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IN THE SUPREME COURT OF NORTH CAROLINA
No.  210A01
FILED:  20 DECEMBER  2002
STATE OF NORTH CAROLINA
v.
JAMES LEWIS MILLSAPS
Appeal as of right pursuant to N.C.G.S.  §  7A-27(a) from
judgments imposing sentences of death entered by DeRamus, J., on
22 November  2000 in Superior Court, Wilkes County, upon jury
verdicts finding defendant guilty of two counts of first-degree
murder.    Heard in the Supreme Court  11 September  2002.
Roy Cooper, Attorney General, by William B. Crumpler,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Anne M. Gomez,
Assistant Appellate Defender, for defendant-appellant.
PARKER, Justice.
Defendant James Lewis Millsaps was indicted on
31 January  2000 for the first-degree murder of Rhoda Rousseau and
of Lenna Lewis.    He was tried capitally and was found guilty of
first-degree murder on both counts based on premeditation and
deliberation and felony murder of each victim, with the murder of
the other victim as the underlying felony.    Following a capital
sentencing proceeding, the jury recommended that defendant be
sentenced to death for each murder, and the trial court entered
judgment accordingly.
The State’s evidence tended to show that about  9:00
a.m. on  13 January  2000, Lenna Lewis and Rhoda Rousseau went to
the home of their brother, Harold Harris, and his wife,




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Elizabeth, on Camp Joe Harris Road in Wilkes County.    Harold, an
elderly man with a history of debilitating health problems, had
recently been discharged from the Veterans Administration
Hospital and required substantial daily care from his family.
With the help of Harold’s sisters and defendant, Elizabeth tended
to Harold’s daily needs, such as bathing him, feeding him,
transferring him from the bed to his wheelchair, changing his
clothes, and administering his medications.    However, as the
demands of tending to Harold grew more taxing on the family,
tension among family members became more palpable.
When defendant arrived at the Harris home shortly after
the sisters had arrived, he helped move Harold from his bed to a
wheelchair.    Although defendant was Elizabeth’s great-nephew, he
had been raised by Harold and Elizabeth as a son since childhood.
At approximately  10:00 a.m., as members of the family
started cleaning up from breakfast, defendant and Lenna went to
her car for some trash bags.    At the same time, Rhoda’s daughter,
Martenia Haley, who lived near the Harrises, heard Lenna exclaim
in a frightened tone,  “Don’t.    Please don’t.”    Martenia then
heard two gunshots.    Elizabeth also heard a gunshot and went
outside where she observed Lenna lying on the ground.    When
Elizabeth turned Lenna over, blood spewed onto Elizabeth’s
clothes.    Elizabeth began screaming and ran to neighbors’ homes
seeking help.    Martenia arrived at the Harris residence about two
minutes after hearing the gunshots and observed Lenna lying on
the ground in the yard.    Defendant told Martenia that Rhoda was
all right and that he had already called  911.    As defendant stood




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three or four feet away from Martenia, he pointed the handgun at
her and said,  “I ought to shoot you too.”
Martenia’s granddaughter, Kimberly Gibbs, also arrived
at the scene shortly thereafter and was told by Elizabeth to
check on Rhoda.    Kimberly went into the house where she saw
Harold sitting in his wheelchair.    Harold was crying, and he told
Kimberly that Rhoda had been shot and was lying on the other side
of the kitchen counter.    Kimberly then saw Rhoda lying on the
kitchen floor; she was suffering from injuries to her hand and
chest.    The telephone receiver was lying on the kitchen counter.
Kimberly called  911, told the dispatcher to send an ambulance,
and reported that defendant had shot her great-grandmother.    In
the emergency room at Wilkes County Regional Medical Center,
Rhoda was conscious; and she stated that defendant was
responsible for the shooting.    Rhoda’s injuries required that she
be transported to Wake Forest University Baptist Medical Center,
where she died from the gunshot wounds.    An autopsy performed on
21 January  2000 revealed a wound track indicating that the bullet
first entered Rhoda’s right wrist, continued through her wrist,
and then passed through her right breast before lodging in her
left back under the skin.
Saundra Brooks, the first EMT responder at the scene,
determined that Lenna was already dead when she arrived.    An
autopsy was performed on  14 January  2000 and revealed three
bullet wound tracks.    Two bullets entered Lenna’s back on the
left side and exited the front portion of her neck.    The bullet
for the third track entered the left side of the victim’s chest




