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Homicide - What to Do When You or a Loved one is Facing Murder or Manslaughter Charges - Part 1

Have you or someone you care about been charged with murder, manslaughter, or another homicide-related offense? If so, you're in the right place.

North Carolina Attorney Bill Powers has been representing clients charged with murder and other homicide-related offenses his entire career. In this episode, Attorney Powers answers the questions that matter to you when you when you or a loved one is facing a murder or homicide offense.

What's the… Read More.

Modified Transcript of “Homicide - What to Do When You or a Loved One Is Facing Murder or Manslaughter Charges - Part 1” for the Hearing Impaired

Speaker 1: You're listening to Law Talk With Bill Powers, your resource for answers to your most pressing legal questions. Attorney Bill Powers sits down with some of today's leading legal minds to discuss everything from legal issues in legislation, to practice tips and policy. Now here's your host, an MBTA board certified criminal law specialist, former president of The North Carolina Advocates for Justice, and renowned trial lawyer Bill Powers.

Robert Ingalls: Welcome to another episode of Law Talk with attorney Bill Powers. I am Robert Ingalls and I will be your guest host for this episode. Now, sometimes on NC Law Talk we take on some rather light issues, and we have some fun, but in this episode we're going to be dealing with some rather serious issues, and I just kinda wanted to point that out up front. How are you doing today Bill?

Bill Powers: I'm doing well.

Robert Ingalls: Alright. Today we are going to be talking about homicide and the different levels of homicide in North Carolina, what those charges look like, what the ultimate penalties look like, and what some possible defenses are. What are the different homicide charges in North Carolina?

Bill Powers: Well, North Carolina is one of the original colonies, and so we still have kind of a cross application between common law offenses, which you would, under the law of the land you would know it was unlawful killing of another, murder in this sense. Then there are statutory prohibitions, or things that are written in the North Carolina General Assembly statutes that set forth what they are. Most times people are referring to a homicide, a fatality, a death of somebody using terms like murder, manslaughter, involuntary manslaughter, felony death, but there are technical and important differences between each of those, and to give you an example, you hear of murder.

Well, there's first degree murder, there's second degree murder. What's the difference between that and a felonious murder, or death by a vehicle, or something of that nature? There are lots of different levels. Normally, from a hierarchical type of standpoint you've got first degree murder, you've got second degree murder in North Carolina State Court, you have voluntary manslaughter which in some instances is considered a lesser included offenses, in some instances it is not. You've got involuntary manslaughter. You've got certain felony deaths, we commonly see in felony death by a vehicle in court.

Robert Ingalls: What constitutes first degree murder.

Bill Powers: Well, there are specific definitions, but normally the big picture ones, we're looking at are what we'd refer to as premeditation, or deliberation, a higher level of [inaudible 00:02:58], that's the term for the mindset, the evil, meaning laying in wait, more of what you would expect to see in a, maybe a CSI type of episode. But for example, second degree murder may be an instance where there's an allegation of impaired driving, or some particularly dangerous type of driving, or circumstances of driving where your mindset is elevated to the level that it's murder.

It's not first degree murder. Second degree murder is a lower level murder that's still murder. And first degree murder in North Carolina, we are still a capital state, meaning that we have the death penalty, a capital punishment, and the ultimate form of punishment. And you see that as an option with, normally a first degree murder type of charge. Now, there are factors that have to be considered, and a jury has to actually make that determination.

And speaking of big picture, and there are a lot of different permutations and combinations. The statutes are written in such a way to allow different types of activity to fall within different categories, and it's up to the prosecutor, and to some extent jurors to decide what they believe happened, and what is factually and to some extent legally appropriate.

Robert Ingalls: Now, I want to understand the distinction a little bit between first degree and second degree, because one of the ones I think that I saw a lot on movies growing up would be the impassioned killer, where let's say the wife comes home and finds her husband with someone else, and she will grab her gun and kill him in that moment. Then, movies are a terrible way to learn about the law, I think, because they probably don't quite get it right sometimes, but what is that distinction, because sometimes that person, I'll see in the news, will be charged with first degree murder, and then sometimes it'll be second degree murder. What is that distinction there?

Bill Powers: Well, what you described would normally be associated with a voluntary, not involuntary, but voluntary manslaughter, where we don't use the word murder but it's the same thing. You have someone, due to a deliberative, non-accidental act, someone's died. The excuse for it, legal excuse, or defense I guess is a better way of putting it, would be do to the nature and circumstances, the heat of passion, the, "I came home. I saw my spouse with someone else and I was so inflamed with anger and passion that yes, I killed that person, but I didn't plan to do it. I didn't plan to come home."

