An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1334
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Filed: 6 May 2003


         v.                        Halifax County
                                No. 97 CRS 3533

    Appeal by defendant from judgment entered 5 August 2002 by Judge Dwight L. Cranford in Halifax County Superior Court. Heard in the Court of Appeals 14 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for defendant-appellant.

    MARTIN, Judge.

    Defendant was charged with murder pursuant to G.S. § 14-17. The trial court submitted possible verdicts of guilty of first degree murder, guilty of second degree murder, guilty of voluntary manslaughter, or not guilty. A jury found defendant guilty of first degree murder. Defendant appealed to this Court. A divided panel held there was insufficient evidence of premeditation to support defendant's conviction for first degree murder. State v. Williams, 144 N.C. App. 526, 548 S.E.2d 802 (2001). Because “the jury necessarily found all the elements of second degree murder were met” by finding defendant guilty of first degree murder, this Court remanded the case to the superior court for sentencing andentry of judgment finding defendant guilty of second degree murder. Id. at 531, 548 S.E.2d 806. Our Supreme Court affirmed the majority's opinion in State v. Williams, 355 N.C. 272, 559 S.E.2d 787 (2002).
    At the resentencing hearing, defendant moved to dismiss on the grounds of double jeopardy. Defendant argued, relying on Hartman v. Lee, 283 F.3d 190 (2002), cert. denied, ___ U.S. ___, 154 L. Ed. 2d 789 (2003), that this Court's determination that there was insufficient evidence to support his conviction for first degree murder acquitted him of the offense of murder, and therefore, prohibited the imposition of judgment against him for second degree murder. The trial court denied defendant's motion and sentenced defendant to 189-236 months imprisonment for second degree murder. Defendant appeals.
    Defendant's sole argument on appeal is that his sentence on the charge of second degree murder violates the double jeopardy provisions of the Federal Constitution and the Constitution of North Carolina. Defendant argues that this Court's opinion reversing his first degree murder conviction due to insufficient evidence of premeditation and deliberation acquitted him of all degrees of common law murder. Therefore, defendant concludes, principles of double jeopardy prevent the trial court from resentencing him to second degree murder. We reject defendant's arguments.
    Defendant, as he did in the trial court, relies on Hartman v. Lee. In Hartman, the Fourth Circuit held that North Carolina's“short-form indictment that alleges the elements of common law murder is sufficient to satisfy the demands of the Sixth and Fourteenth Amendments.” Id. at 199. In so holding, the court noted that “under North Carolina law, there is only one common law crime of murder, which by statute is divided into two degrees.” Id. at 198-99. Defendant asks this Court to apply the Fourth Circuit's rationale to the extent that this Court's reversal of defendant's first degree murder conviction would operate as a double jeopardy bar against entering judgment against him for any degree of murder, including second-degree. We decline to do so.
    The Double Jeopardy Clause prohibits a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense in certain situations. State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986). None of those events occurred here. Defendant was indicted for murder under G.S. § 14-17, which divides murder into two degrees. First degree murder is the "unlawful killing of a human being with malice, premeditation, and deliberation." State v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995). Second degree murder, however, is the unlawful killing of another human being, with malice, but without premeditation and deliberation. State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000).     At defendant's trial, the verdict form submitted to the jury required the jury to agree on one of the four verdicts -- guilty of first degree murder, or guilty of second degree murder, voluntary manslaughter or not guilty. The jury's verdict finding him guiltyof first degree murder was not an implied acquittal of the charge of second degree murder; to retry or resentence defendant for second-degree murder would not place him twice in jeopardy. Rather, the jury verdict finding defendant guilty of first degree murder showed that the jury found defendant unlawfully killed another human being with malice and with premeditation and deliberation. Contrary to defendant's contention, this Court's determination that there was insufficient evidence to support the finding of premeditation and deliberation does not negate the jury finding that defendant unlawfully killed another human being with malice, the elements of second degree murder. Therefore, principles of double jeopardy do not apply and this Court properly remanded defendant's case for resentencing for second degree murder. This assignment of error is overruled.
    No error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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