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North Carolina v. Porter5/10/1990
ising from the use of the pistol to infer this malice. Thus, argues defendant, the jury could have convicted him of first-degree
murder without ever having found the separate elements of premeditation and deliberation. We disagree.
The judge previously instructed the jury that the element of malice included hatred or ill-will. In stating that the jury could consider "evidence relating to expressed malice" to determine the existence of premeditation and deliberation, the judge stated that threats, the manner of killing, and defendant's declarations were proper for the jury's consideration of premeditation and deliberation. In this case, there was evidence relevant to all three elements. Defendant allegedly stated that he would kill Jeanie before the night was over and that he would shoot her if she played him for a fool. Based on the evidence presented, there was no plain error in the judge's instructions when taken as a whole.
Furthermore, there was no error in permitting the jury to consider evidence of defendant's conduct after the killing. Such conduct included a statement that he had intended to kill Jeanie Brooks. See State v. Chavis, 231 N.C. 307, 311, 56 S.E.2d 678, 681 (1949).
Defendant argues further that the trial court improperly instructed the jury on provocation. Defendant concedes that verbal abuse or suspicions of adultery are not sufficient, of themselves, to reduce a crime from murder to manslaughter. State v. Montague, 298 N.C. 752, 757, 259 S.E.2d 899, 903 (1979) (verbal provocation); State v. Ward, 286 N.C. 304, 313, 210 S.E.2d 407, 413-14 (1974) (adultery), judgment vacated in part, 428 U.S. 903, 49 L. Ed. 2d 1207 (1976). However, defendant argues that such provocation can be sufficient to negate evidence of deliberation and thus reduce a crime from first-degree murder to second-degree murder. See Annot. "Insulting words as provocation of homicide or as reducing the degree thereof," 2 A.L.R.3d 1292, 1308 § 7 (1965 & Cum. Supp. 1989). Assuming, without deciding, that this is a correct statement of the law of this state, we find that it does not apply to this case. Wanting to dance with a person not one's beau does not rise to the level of insult, vilification, or indecent or abusive language that underpins the cases on which defendant relies. Mere jealousy, without more, cannot be sufficient to negate deliberation. See State v. Eaton, 154 S.W.2d 767 (Mo. 1941) (there was no provocation sufficient to negate deliberation though the deceased, who had been keeping company with defendant, refused to have anything more to do with him and later spoke the words "I don't want
to go with you"); see also State v. Ward, 286 N.C. at 313, 210 S.E.2d at 414 (refusing to extend the exculpatory features of crime passionel to the killing of a mistress).
Defendant next takes exception to those portions of the prosecutor's closing argument on guilt that described the elements of premeditation and deliberation. Defendant failed to object at trial.
Our inspection of the prosecutor's argument reveals no distorting statement of the law. The prosecutor stated that deliberation meant a "cold blooded murder" and that it did not include the case where a man comes home and "finds his wife shacked up there with somebody." Such an example offered for the sake of comparison was not so grossly improper as to require the trial court to intervene ex mero motu. State v. Robbins, 319 N.C. 465, 523-24, 356 S.E.2d 27
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