## Facts

- Ervin Mercer, a U.S. Army servicemember, married Myrtle R. Mercer in 1965; she later lived in North Carolina with Ida Mae Dunn and Dunn’s five-year-old son, Jeffrey Lane Dunn.
- After marital difficulties, Myrtle told Mercer she wanted her freedom and refused to see him or let him stay when he took leave to attempt reconciliation.
- Mercer retrieved a .38 pistol he had previously given Myrtle.
- On September 14, 1967, after drinking alcohol, Mercer went to the residence, shot the door twice, forced entry, and fired multiple shots, killing Myrtle, Ida, and Jeffrey.
- At trial, Mercer presented evidence and testified that he was unconscious or not mentally present during the shootings.
- The trial court instructed that unconsciousness could be considered only on premeditation and deliberation (first-degree murder elements), not as a complete defense.
- The State introduced multiple graphic photographs of the victims.

## Issues

1. Whether the jury charge improperly suggested that proof of an intentional killing with a deadly weapon establishes “murder in the second degree at least,” thereby misstating the malice presumptions and confusing the jury regarding mitigation, justification, or excuse.
2. Whether the trial court erred by limiting the jury’s consideration of evidence of unconsciousness to premeditation and deliberation rather than permitting it as a complete defense to homicide.
3. Whether admitting repetitive, gruesome photographs with minimal probative value was unfairly prejudicial.

## Decision

- The Supreme Court of North Carolina reversed the judgments and ordered a new trial.
- The court held the “murder in the second degree at least” instruction was inaccurate and potentially misleading in explaining presumptions and the jury’s consideration of defenses.
- The court held it was error to restrict unconsciousness to the first-degree murder inquiry; if supported by the evidence and found by the jury, unconsciousness could negate criminal responsibility for any degree of homicide.
- The court held admission of certain graphic photographs was improper where their slight probative value was outweighed by their tendency to inflame the jury.

## Legal Principles

- When the State proves beyond a reasonable doubt that a defendant intentionally used a deadly weapon and death proximately resulted, presumptions arise that the killing was unlawful and done with malice; “nothing else appearing,” the offense is second-degree murder.
- Jury instructions must state the deadly-weapon presumptions with careful qualification and must not compress the doctrine into language that suggests an automatic minimum verdict or obscures the jury’s duty to consider evidence of provocation, justification, or excuse.
- Evidence of unconsciousness at the time of the act, if believed, may constitute a complete defense by negating the voluntary act or required mental state, and the jury must be instructed accordingly when supported by the evidence.
- Photographs may be admitted to illustrate relevant facts, but repetitive or especially gruesome images with little additional probative value should be excluded when their primary effect is unfair prejudice.

## Conclusion

The court granted a new trial because the jury charge misstated and confused the deadly-weapon malice presumptions, improperly limited a supported unconsciousness defense, and allowed inflammatory photographs whose prejudicial effect outweighed their evidentiary value.


State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (N.C. 1969)