That's kind of the escape valve, if you will, is the intentionality, where in first degree murder you may have laying in wait waiting, waiting for somebody, or planning something. And second degree murder may be such a reckless disregard for the rights and safety of others that it rises to the level of almost intentionality. I use an example of second degree murder where say I have a weapon and I shoot it into a crowd of people, and you know, it's not a defense to say, "Well, I didn't mean to kill that particular person." The fact of the matter is you meant to point the gun. You meant to pull the trigger, and you had the logical and expected result, these are in terms we use in the court with juries, the logical and expected result of, or a consequence of your action.

That's why sometimes we see driving while impaired, or repetitive driving while impaired cases being charged with second degree murder, although it's not required. It's frankly a little bit scary to see how easy you can be charged in certain driving offenses where, I've seen case law where people turned off the lights, and they've gone on the wrong side of the road, and were driving at crazy speeds, and even though there's no alcohol involved you could technically be charged of second degree murder because the logical, and understandable, and foreseeable consequence is that you could kill somebody.

It's the mind that often times matters between the levels of homicide cases being murder versus voluntary manslaughter, versus involuntary manslaughter which may be that you did something exceptionally reckless or dangerous, but it wasn't to the extent that it fell within voluntary. Now, for example, this is where it gets really complicated, in a DWI related second degree murder or something of that nature, you have second degree murder, but then you're not eligible to argue as a lesser included that voluntary manslaughter.

You actually go from second degree murder down to involuntary manslaughter, or possibly I guess a felony death by a vehicle. It's very, very fact specific. We analyze these cases quite carefully based on that. And the cases that private counsel tend to see are the second degree murder and lower.

Robert Ingalls: Now with these heat of the moment, and your not preplanned killings, is there any time period that would turn that into first degree murder. Let's say the wife walks in, and then she goes back to her car, is there a specific period that would give her the ability to turn that into a planned killing?

Bill Powers: I have seen that before, where there's a period of escalation and deescalation, and duty to retreat, where there's an initial reaction, someone retreats, and they, because of the temporal aspect, the time, the reasonableness of you saying it was heat of passion, evaporates or dissipates. I have not seen on in a marital context. I've seen them in a case with neighbors, where there was a fight, and they started a fist fight. One of the neighbors got a weapon and cut somebody.

Then, even though that was a very serious offense in and of it itself, the person accused had an opportunity to retreat, and reengaged, and so yes, there are, if you've gotten away from the circumstances, then you can't just go back say, "Well, he did x, y, and z, and I'm going to get him back." That actually then does go to premeditation and deliberation where you're not defending yourself, or exercising your normal human reaction due to heat of passion.

Robert Ingalls: Gotcha. So if you were in a fight, left the fight, and came back, that completely changes it.

Bill Powers: Right. We also see this in circumstances where you're in a fight, and then someone brings a knife, and then you bring a gun, where it's not the same level of ... Now, I have seen cases where, and on a national level this makes sense. We've all seen these cases where, "I used a gun because he was on top of me, and it was the force reasonable, and necessary, and prudent for me to defend myself. I had to use that level of deadly force because otherwise I would have died." Think of the Treyvon Martin case down in, I think it was Florida if I remember correctly, where one person was on him and one person wasn't.

I'm not commenting on that verdict, I'm explaining why there are these different types of arguments, and that sometimes that's considered reasonable, and sometimes it's just not, that use of force.

Robert Ingalls: Well, and we talked about, during the assault episode, about the damage a fist can do.

Bill Powers: Right.

Robert Ingalls: If someone is on top of you, and they're relatively large, that fist could be the end of you.

Bill Powers: Right, or we see instances locally where maybe someone's doing more than using fists. Maybe they're smashing their head against a concrete sidewalk, or there's a weapon that ordinarily wouldn't be considered a deadly weapon, but something's happened, or it's been used in a way that it has become a deadly weapon, and you are literally facing death if you don't defend yourself and use that force necessary. By the way, these are pretty rare type of offenses.

When I was in college we used to refer to them as top of the layer cake, meaning that if you think of the number and frequency of criminal offenses as a wedding cake, the base of the wedding cake, the largest, would be lower level misdemeanors, they happen more frequently, and then maybe you have higher level misdemeanors, and then as you got up it gets more and more narrow, where the top of that cake is the smallest, are the very, very small number of these offenses that take place. They're salacious. They get a lot of media attention because of their infrequency, and to some extent their violence.

