State v. Mays

In State v. Mays, 158 N.C. App. 563, 582 S.E.2d 360 (2003), the Court held that jury instructions which require the jury to acquit the defendant of one offense before the jury can consider a lesser included offense violate N.C. Gen. Stat. 15A-1237(e). Mays, 158 N.C. App. at 569, 582 S.E.2d at 364. N.C. Gen. Stat. 15A-1237(e) states that "if there are two or more offenses for which the jury could return a verdict, it may return a verdict with respect to any offense, including a lesser included offense on which the judge charged, to which it agrees." However, Mays also determined instructions which direct the jury to consider "the primary charge first before continuing on to the lesser included offense," without mandating a unanimous acquittal to the first offense are consistent with N.C. Gen. Stat. 15A-1237(e) as well as current pattern jury instructions. Mays, 158 N.C. App. at 574-75, 582 S.E.2d at 367-68.