State v. Mosley, Murder, and Depraved Heart Malice

Darian Mosley’s sentence for second degree murder was vacated last week because the jury did not specify whether he acted with (1) hatred, ill-will or spite, (2) intentionally and without justification, or (3) a depraved heart when he shot and killed his girlfriend, Amy Parker, in April 2013. The court of appeals held in State v. Mosley that, without knowing the theory of malice that supported the verdict, the trial judge erred in sentencing Mosley as a Class B1 felon. The appellate court remanded the case to the trial court with instructions to sentence Mosley for a Class B2 felony. It also recommended actions for trial courts instructing juries in future murder cases.

Legal background. Before 2012, the offense of second degree murder was uniformly classified as a Class B2 felony. In 2012, the General Assembly amended G.S. 14-17(b), the second degree murder statute, to classify second degree murder as a Class B1 felony in certain circumstances and a Class B2 felony in others. Two types of second degree murder are punishable as Class B2 felonies: (1) murder based on an inherently dangerous act or omission, done in such a reckless or wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief; and (2) murder proximately caused by the unlawful distribution of opium or its derivatives. The first category of Class B2 second degree murder involves a state of mind described in short-hand as “depraved heart malice.” This is the mental state typically associated with charges of murder based on impaired driving, though vehicular homicides are not the only murders that satisfy this definition. Second degree murder premised on a mental state of hatred, ill-will or spite or an intentional killing carried out without justification is, in contrast, classified as a Class B1 felony.

What happened in Mosley. Mosley was indicted for first degree murder for shooting and killing Parker on April 16, 2013 during an argument. Mosley said the shooting was accidental. He explained that he was getting ready to leave Parker’s house with belongings that he had gathered in a plastic bag when he stopped in the doorway of Parker’s bedroom. He held the bag in his right hand and a rifle in his left, with his finger around the trigger. Mosley said that Parker reached toward the gun, he took it away from her, and it went off, shooting her in the abdomen. He said he always carried the rifle around with his finger on the trigger and never used the safety. He also said that he did not know the gun was loaded.

Jury instructions. The trial court instructed the jury on first degree murder and the lesser included offenses of second degree murder, voluntary manslaughter and involuntary manslaughter, using the pattern jury instruction for first degree murder involving a deadly weapon but not involving self-defense.

Verdict and sentence. The jury returned a general verdict finding Mosley guilty of second-degree murder. The trial judge sentenced Mosley to 240-300 months imprisonment, the maximum sentence in the presumptive range for a Class B1 felony.

The appeal. Mosley argued on appeal that the jury’s general verdict did not support the Class B1 sentence and that he was entitled to sentencing at Class B2. Relying on its earlier opinion in State v. Lail, __ N.C. App. ___, 795 S.E.2d 401 (2016), the court of appeals agreed.

State v. Lail.  Lail was convicted of second-degree murder for cutting a man’s throat with a butcher knife after arguing with him and beating him until he was defenseless. Both Lail and the victim were extremely intoxicated at the time of the altercation. The trial judge sentenced Lail as a Class B1 felon, reasoning that there was no evidence in the case to support a theory of depraved-heart malice. Lail argued on appeal that the evidence could have supported a finding that he acted with depraved-heart malice and that since the jury returned only a general verdict, he should have been sentenced as a Class B2 felon.

Though the court of appeals recognized that depraved heart malice can support charges of second degree murder in circumstances that are not limited to vehicular homicide, it agreed with the trial court’s assessment that the evidence in Lail did not support such a theory. Lail was indicted for first-degree murder. The State’s theory of malice was that Lail intentionally cut the victim’s throat with a deadly weapon, thereby causing his death, and there was no just cause, excuse, or justification for his acts. The evidence supported that theory. A witness for the State testified that after beating the victim until he was no longer able to defend himself, Lail went inside, retrieved a butcher knife, got on top of the victim, announced “I’m gonna kill him,” and then cut the victim’s throat two or three times. There was no evidence, in contrast, that Lail “slashed around a knife so recklessly and wantonly that he inadvertently killed someone” or that he “used an imprecise weapon or aimed so indiscriminately so as to manifest a mind utterly without regard for human life and social duty.” Id. at ___; 795 S.E.2d at 409.  Thus, the Lail court concluded, there was no ambiguity in the jury’s general verdict, which was returned after it was instructed only on B1 theories of malice. The jury, though it did not specify, thus found Lail guilty of Class B1 second-degree murder, and he was properly sentenced for that crime.

The Lail court cautioned, however, that a general verdict would be ambiguous for sentencing purposes if the jury was charged on second-degree murder after being presented with evidence that would support a finding of depraved-heart malice. In such a case, a court could not speculate as to which malice theory supported the conviction. To avoid such an outcome, the court of appeals advised trial courts to frame a special verdict requiring the jury to specify the theory of malice supporting the guilty verdict.

Back to Mosley. The trial in Mosley occurred before the court of appeals decided Lail.  As a result, the trial court did not have the benefit of Lail’s guidance when it instructed the jury. Yet Mosley presented the very circumstances that led to Lail’s cautionary advice. There was evidence that the defendant recklessly handled the rifle, holding it with his finger on the trigger and without the safety on as he argued with the victim. To be sure, other evidence supported a conclusion that the defendant intentionally killed the victim with a deadly weapon and was, therefore, guilty of a B1 felony. But because the jury could have found the defendant committed the killing with only depraved-heart malice, the verdict was ambiguous. As a result, the court of appeals held that the verdict had to be construed in the defendant’s favor. The appellate court thus vacated the defendant’s sentence and remanded for resentencing for second degree murder as a Class B2 felony.

Recommendations for future cases. The Mosley court recommended two actions to avoid future ambiguities of this type:

• The second degree murder instructions in pattern instruction 206.13 should be expanded to explain all theories of malice that can support a verdict of second degree murder. (Those theories are set forth in pattern instruction 206.30A.)
• When there is evidence to support more than one theory of malice for second-degree murder, the trial court should present a special verdict form that requires the jury to specify the theory of malice that supports the conviction.

What about Britny’s Law? You may recall that the General Assembly recently amended the murder statute to provide that when a murder is committed with depraved heart malice 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 . . . or a person with whom the defendant shares a child in common,” and the defendant has previously been convicted of a domestic violence offense involving the same victim, there is a “rebuttable presumption” that the killing is premeditated and deliberate and therefore constitutes first-degree murder. (See Jeff’s post for a more complete discussion of Britny’s Law.)

Under this law, which is effective for offenses committed on or after December 1, 2017, the same evidence that supported a conviction for Class B2 second degree murder in Mosley could support conviction for Class A first-degree murder—if the defendant had previously been convicted of a domestic violence offense involving the same victim.

I’m not sure that we yet know enough about how Britney’s Law applies for the pattern jury committee to attempt to define its provisions in the pattern instructions, but the connection it creates between depraved heart malice and premeditation and deliberate action may ultimately require explaining to the jury.