Prior to the North Carolina Supreme Court's holding in State v. Strickland, the rule governing second degree murder jury instructions in a first degree murder case was clear. In all murder cases in which the prosecution relied on the elements of premeditation and deliberation to prove that first degree murder had been committed, the trial judge was required to submit the issue of second degree murder to the jury. This rule came from the Court's unanimous decision in State v. Harris. The Court adhered to this rule in several later cases until it heard Strickland in 1983. Apparently motivated by the United States Supreme Court's decision in Hopper v. Evans, the North Carolina Supreme Court reversed its decision in Harris and held that a second degree murder instruction is not mandated in every murder case in which premeditation and deliberation are at issue. As a result of the Court's holding in Strickland, such an instruction is now required only when there is some evidence that the defendant did not act with premeditation and deliberation. If there is no such evidence, the trial judge is to exclude from jury consideration the option of finding the defendant guilty of second degree murder. This note will examine the scope of the rule in general, and in particular, the propriety of its application to the facts in Strickland.
Lisa Boutelle Hardin, Criminal Procedure - Removing the Third Option from the Jury - State v. Strickland, 7 Campbell L. Rev. 89 (1984).