State v. LailÂ, 251 N.C. App. 463

Background

Victim Brian Jones was found dead with multiple neck stab wounds; cause of death was blood loss from cuts to the neck. Defendant Avery Lail was tried for first-degree murder; the State proceeded primarily on a deadly-weapon implied-malice theory (butcher knife).
Witness Mark Huntley testified that he saw Lail stab Jones repeatedly in the neck with a butcher knife; Lail’s testimony blamed Huntley for the stabbing. Joyce Rick corroborated portions of the timeline but did not witness the stabbing.
Trial court instructed the jury on express malice and deadly-weapon implied malice (theories that support B1 punishment under amended statute) but did not instruct on depraved-heart (B2) malice. The jury returned a general verdict: guilty of second-degree murder.
After conviction, sentencing raised whether Lail should be punished as a Class B1 or B2 felon under the 2012 amendment to N.C. Gen. Stat. § 14-17(b), which makes second-degree murder generally B1 but B2 if depraved-heart malice (or certain drug-distribution deaths) is proven.
The trial judge, over defense objection, sentenced Lail as a Class B1 felon, finding no evidence supported depraved-heart malice. Lail appealed, arguing the general verdict was ambiguous and B2 sentencing was required unless the jury expressly excluded depraved-heart malice.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Lail)	Held
Whether amended § 14-17(b) requires the jury to specify whether depraved-heart malice supported a second-degree murder verdict for sentencing	The verdict may be read, given the evidence and instructions, to have rejected depraved-heart malice; § 14-17(b) does not always require jury specification	The amendment requires the jury to specify whether depraved-heart malice supported the verdict; a general verdict is ambiguous and authorizes only B2 sentencing	The court held § 14-17(b) does not always require jury specification; when no evidence supports depraved-heart malice a general verdict may be interpreted to authorize B1 sentencing.
Whether the evidence at trial could have supported a finding of depraved-heart malice (B2)	Evidence and jury instructions only supported express and deadly-weapon implied malice (B1); no basis for depraved-heart instruction	Evidence of intoxication, lack of prior animosity, and use of a deadly weapon could support depraved-heart malice, making the general verdict ambiguous	The court held there was no evidence warranting a depraved-heart instruction; the repeated targeted neck cuts supported intentional deadly-weapon malice (B1), not depraved-heart malice (B2).
If both B1 and B2 theories are presented, what procedural step should courts take for sentencing clarity?	Not explicitly contested; State argued clarity existed here	Trial court must have the jury specify the malice theory to avoid ambiguous general verdicts and Blakely error	The court held that when both depraved-heart (B2) and B1 theories are fairly presented, trial courts should use a special verdict requiring the jury to specify which malice theory supported conviction.

Key Cases Cited

Blakely v. Washington, 542 U.S. 296 (2004) (judge may not impose punishment beyond what the jury's verdict authorizes)
State v. Coble, 351 N.C. 448 (2000) (describes the three recognized malice theories)
State v. Reynolds, 307 N.C. 184 (1982) (early formulation of malice definitions)
State v. Rich, 351 N.C. 386 (2000) (depraved-heart malice upheld in drunk-driving homicide)
State v. Lilliston, 141 N.C. 650 (1906) (depraved-heart malice where reckless use of firearms in crowded place caused death)
State v. Silhan, 302 N.C. 223 (1981) (reviewing whether sentence was authorized by general verdict when multiple theories could support conviction)
State v. Blackwell, 361 N.C. 41 (2006) (encourages special verdicts to prevent Blakely error)
State v. Goodman, 298 N.C. 1 (1979) (general verdicts ambiguous when multiple theories are possible and the jury does not specify)