Issue

First-degree—felony murder—jury instruction on lesser-included offense—no evidentiary support

Summary

In defendant's prosecution for first-degree murder under the felony murder theory (and under no other theory) based on attempted robbery with a dangerous weapon–where the victim was found deceased from a gunshot wound with approximately two hundred dollars of loose cash and a bloodied iPhone on or near his body–the trial court properly denied defendant's request for a jury instruction on second-degree murder as a lesser-included offense, because the evidence of the underlying felony was not in conflict. Defendant's own statements that he planned to sell a cell phone and not rob the victim could not, alone, create a conflict in the evidence; a witness's statement that defendant planned to buy a cell phone, not sell one, did not negate any element of the underlying felony; and the loose cash found near the victim's body did not negate the evidence that defendant attempted to rob the victim with a dangerous weapon.

Summary from the North Carolina Reports digest (official subject index). Read the opinion →