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near her breast, crossed her body, and lodged under the skin on
her right side.    Lenna’s death resulted from these wounds.    The
State Bureau of Investigation laboratory concluded that the
bullets retrieved from both autopsies were fired from defendant’s
nine-millimeter semiautomatic pistol.
Dr. George Corvin, a forensic psychiatrist, testified
for defendant.    Based on his interviews with and testing of
defendant, Dr. Corvin was of the opinion that defendant suffered
from delusions of a prosecutory nature.    Dr. Corvin testified
that defendant’s psychosis would have grossly impaired his
ability to plan purposefully and intentionally with a full
understanding of the nature and consequences of his acts and that
defendant’s ability to form the specific intent to kill was
absent on that day.
On appeal defendant contends that his constitutional
rights under the Eighth and Fourteenth Amendments to the United
States Constitution; Article I, Sections  19,  23,  24, and  27 of
the North Carolina Constitution; and North Carolina common law
were violated in that the trial court  (i) erred in failing to
submit second-degree murder as a possible verdict to the jury;
(ii) erred in submitting two first-degree murder convictions for
the jury’s consideration at sentencing; and  (iii) erred in
submitting the  (e)(5) aggravating circumstance, see N.C.G.S.  §
15A-2000(e)(5)  (2001)  (that the murder was committed while the
defendant was engaged in the commission of any homicide).
Defendant notes that the testimony of Dr. Corvin supported the
submission of second-degree murder and further notes that the




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trial court stated that if it were charging on premeditation and
deliberation only, it would submit and instruct on the lesser-
included offense of second-degree murder.    Defendant also urges
that as a consequence of the trial court’s error in failing to
submit second-degree murder, the first-degree murder convictions
premised on premeditation and deliberation are invalid.
Accordingly, defendant’s convictions for first-degree murder are
based solely on felony murder; hence, the murder providing the
underlying felony in each case becomes an element of that murder
and merges with that murder conviction, thereby entitling
defendant to a new sentencing hearing at which he is sentenced
for only one first-degree murder conviction based on felony
murder, and the State is precluded from using the other murder
conviction to support the  (e)(5) aggravating circumstance.
The State acknowledges that if the trial court’s
failure to submit second-degree murder was error, then
defendant’s merger analysis under felony murder is correct.
However, the State vigorously contends that the trial court’s
refusal to submit second-degree murder was not error.    The State
further urges that if this Court concludes that the failure to
submit second-degree murder was error, then the remedy should be
that defendant be given a new trial on first-degree premeditated
and deliberate murder only at which the State would again have
the opportunity to prove premeditation and deliberation, which if
found by the jury would enable the State to have the  (e)(5)
aggravating circumstance submitted to the jury during the
sentencing proceeding.




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Based on these contentions, the issues before the Court
as to these assignments of error are  (i) whether the trial court
committed error by failing to submit second-degree murder; and
(ii) if so, what remedy is appropriate.
At the outset we note certain well-settled principles
applicable to first-degree murder.    The crime is first-degree
murder.    Premeditation and deliberation and felony murder are
theories which the State may use, pursuant to N.C.G.S.  §  14-17,
to convict a defendant of first-degree murder.    However, a
defendant is convicted of the crime, not of the theory.    State v.
Thomas,  325 N.C.  583,  593,  386 S.E.2d  555,  561  (1989).    When a
defendant is convicted of felony murder only, the underlying
felony constitutes an element of first-degree murder and merges
into the murder conviction.    State v. Silhan,  302 N.C.  223,  262,
275 S.E.2d  450,  477  (1981), overruled on other grounds by State
v. Sanderson,  346 N.C.  669,  488 S.E.2d  133  (1997).    Consequently,
if a defendant is convicted only of first-degree felony murder,
the underlying felony cannot be used as an aggravating
circumstance at the sentencing proceeding, State v. Cherry,  298
N.C.  86,  113,  257 S.E.2d  551,  567-68  (1979), cert. denied,  446
U.S.  941,  64 L. Ed.  2d  796  (1980); nor if convicted of the
underlying felony can a defendant be sentenced separately for
that felony, State v. Wilson,  345 N.C.  119,  122,  478 S.E.2d  507,
510  (1996).    However, if a defendant is convicted of first-degree
murder on the basis of both premeditation and deliberation and
felony murder, then premeditated and deliberate murder alone
supports the conviction; the underlying felony for felony murder




