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State v. Walls11/3/1995
h would support a Conclusion by the Judge that he was so intoxicated that he could not form a deliberate and premeditated intent to kill." Mash, 323 N.C. at 346, 372 S.E.2d at 536. It was not error for the trial court to refuse to instruct the jury on voluntary intoxication.
We turn now to defendant's contention that he was entitled to a jury instruction on second-degree murder.
The test 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, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.
State v. Leroux, 26 N.C. 368, 378, 390 S.E.2d 314, 322, cert. denied, 498 U.S. 871, 112 L. Ed. 2d 155, 111 S. Ct. 192 (1990). "Neither Beck v. Alabama nor Schad v. Arizona stands for the proposition that the lesser included offense should be more freely given in capital cases." State v. Skipper, 337 N.C. at 26, 446 S.E.2d at 265. First-degree murder is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991). Second-degree murder is the unlawful killing of another with malice, but without premeditation and deliberation. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979).
In this case, we conclude that each element of first-degree murder, including premeditation and deliberation, was positively supported by the evidence, and that there was no conflicting evidence. The day before Christopher was killed, defendant forced Alice to drive to the boat landing. Once there, defendant grabbed a crying Christopher and swung him out over the water. Only when two fishermen spotted defendant did he put Christopher down, remarking that he would finish what he wanted to do later. The day of the murder, defendant threatened to kill both Alice and Christopher while he physically assaulted them. Defendant drove back to the same boat landing and threw Christopher into the water. Alice pleaded for defendant to help her find the child, but he refused. Then defendant attacked Alice, telling her she was going to join Christopher. Afterward, defendant drove away from the scene to his brother's house. Because evidence of defendant's intoxication was insufficient to support an instruction on voluntary intoxication, we find that other than defendant's denial that he committed the crime, there was no evidence to negate the elements of first-degree murder. See State v. Lambert, 341 N.C. 36, 460 S.E.2d 123 (1995). We conclude, then, in light of the positive evidence proving each element of first-degree murder, it was not error for the trial court to deny defendant's request for an instruction on second-degree murder and to deny submission of this issue to the jury. This assignment of error is overruled.
In another assignment of error, defendant argues that the trial court committed reversible error in failing to intervene ex mero motu and censure the State's closing argument. Defendant alleges that the State's "grossly improper closing argument" infringed upon his rights to a fair trial, due process and freedom from cruel and unusual punishment.
Defendant contends that on two occasions the prosecutor impermissibly alluded to defendant's election not to testify on his own behalf by arguing, "the defendant may try to hide behind that legal conflict of reasonable doubt," and, "Was he going back down there to rescue Chris? Naw. No. The person who could tell what happened down there, you know, he went down there to finish what he'd started. He went down there to finish what he'd started whi
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