Most of the murder cases that we see in private practice are the alcohol related, or fights that have escalated, and occasionally we see them with the alleged drug deal that's gone bad, as if there's a drug deal that's gone good in the eyes of the law. But those are were, as a frequency, we tend to see, but this heat of passion, husband and wife thing, doesn't happen very often.

Robert Ingalls: One of the things I want to circle back to here before we move on is, you used the term a couple times, lesser included, a lesser included charge. What is that?

Bill Powers: Well, I'm trying to think of a good example of how to do this, if you think of you go to a cafeteria style meal, and you get a full plate and it's got the meat in three type of deals. If you get three sides it's more expensive than if you get one side. Lesser included in my mind, I think of it in a vertical type of scenario where you've got the highest level offense, and you take away an essential element or factual basis and it goes to a lower level offense. Let's use drugs as an example, 'cause it's an easy way to think about it.

There is trafficking of drugs, there's possession with intent to sell and deliver, there's simple possession felony, and then there may be a lower level misdemeanor. Now, in each instance you may have the lowest level added to the next level, added to the next level, and those add up to the highest level. Anything lower, or not exactly meeting all those points, or primae facia of aspects would be a lesser included offense.

In a possession with intent to sell and deliver cocaine charge you would have the possession of cocaine as a lesser included as a option as opposed to a class I felony, or like a class H felony, or class I felony. There may also be the baggy that was stored in, which would be the drug paraphernalia. There may be a pipe that's used to smoke it, so those other offenses are lesser included offenses.

It happens with murder cases where you've got first degree murder, is second degree a lesser included depends. On a DWI related fatality, second degree murder I've said that voluntary manslaughter is not. By statute it's specifically said it is not a lesser included offense, or a case in that instance may be. That's what I'm referring to, are elements of a case that are added together may amount to the highest level of punishment.

Robert Ingalls: Gotcha. Now, with first degree murder, you said that it's a capital offense, it's the one that would get you perhaps a death sentence, who makes that determination? If you are found guilty of that first degree murder, after that verdict is delivered, when do you find out whether you're going to get a death sentence, and obviously the next one would be life in prison, right?

Bill Powers: Sure. Well, actually there are several steps before hand, even before the jury trial where there are fail safes put in place by the court system. First and foremost a prosecutor would need to make a decision of whether or not they are going to proceed with capital murder, meaning, are they going to proceed under first degree murder non-capital? Are they going to proceed where the option is, we call it LWOP, life without possibility of parole, or are they going to proceed capitally?

If they are going to proceed, say they make an intentionality, there's a designation, "We are proceeding with first degree murder formally," and sometimes we see initial arrests that say first degree murder, but the DA's office, through their charge and documentations, indictments, whatever, make a formal designation. They tell the accused, normally through a lawyer and the court, "We are proceeding with capital murder. If we get a conviction for murder we are seeking the death penalty."

That would trigger how the cases are held in the court system. There are special rights afforded to the accused. There would be an actual hearing where there'd be, it's called a rule. I won't go into number, but it's rule whatever hearing, and then there's a designation of whether it's going capital or non-capital. Then, because more resources are afforded to defense, if you're trying someone for their life you may be entitle to additional investigators, or assistance in preparing a defense. You may have more lawyers.

Normally you'd have two lawyers on a capital type of a defense as opposed to traditionally one in a non-capital. That's not to say that you can't have more than one lawyer, it's just that as a matter of course the court's appointing two.

Robert Ingalls: Is there a specific statute that applies like when they're choosing whether to go capital with that charge or not, or is that a decision that they make in that moment? Is there criteria?

Bill Powers: The answer is both. This is something that personally, this is one of those areas where, and I'm not commenting on whether there should be the death penalty or not, I want to preface that, but I do think that at times there's a little bit too much discretion allowed, one particular person, namely the prosecutor, in making that determination. Now, ultimately it's up to the jury to make a ruling of guilt or not guilt. There may be times where the court, as a matter of law, says that this is not legally sufficient, or not legally appropriate.

In North Carolina I think it would frankly be better if we had a more formalized process as you describe, where there are judges, and prosecutors, and maybe defense lawyers that get together and work together what would normally be considered a capital case versus non-capital. The reason this concerns me is that there are some cases that I've seen designated capital that in another jurisdiction would never be designated as capital, or there's very little chance of it actually going to that route, and this isn't play time when they're talking these type of offenses. You're literally trying to put someone on death row.