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can be used as an aggravating circumstance at sentencing, State
v. Silhan,  302 N.C. at  262,  275 S.E.2d at  478  (relying on State
v. Goodman,  298 N.C.  1,  257 S.E.2d  569  (1979)); and the defendant
can receive separate sentences for both the first-degree murder
conviction and the conviction, if any, for the underlying felony
supporting felony murder.    State v. Wilson,  345 N.C. at  122,  478
S.E.2d at  510.
The frequently quoted standard for deciding whether the
trial court must instruct on and submit second-degree murder as a
lesser-included offense of first-degree murder is as follows:
The determinative factor is what the State’s
evidence tends to prove.    If the evidence is
sufficient to fully satisfy the State’s
burden of proving each and every element of
the offense of murder in the first degree,
including premeditation and deliberation, and
there is no evidence to negate these elements
other than defendant’s denial that he
committed the offense, the trial judge should
properly exclude from jury consideration the
possibility of a conviction of second degree
murder.
State v. Strickland,  307 N.C.  274,  293,  298 S.E.2d  645,  658
(1983), overruled in part on other grounds by State v. Johnson,
317 N.C.  193,  344 S.E.2d  775  (1986).    An instruction on a lesser-
included offense must be given only if the evidence would permit
the jury rationally to find defendant guilty of the lesser
offense and to acquit him of the greater.    State v. Conaway,  339
N.C.  487,  514,  453 S.E.2d  824,  841, cert. denied,  516 U.S.  884,
133 L. Ed.  2d  153  (1995).    In State v. Warren, the Court said:
“It is a well established rule that when the
law and evidence justify the use of the
felony-murder rule, then the State is not
required to prove premeditation and
deliberation, and neither is the court




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required to submit to the jury second-degree
murder or manslaughter unless there is
evidence to support it.”
292 N.C.  235,  242,  232 S.E.2d  419,  423  (1977)  (quoting State v.
Swift,  290 N.C.  383,  407,  226 S.E.2d  652,  669  (1976)), quoted in
State v. Wall,  304 N.C.  609,  620,  286 S.E.2d  68,  75  (1982).
The application of this standard appears to have
resulted in divergent lines of cases in the context of felony
murder.    In one group of cases, the Court has simply found that,
applying the applicable evidentiary standard, the evidence did
not support submission of a lesser-included offense.    See, e.g.,
State v. Williams,  343 N.C.  345,  471 S.E.2d  379  (1996), cert.
denied,  519 U.S.  1061,  136 L. Ed.  2d  618  (1997); State v.
Robinson,  342 N.C.  74,  463 S.E.2d  218  (1995), cert. denied,  517
U.S.  1197,  134 L. Ed.  2d  793  (1996); State v. Frye,  341 N.C.  470,
461 S.E.2d  664  (1995), cert. denied,  517 U.S.  1123,  134 L. Ed.  2d
526  (1996); State v. Zuniga,  320 N.C.  233,  357 S.E.2d  898, cert.
denied,  484 U.S.  959,  98 L. Ed.  2d  384  (1987).    Another group of
cases suggests that if any evidence is presented to negate first-
degree murder, then the jury must be instructed on the lesser-
included offenses supported by the evidence.    See, e.g., State v.
Phipps,  331 N.C.  427,  418 S.E.2d  178  (1992); State v. Thomas,  325
N.C.  583,  386 S.E.2d  555; State v. Williams,  284 N.C.  67,  199
S.E.2d  409  (1973).    Yet another group of cases holds or suggests
in dicta that if the evidence supports a conviction based on
felony murder, the failure to instruct on second-degree murder is
not error or not prejudicial error.    See, e.g., State v. Wilson,
354 N.C.  493,  556 S.E.2d  272  (2001); State v. Robinson,  342 N.C.




