type of malice may subsume the third. Still, the possibility that the presumption might apply to cases like the Dan and Vicky example may call into question the fit between the presumption of premeditation and deliberation and the facts on which that presumption may be based.
Must the state allege the prior convictions in the indictment? I don’t know. If the state uses the short form indictment, perhaps not, because “[s]hort-form murder indictments are sufficient to charge first-degree murder on the basis of any theory set forth in [G.S. 14-17].” State v. Freeman, 202 N.C. App. 740 (2010). That would be consistent with the idea, expressed above, that Britny’s Law creates an evidentiary presumption rather than setting out elements of a new offense. So I lean towards a “no” answer to this question, but I can imagine an argument that Britny’s Law is different from the other provisions concerning first-degree murder in that it depends on specific factual predicates, including a qualifying previous conviction, and that the due process requirement of adequate notice to the defendant can’t be satisfied without a specific allegation concerning those facts.
Does it apply to same-sex relationships? Yes. The victim must be the defendant’s “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.” This is similar to the list of relationships that trigger the 48-hour rule regarding pretrial release in domestic violence cases, see G.S. 15A-534.1, with the addition of the “child in common” provision. Same-sex marriage is the law of the land so the references to spouses and people who live together “as if married” clearly apply equally to same-sex and opposite-sex couples. The reference to “a person with whom the defendant is or has been in a dating relationship as defined in G.S. 50B‑1(b)(6)” is trickier because that provision states that a “personal relationship” includes “persons of the opposite sex who are in a dating relationship or have been in a dating relationship,” which is then further defined in the statute as an ongoing romantic relationship. As far as Britny’s Law goes, though, the reference to “persons of the opposite sex” is a red herring, because Britny’s Law only requires a “dating relationship,” not a “personal relationship,” and so is not specific to opposite-sex couples. I discussed this issue in the pretrial release context here.
May the defendant’s previous domestic violence conviction be an out-of-state conviction? In limited instances, I think so. The law lists six types of qualifying convictions. Items (2) through (6) on the list refer to specific North Carolina criminal offenses, e.g., “cyberstalking as defined in G.S. 14-196.3,” and don’t allow for consideration of similar out-of-state offenses. However, some out-of-state offenses may fall under item (1) on the list: “An act of domestic violence as defined in G.S. 50B-1(a).” G.S. 50B-1(a) defines “domestic violence” in a way that focuses on the perpetrator’s conduct, without regard to whether the perpetrator violated any particular provision of North Carolina law. It includes “[a]ttempting to cause bodily injury, or intentionally causing bodily injury” to a person in a qualifying domestic relationship with the perpetrator. That seems to cover both in-state offenses like simple assault and assault on a female, when committed in a domestic context (and that fact should be reflected on the criminal judgment under G.S. 15A-1382.1), and likely some out-of-state offenses as well. Of course, it may be difficult to determine simply from the judgment whether an out-of-state conviction was based on conduct amounting to domestic violence as defined in G.S. 50B-1(a).
May the defendant’s previous domestic violence conviction be a PJC? I think so. As Jamie explained here, the “clear trend” is that “a PJC is the functional equivalent of a conviction in almost every way that matters.” There are some exceptions to that rule, but without getting too far into the weeds, I doubt that they apply here.
Must the domestic violence conviction take place before the murder, or before the defendant is tried for the murder? For example, suppose that on January 1, Dave threatens to kill Vanessa and is charged with communicating threats. On January 15, Dave makes good on the threat and kills Vanessa. Dave’s court date on the communicating threats charge is February 1, and Dave is convicted based on the testimony of Vanessa’s sister, who heard Dave make the threat. A year later, when Dave is tried for the murder of Vanessa, can the state argue that Dave has been “previously been convicted of” communicating threats against Vanessa? Again, I just don’t know, and it is possible to argue for different answers by emphasizing different aspects of the new law. To the extent that the statute is ambiguous, the rule of lenity may require that the previous conviction have taken place before the murder.
Effective date. The statute takes effect on December 1, 2017, for “offenses committed on or after that date.” I take that to mean murders committed on or after that date, regardless of the date of the previous domestic violence offense.
If readers have thoughts about any of these issues, I would be happy to hear them. The above are my tentative thoughts based on several hours of thinking and talking about this important new law, but I expect it to be debated, and litigated, over the years to come.