Robert Ingalls: Do you think that charging it as capital is ever used as a way to persuade, perhaps, a defendant into maybe accepting a lower charge and pleading guilty?

Bill Powers: Unfortunately yes. Unfortunately yes. I do think there can be overcharge, and in any kind of criminal case. I can't say that ... I mean, we don't see a lot of these, when I say we I mean the system. I don't think there's any nefarious purpose. I think prosecutors, when they do this, really believe it's appropriate, but clearly reasonable minds can differ. But there are times where cases are, what lawyers refer to as being overcharged, where there's just a vast number of cases brought against a person.

If you're creative in your paperwork you can add a bunch of lesser includes. I mean, we see this in a DWI, where there's a DWI, failure to maintain lane control crossing the center line, where there's case registration, failure to carry driver's insurance, not having your license or a registration license, insurance on you, where yes you can technically charge the person, but it's becoming superfluous. It's becoming, to some extent, vindictive.

But I don't want to just blindly point a finger and say this happens every day. Can it happen? Yes. Sure, it does happen, but these cases are such powder kegs of emotion that it kind of depends on the individual circumstance of the case. My experience has been over the years that the vast, vast, vast majority of prosecutors want to do the right thing by the community. I may not always agree with them, but I think their intent, their mindset, is I guess in good faith and well placed.

Robert Ingalls: If you've been charged with that capital and the jury delivers that verdict, is it the jury then that makes the determination on whether the death sentence is handed down? Is that the judge?

Bill Powers: It's a little bit of both, but normally at this level we refer to it as a bifurcated proceeding where the first part of the process is determine guilt or innocence, is the person guilty or innocent of the underlying offense of murder? Then there's a punishment phase for, and this is somewhat unique to capital murder 'cause jurors normally don't get to meet out the punishment for a drug offense, the judge does that, but they actually have to find that it rose to a level of a capital offense, and then ultimately the court is bound as a matter of law to review it and make a determination of whether or not the capital sentence or recommendation as the case may be is appropriate.

In most instances, though, I don't see a court setting aside a verdict on that point. Occasionally, we had a case in Charlotte where, because of discovery issues, or problems in comparing the case, or how things were handled, the court as a matter of law can say, "Well, I'm not going to accept capital murder as a verdict. I'm kicking that particular aspect of that case out because of some procedural error over things." Now that's rare. That's exceptionally rare, but I've seen it happen and it does happen.

Robert Ingalls: Okay. What are the general defenses if you're facing a murder charge. I know there's four different levels, five or six maybe with other included. What are your general defenses?

Bill Powers: Well, I analyze murder cases or homicides in a very linear fashion, linear being, the root word being line. If you think of it as a train where you've got a locomotive, a coal car, box car, box car, box car, caboose. Frankly, now that I think about it, I do that for almost any type of case, it's just my for of analysis, and it goes form a temporal or timing perspective, and then I break the cases up.

There are defenses at times regarding statements, confessions, the nature and the circumstances of a confession, or the encounter of law enforcement, or how that person was arrested. Those are a legal type of defenses. There are times where there's a lot of science, where we see blood splatter. We see, depending on type of weapon, if it's a gun you may see stippling, or powder residues. You may see ballistics. You may see DNA type of evidence on certain type of cases.

You may see carpet or fiber evidence. You may see hair evidence. There's a lot of forensics. I mean, there's a reason there are these TV shows are on. I mean, how many of them are there now? But there's a scientific aspect of defense is, or aspect of certain defenses. I wasn't standing there, or based on the bullet angle this is where I was. And there are a lot of different defenses. Then there are the nature and the circumstances of what got you there in the first place, which would be other legal defenses like self defense, or defense of others, or heat of passion, or what lawyers may refer to as affirmative, meaning that I have to set forth. I'm claiming this as a defense.

Affirmative defense is, I wasn't in my right mind. You don't see, you know the insanity defense, you don't see that much anymore, but you do see heat of passion. You do see affirmative defenses of defense of self and defense of others in court.

Robert Ingalls: Now, I know that some of the people that are going to be coming to this podcast may find themselves in a position where perhaps they're being investigated for homicide of some sort.

Bill Powers: Right.

Robert Ingalls: Maybe they haven't even spoken to the police, but they're heard that maybe they're being investigated. What is their best step at that point?

Homicide - What to Do When You or a Loved one is Facing Murder or Manslaughter Charges - Part 2

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