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74,  463 S.E.2d  218; State v. Quick,  329 N.C.  1,  405 S.E.2d  179
(1991); State v. Vines,  317 N.C.  242,  345 S.E.2d  169  (1986);
State v. Wall,  304 N.C.  609,  286 S.E.2d  68; State v. Covington,
290 N.C.  313,  226 S.E.2d  629  (1976).
We begin our discussion by examining some of these
cases.    In State v. Thomas,  325 N.C.  583,  386 S.E.2d  555, the
defendant was indicted for first-degree murder and was tried on
the basis of felony murder only with the underlying felony being
the discharging of a firearm into an occupied structure in
violation of N.C.G.S.  §  14-34.1.    The Court held that the failure
to instruct on involuntary manslaughter was error.    The Court
stated:
Under North Carolina and federal law a lesser
included offense instruction is required if
the evidence  “would permit a jury rationally
to find  [defendant] guilty of the lesser
offense and acquit him of the greater.”
Strickland,  307 N.C. at  286,  298 S.E.2d at
654, quoting Beck v. Alabama,  447 U.S.  625,
635,  65 L. Ed.  2d  392,  401  (1980).    The test
is whether there  “is the presence, or
absence, of any evidence in the record which
might convince a rational trier of fact to
convict the defendant of a less grievous
offense.”    State v. Wright,  304 N.C.  349,
351,  283 S.E.2d  502,  503  (1981).    Where the
State’s evidence is positive as to each
element of the offense charged and there is
no contradictory evidence relating to any
element, no instruction on a lesser included
offense is required.    State v. Peacock,  313
N.C.  554,  330 S.E.2d  190  (1985).
It is well settled that  “a defendant is
entitled to have all lesser degrees of
offenses supported by the evidence
submitted to the jury as possible
alternative verdicts.” State v. Palmer,
293 N.C.  633,  643-44,  239 S.E.2d  406,
413  (1977).    On the other hand, the
trial court need not submit lesser
included degrees of a crime to the jury




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“when the State’s evidence is positive
as to each and every element of the
crime charged and there is no
conflicting evidence relating to any
element of the charged crime.”
State v. Drumgold,  297 N.C.  267,  271,  254
S.E.2d  531,  533  (1979), quoting State v.
Harvey,  281 N.C.  1,  13-14,  187 S.E.2d  706,
714  (1972)  (emphasis in original).    Such
conflicts may arise from evidence introduced
by the State, State v. Hicks,  241 N.C.  156,
84 S.E.2d  545  (1954), or the defendant.    They
may arise when only the State has introduced
evidence.    Peacock,  313 N.C.  554,  330 S.E.2d
190; Williams,  284 N.C.  67,  199 S.E.2d  409.
State v. Thomas,  325 N.C. at  594,  386 S.E.2d at  561  (alteration
in original).    The dissent acknowledged that the defendant could
have been entitled to have the lesser-included offense submitted
if the first-degree murder charge had been submitted on the basis
of both premeditated and deliberate murder and felony murder.
Id. at  601-02,  605-06,  386 S.E.2d at  565-66,  568  (Mitchell, J.
(later C.J.), dissenting).
In State v. Quick,  329 N.C.  1,  405 S.E.2d  179, the
defendant was found guilty of first-degree murder on the basis of
premeditation and deliberation and felony murder and was also
convicted of robbery with a dangerous weapon.    Following the
jury’s recommendation, the trial court sentenced the defendant to
death for the first-degree murder conviction; the trial court
also arrested judgment on the armed robbery conviction.    On
appeal the defendant contended that he was entitled to a new
trial in that the trial court erred by failing to instruct on
second-degree murder.    Addressing this issue, the Court quoted
the applicable standard from State v. Strickland,  307 N.C.  274,
298 S.E.2d  645; noted that evidence from a State’s witness tended




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to show absence of premeditation and deliberation; held that the
assignment of error was without merit; and found no prejudicial
error in the guilt-innocence phase of the defendant’s trial, but
awarded the defendant a new sentencing hearing for error under
McKoy v. North Carolina,  494 U.S.  433,  108 L. Ed.  2d  369  (1990).
The Court stated,  “‘[W]here the law and the evidence justify the
use of the felony murder rule, the State is not required to prove
premeditation and deliberation  .  .  .                                  .’”    State v. Quick,  329
N.C. at  28,  405 S.E.2d at  196  (quoting State v. Rinck,  303 N.C.
551,  565,  280 S.E.2d  912,  923  (1981))  (second alteration in
original).    The Court then noted that in Quick, as in State v.
Covington,  290 N.C.  313,  226 S.E.2d  629,
[a]ll of the evidence tended to show
that the murder of  [the victim] was
perpetrated during the course of an
armed robbery.    Such a killing is murder
in the first degree and the trial judge
was therefore not required to submit
lesser included offenses to the jury for
its consideration.
[State v. Covington,  290 N.C.] at  346,  226
S.E.2d at  65l.    Stated another way,  “[t]here
is no evidence that decedent was killed other
than in the course of the commission of the
felony” of armed robbery.    State v. Rinck,
303 N.C. at  565,  280 S.E.2d at  923.
State v. Quick,  329 N.C. at  28-29,  405 S.E.2d at  196  (first,
second, and fourth alterations in original).
The next case to address the issue was State v. Phipps,
331 N.C.  427,  418 S.E.2d  178, in which the defendant was
convicted of first-degree murder on the basis of both
premeditation and deliberation and felony murder with robbery
with a dangerous weapon as the underlying felony for which the




