In a follow-up to our summary of State of North Carolina v. Justin Isaiah Bess (COA24-945), in which the North Carolina Court of Appeals looked at the important issue of when a jury should be given an instruction on a lesser included offense, we now review State v. Lesselle Cornelius Spencer (COA25-1063).This case is also an opinion of the North Carolina Court of Appeals that was filed in September of 2026, very close in time to the Bess decision. Like the defendant in Bess, Mr. Spencer was also convicted of first degree murder and on appeal he raised the issue of the trial court’s failure to instruct the jury on second-degree murder. Mr. Spencer raised other issues regarding the instructions to the jury in his appeal however for the purposes of this discussion, we will focus exclusively on the issue pertaining to his request for an instruction on second degree murder.
In April of 2022, Mr. Spencer was living with his girlfriend in her apartment in Pasquotank County. The apartment was close by the girlfriend’s place of employment, Big Lots. Also in that same month, the girlfriend was terminated from that job. On the day of her termination, Mr. Spencer, his girlfriend, and a friend took a short trip to the beach and were back at the apartment within a hours. On the way to the beach, Mr. Spencer purchased liquor and the three of them smoked marijuana. They returned to the apartment at around 8:00pm and 8:30pm. When they returned, the lights were still on at the Big Lots. Mr. Spencer’s girlfriend did not see him for about 45 after they got back to the apartment. When his girlfriend next saw him, Mr. Spencer was putting on a white hoodie and he told her that he was going out to buy beer. He left the apartment sometime between 9:30pm and 10:00pm. He returned to the apartment about 20 minutes after he left.
During the 45 minutes that Mr. Spencer was not seen by his girlfriend, two Big Lots employees were closing the store. As they were walking in the parking lot toward their cars, security footage and witness accounts identified Mr. Spencer confronted one of the employees. Mr. Spencer’s girlfriend would later identify him on the security footage because his posture on the security footage was similar to when he had consumed a lot of alcohol. Words were exchanged between Mr. Spencer and the employee and then Mr. Spencer shot the employee in his chest. The employee was pronounced dead from the gunshot wound at approximately 10:07pm.
On appeal, Mr. Spencer alleged that the trial court committed plain error by refusing to give the jury an instruction on second-degree murder. For an error to be deemed plain error, a defendant must show that a fundamental error occurred at the trial. To show that an error is fundamental, the defendant must show that they were prejudiced by the error. A defendant is prejudiced by an error if the error had a probable impact on the jury’s finding of guilty.
Mr. Spencer argued on appeal that it was plain error for the trial court not to instruct the jury on second-degree murder when the State had presented evidence that he was intoxicated at the time of the shooting. A lesser included instruction is not required when the State’s evidence establishes each element of the charged offense. When viewed in the light most favorable to the defendant, if there is contradictory evidence as to any element, then a lesser included instruction is appropriate.
As in Bess, the Court begins its analysis by noting the legal distinction between first-degree murder and second-degree murder. First-degree murder is the unlawful killing of a human being with malice and premeditation and deliberation. Secon-degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation. If the State’s evidence establishes each and every element of first-degree murder without any contradictory evidence as to any element then the trial court may properly decline to give an instruction on second-degree murder.
The task before Mr. Spencer on appeal is to demonstrate that at the time of the shooting, he was so intoxicated that he was incapable of forming the requisite intent to carry out the shooting with premeditation and deliberation. Here, the record shows that Mr. Spencer took steps to conceal his whereabouts, during the time of the shooting, from his girlfriend. There was evidence also presented at trial that Mr. Spencer had informed his cell mates during his incarceration while awaiting trial, of his intention to ‘kill everybody.” The evidence presented at trial also showed that Mr. Spencer had purchased alcohol about four hours prior to the shooting and smoked marijuana about one to two and one half hours prior to the shooting. When viewed in the light most favorable to Mr. Spencer, the appellate Court was not convinced that the evidence presented at trial was sufficient to negate any element of the charge of first-degree murder. The Court found no plain error as to this argument and there was no plain error with respect to the other arguments that were raised on appeal by Mr. Spencer. The verdict in his case was affirmed.
A defendant’s use of alcohol and/or narcotics to negate an element of a crime is something that practitioners face quite often. The challenge is presenting evidence to sufficient to demonstrate an extraordinarily high level of impairment by an accused. Ironically, where impairment is an element of an offense, the State tends to want to fervently demonstrate that impairment exists. However, where impairment can contradict an element of an offense, the State quickly seeks to minimize the effect that alcohol and narcotics have on the ability to formulate the requisite intent needed to support a criminal charge.
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