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defendant was also convicted.    Upon the jury’s recommendation,
the trial court sentenced the defendant to life imprisonment for
the first-degree murder conviction and also sentenced him for the
robbery with a dangerous weapon conviction.    On appeal this Court
stated that  “the jury could have concluded that defendant killed
the victim with malice but without the premeditation and
deliberation necessary for first-degree murder.    It therefore was
error for the trial court to refuse to instruct on second-degree
murder.”    Id. at  459,  418 S.E.2d at  195.    The Court held,
however, that the defendant was not entitled to a new trial in
that the jury based its verdict on both premeditation and
deliberation and felony murder; and the conviction under the
felony murder rule was without error.    Id.    The Court arrested
judgment on the underlying felony.    The dissent concluded that
the defendant’s evidence was insufficient to negate premeditation
and deliberation.    Id. at  461,  418 S.E.2d at  196-97  (Meyer, J.,
dissenting).
Most recently in State v. Wilson,  354 N.C.  493,  556
S.E.2d  272, the defendant was convicted of two counts of first-
degree murder on the basis of both premeditation and deliberation
and felony murder and was also convicted of robbery with a
firearm and conspiracy to commit robbery with a firearm.    The
jury recommended life imprisonment for the murder convictions;
and the trial court sentenced defendant to two consecutive
sentences of life imprisonment, to forty years’ imprisonment for
the robbery with a firearm conviction, and to ten years’
imprisonment for the conspiracy to commit robbery with a firearm




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conviction.    On defendant’s appeal this Court did not determine
whether the failure to instruct on second-degree murder was in
fact error; but, relying on State v. Quick,  329 N.C.  1,  405
S.E.2d  179, the Court concluded that if it be assumed arguendo
that the evidence was sufficient to permit a jury rationally to
determine that the defendant acted without premeditation and
deliberation, defendant would be entitled to a second-degree
murder instruction  “only if evidence also tended to show that the
murder was not committed in the course of the commission of a
felony.”    State v. Wilson,  354 N.C. at  506,  556 S.E.2d at  281.
After determining that the evidence would not permit a finding
that the murder was not committed in the course of the commission
of a felony, the Court concluded that  “the trial court properly
refused to instruct the jury on second-degree murder as a lesser-
included offense to first-degree murder.”    Id. at  508,  556 S.E.2d
at  282; see also State v. Robinson,  342 N.C.  74,  463 S.E.2d  218
(holding, where the defendant had been sentenced to death, that
the evidence was insufficient to constitute affirmative evidence
tending to negate premeditation and deliberation, but noting,
with citation to State v. Phipps,  331 N.C.  427,  418 S.E.2d  178,
that even assuming arguendo that the evidence was sufficient to
negate premeditation and deliberation, the defendant was not
prejudiced by the trial court’s failure to instruct on second-
degree murder in that the jury also found the defendant guilty of
first-degree murder based on felony murder and the defendant
would not be entitled to a new trial).




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Our examination of the above-cited cases discloses that
the following principles have evolved in our first-degree felony
murder jurisprudence:                                                   (i) If the evidence of the underlying
felony supporting felony murder is in conflict and the evidence
would support a lesser-included offense of first-degree murder,
the trial court must instruct on all lesser-included offenses
supported by the evidence whether the State tries the case on
both premeditation and deliberation and felony murder or only on
felony murder.    State v. Thomas,  325 N.C.  583,  386 S.E.2d  555.
(ii) If the State tries the case on both premeditation and
deliberation and felony murder and the evidence supports not only
first-degree premeditated and deliberate murder but also second-
degree murder, or another lesser offense included within
premeditated and deliberate murder, the trial court must submit
the lesser-included offenses within premeditated and deliberate
murder irrespective of whether all the evidence would support
felony murder.    State v. Phipps,  331 N.C.  427,  418 S.E.2d  178;
State v. Wall,  304 N.C.  609,  286 S.E.2d  68; see also State v.
Vines,  317 N.C.  242,  345 S.E.2d  169  (holding that the failure to
submit second-degree murder and involuntary manslaughter was not
prejudicial error where the trial court submitted premeditation
and deliberation, voluntary manslaughter, and felony murder; and
the jury did not find premeditation and deliberation).                  (iii) If
the evidence as to the underlying felony supporting felony murder
is not in conflict and all the evidence supports felony murder,
the trial court is not required to instruct on the lesser
offenses included within premeditated and deliberate murder if




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the case is submitted on felony murder only.    See State v.
Covington,  290 N.C.  313,  226 S.E.2d  629.
In the present case the State concedes that defendant’s
evidence supported submission of second-degree murder.    However,
relying on State v. Quick,  329 N.C.  1,  405 S.E.2d  179, and State
v. Wilson,  354 N.C.  493,  556 S.E.2d  272, the State argues that,
notwithstanding this evidence, the trial court’s failure to
instruct on second-degree murder was not error in that the
evidence would not permit a rational juror to find that defendant
did not commit felony murder.    The State’s position is that
irrespective of whether the jury found that defendant committed
first-degree premeditated and deliberate murder or second-degree
murder, it would still have found felony murder; and defendant
would thus be guilty of first-degree murder.
The critical issue, however, is not whether the jury
would have found felony murder, but rather whether defendant
adduced any evidence negating premeditation and deliberation; if
so, the trial court must instruct on the lesser-included offenses
supported by the evidence.    See State v. Strickland,  307 N.C. at
293,  298 S.E.2d at  658.    While the State may rely on the felony
murder rule to support a conviction for first-degree murder and
is not required to submit premeditated and deliberate murder to
prove first-degree murder, if the trial court instructs on
premeditated and deliberate murder, it must instruct on all
lesser-included offenses within premeditated and deliberate
murder supported by the evidence.    See State v. Wall,  304 N.C. at
620,  286 S.E.2d at  75.




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In its brief the State emphasizes State v. Wilson,  354
N.C.  493,  556 S.E.2d  272, and argues that State v. Phipps,  331
N.C.  427,  418 S.E.2d  178, is distinguishable on the evidentiary
strength of the felony for felony murder.    However, from our
review of these two cases, we find nothing suggesting that the
evidentiary strength of the felony murder in one is stronger than
in the other.    In Phipps the Court held that  “the jury could have
concluded that defendant killed the victim with malice but
without the premeditation and deliberation necessary for first-
degree murder.    It therefore was error for the trial court to
refuse to instruct on second-degree murder.”    State v. Phipps,
331 N.C. at  459,  418 S.E.2d at  195.    The Court then stated that
the defendant was not entitled to a new trial because  “the jury
based its verdict on both premeditation and deliberation and the
felony murder rule.    Defendant’s first-degree murder conviction
under the felony murder rule is without error and is therefore
upheld.”    Id.    In Phipps no evidence suggested that the murder
was committed other than in the perpetration of robbery with a
dangerous weapon.    Nothing in the opinion suggests that the
defendant even challenged the robbery with a dangerous weapon
conviction.    In Wilson the defendant was attempting to commit
armed robbery at the time of the murder.    The defendant’s
contention was that he had abandoned the plan to commit armed
robbery at the time his codefendant committed the robbery, and
the defendant therefore could not be convicted of the crime.    The
Court noted the evidence demonstrating that the defendant had not




-17-
abandoned the plan and was thus guilty of armed robbery by acting
in concert.
The State does not attempt to distinguish State v.
Phipps,  331 N.C.  427,  418 S.E.2d  178, and State v. Quick,  329
N.C.  1,  405 S.E.2d  179.    Indeed, the two cases do not appear to
be distinguishable.    In both cases the defendant was convicted of
premeditated and deliberate murder and felony murder with robbery
with a dangerous weapon as the underlying felony, and in both
cases the Court concluded that the evidence in the record negated
premeditation and deliberation.    In both cases the Court upheld
the first-degree murder conviction based on felony murder.    In
Phipps the Court held the failure to instruct on second-degree
murder to be error, though not error entitling defendant to a new
trial, and arrested judgment on the robbery with a dangerous
weapon conviction.    In Quick the Court made no determination as
to whether the failure to instruct on second-degree murder was
error but merely held the assignment of error, that defendant was
entitled to a new trial for the trial court’s failure to instruct
on second-degree murder, to be without merit.    In this regard, to
the extent the Court’s statements in Wilson state that the Court
in Quick indicated that the  “trial court properly refused to
instruct on second-degree murder,” State v. Wilson,  354 N.C. at
506,  556 S.E.2d at  281, those statements are disavowed.    Given
the lack of evidence negating premeditation and deliberation in




-18-
Wilson, we do not deem that case to be controlling in the present
case.1
Based on the foregoing, we find merit in defendant’s
argument and hold that, given the evidence in this record, the
trial court erred in failing to instruct on second-degree murder
as a lesser offense included within premeditated and deliberate
murder.    Although a defendant is convicted of the crime of first-
degree murder, not a theory, where the trial court instructs on
both premeditated and deliberate murder and felony murder and
where the evidence is sufficient to support submission of a
lesser offense included within premeditated and deliberate
murder, the trial court must instruct on the lesser-included
offense.    The State cannot have the benefit of a finding of
premeditated and deliberate murder which the jury may or may not
have found had it been properly instructed.    Without a finding of
premeditated and deliberate murder by the jury, defendant could
have been sentenced only for a first-degree felony murder
conviction.    Defendant could not have been sentenced separately
for the underlying felony, State v. Wilson,  345 N.C. at  122,  478
S.E.2d at  510; and the underlying felony could not have been used
as evidence to support an aggravating circumstance, State v.
Cherry,  298 N.C. at  113,  257 S.E.2d at  567-68.    Inasmuch as this
1
In Wilson the defendant testified that he did not consider
running away when the clerk pulled a gun during the robbery
attempt.    Defendant further stated:                                    “[W]henever I saw the gun, I
was going to shoot back.”    Moreover, defendant shot at the clerk,
and after the clerk ducked behind the counter, shot at the clerk
again when the clerk reappeared.    State v. Wilson,  354 N.C. at
501-02,  556 S.E.2d at  279.




-19-
error affected the capital sentencing proceeding including the
submission of the  (e)(5) aggravating circumstance, we further
conclude that the trial court’s error in failing to instruct on
the lesser offenses included within premeditated and deliberate
murder was prejudicial.    See State v. Irwin,  304 N.C.  93,  107,
282 S.E.2d  439,  449  (1981)  (holding that if a reasonable
possibility exists that the erroneous submission of an
aggravating circumstance tipped the scales in the jury’s
determination that the aggravating circumstances were
“sufficiently substantial” to justify imposition of the death
sentence, the test for prejudicial error has been met).
Accordingly, we must now decide the appropriate remedy for this
error.
Defendant contends that his first-degree murder
convictions are validly based only on felony murder and that
under State v. Phipps,  331 N.C.  427,  418 S.E.2d  178, the proper
remedy is for the Court to arrest judgment on one of the murders
and award defendant a new sentencing hearing at which only one
murder conviction would be submitted and the  (e)(5) aggravating
circumstance, that the murder was committed while the defendant
was engaged in the commission of any homicide, could not be
considered.    The State argues that since the evidence was
sufficient to submit premeditated and deliberate murder and since
defendant does not contest his first-degree murder convictions
based on felony murder, the Court should grant a new trial on the
issue of premeditated and deliberate murder only so that if the
new jury finds defendant guilty based on premeditation and




-20-
deliberation, the State can have the  (e)(5) aggravating
circumstance submitted at the sentencing proceeding.    In support
of its position, the State argues that this error is an
instructional error, thereby making this case distinguishable
from State v. Reese,  319 N.C.  110,  353 S.E.2d  352  (1987),
overruled on other grounds by State v. Barnes,  345 N.C.  184,  481
S.E.2d  44, cert. denied,  522 U.S.  876,  139 L. Ed.  2d  134  (1997),
and cert. denied,  523 U.S.  1024,  140 L. Ed.  2d  473  (1998), in
which the Court, holding that the evidence was insufficient to
support submission of premeditated and deliberate murder and that
the underlying felony merged with the murder for purposes of
felony murder and could not be used as an aggravating
circumstance, awarded the defendant a new sentencing hearing.
Although a life case, this Court’s discussion in State
v. Blankenship,  337 N.C.  543,  447 S.E.2d  727  (1994), overruled on
other grounds by State v. Barnes,  345 N.C.  184,  481 S.E.2d  44, is
instructive.    In Blankenship the Court stated:
Ordinarily a trial error committed in
jury instructions would warrant a new trial
on the issue affected by the instructions.
Defendant, however, has been properly
convicted of first-degree murders on a
felony-murder theory.                                                     “Premeditation and
deliberation is one theory by which one may
be convicted of first-degree murder; felony
murder is another such theory.    Criminal
defendants are not convicted or acquitted of
theories; they are convicted or acquitted of
crimes.”    State v. Thomas,  325 N.C.  583,  593,
386 S.E.2d  555,  560-61  (1989).    Because
defendant has been duly convicted of first-
degree murders on a theory unaffected by the
instructional error, we think it unnecessary,
if not a violation of constitutional double
jeopardy, to retry defendant for the same
murders on the theory which was affected by
the instructional error.




-21-
The result is that the two verdicts
against defendant for first-degree murder on
the theory of felony murder are without error
and are left undisturbed.    Because we are
sustaining defendant’s convictions of first-
degree murder only on a felony-murder theory,
with kidnapping as the underlying felony, the
kidnapping convictions merge with the murder
convictions; and defendant may not be
separately sentenced for kidnapping.    State
v. Gardner,  315 N.C.  444,  450-60,  340 S.E.2d
701,  706-12  (1986); State v. Silhan,  302 N.C.
223,  261-62,  275 S.E.2d  450,  477  (1981).
Accordingly, we arrest judgment on
defendant’s two convictions for kidnapping.
State v. Blakenship,  337 N.C. at  563,  447 S.E.2d at  739  (footnote
omitted); cf. State v. Wilson,  345 N.C.  119,  478 S.E.2d  507
(vacating verdicts based on premeditated and deliberate murder
where the trial court did not instruct on acting in concert and
the evidence would not support premeditated and deliberate murder
as to the defendant’s actions alone and arresting judgment on the
underlying felony of robbery with a firearm supporting the
defendant’s convictions based on felony murder).
In Blankenship the Court observed in a footnote that
the defendant did not seek a new trial on the murder charge but
asked that the verdict of guilty based on premeditation and
deliberation be set aside.    State v. Blankenship,  337 N.C. at  563
n.2,  447 S.E.2d at  739 n.2.    Similarly, in this case defendant
does not challenge his convictions based on felony murder but
challenges only the convictions premised on premeditated and
deliberate murder.    Our research discloses no case, and the State
has cited the Court to none, where the defendant has been
convicted of first-degree murder on both theories and this Court
upon a finding of error only in the defendant’s conviction for




-22-
premeditated and deliberate murder has ordered a new trial.    The
Court has consistently upheld the first-degree felony murder
conviction, arrested judgment on the underlying felony, and
either let the life sentence stand or awarded a new sentencing
hearing.    State v. Wilson,  345 N.C.  119,  478 S.E.2d  507; State v.
Blankenship,  337 N.C.  543,  447 S.E.2d  727; State v. Phipps,  331
N.C.  427,  418 S.E.2d  178; State v. Reese,  319 N.C.  110,  353
S.E.2d  352.    On this point we note that in State v. Quick,  329
N.C.  1,  405 S.E.2d  179, the trial court had arrested judgment on
the robbery with a dangerous weapon conviction which was the
underlying felony for felony murder, and the record reflects that
this conviction was not used to support an aggravating
circumstance at sentencing; this Court awarded a new sentencing
hearing based on error under McKoy v. North Carolina,  494 U.S.
433,  108 L. Ed.  2d  369.
Consistent with our prior holdings, we conclude that
defendant’s first-degree murder convictions based on premeditated
and deliberate murder should be vacated.    Defendant has not
challenged his felony murder convictions, and they remain
undisturbed; but for sentencing purposes the felony murder
conviction for the death of Lenna Lewis in case number  00CRS334
merges into defendant’s felony murder conviction for the death of
Rhoda Rousseau in case number  00CRS559; judgment for the felony
murder conviction in case number  00CRS334 is arrested; and
defendant is awarded a new capital sentencing proceeding in case
number  00CRS559.




-23-
Inasmuch as defendant’s convictions for felony murder
are upheld, the Court deems it unnecessary to address defendant’s
remaining assignments of error.
No.  00CRS334, CONVICTION OF FIRST-DEGREE MURDER ON
BASIS OF PREMEDITATION AND DELIBERATION VACATED; NO ERROR IN
CONVICTION OF FIRST-DEGREE MURDER ON BASIS OF FELONY MURDER;
FIRST-DEGREE FELONY MURDER--JUDGMENT ARRESTED.
No.  00CRS559, CONVICTION OF FIRST-DEGREE MURDER ON
BASIS OF PREMEDITATION AND DELIBERATION VACATED; NO ERROR IN
CONVICTION OF FIRST-DEGREE MURDER ON BASIS OF FELONY MURDER;
FIRST-DEGREE FELONY MURDER--JUDGMENT VACATED AND REMANDED FOR NEW
CAPITAL SENTENCING PROCEEDING.

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