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N.C. Supreme Court: Hiring and Paying a Hit Man Not Overt Act Necessary for Attempted Murder Charge

by Douglas Ankney

The Supreme Court of North Caro­lina ruled that hiring an undercover officer posing as a hit man to kill another person does not satisfy the element of committing “an overt act” toward completion of the offense of attempted murder.

On February 3, 2015, Darrell Lee Melton met with an undercover officer who played the role of a killer-for-hire. Melton was involved in an ongoing child custody dispute with his former wife. After showing the officer $2,500, Melton provided his former wife’s name, address, and cellphone number, along with some photographs of her. He gave the officer the name of his daughter’s elementary school, the scheduled drop-off times, and a description of his former wife’s car, informing the officer she was always alone after dropping off the daughter. When the officer asked Melton where he wanted his former wife’s dead body, Melton’s only concern was that “there’s no chance that I will answer questions or be involved....” Melton exited the officer’s car and was arrested while returning to his own. 

Melton was indicted on charges of attempted murder and solicitation of murder. During the trial, Melton moved to have the attempted murder charge dismissed. The motion was denied. Melton was convicted of both charges, and he appealed. The Court of Appeals affirmed. The North Carolina Supreme Court then granted him further review.

The Supreme Court first determined that the Court of Appeals’ decision had “inadequate support” because it relied “upon cases from other jurisdictions, all of which have statutory frameworks different from our own.” In North Carolina, “[t]he elements of an attempt to commit any crime are: (1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation but (3) falls short of the completed offense.” (quoting State v. Miller, 477 S.E.2d 915 (N.C. 1996)). The Court explained that the rule in North Carolina for determining what constitutes an overt act developed from common law as follows: “In order to constitute an attempt, it is essential that the defendant, with the intent of committing the particular crime, should have done some overt act adapted to, approximating, and in the ordinary and likely course of things would result in the commission thereof.... It must not be merely preparatory.... [I]t must ... stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.” Id.

For guidance, the Court turned to State v. Addor, 110 S.E 650 (N.C. 1922), a case in which the defendants had in their possession all the ingredients to make liquor, and who had told the sheriff they intended to make liquor, but had no means to do so because they lacked a still. It was decided there was no “attempt” to make liquor because the defendants’ actions were preparatory, and no overt act was taken toward completion of the offense. 

The Court reasoned that Melton’s case was like Addor because Melton, in “providing details to the supposed hired killer to carry out the killing and giving him an initial payment, [had] certainly ‘devised or arranged the means or measures necessary for the commission of the offense.’” But planning the killing and making payment to an undercover officer “would not, without additional conduct, inexorably result in the commission of the offense in the ‘ordinary and likely course of things.’” Thus, the Court concluded that the act of “hiring and paying a hired killer … do not satisfy our requirement of overt acts necessary to prove attempt.” 

Accordingly, because Melton did not make an overt act toward completion of the offense, the Court remanded to the Court of Appeals for further remand to the trial court with instructions to vacate Melton’s conviction for attempted murder and for resentencing consistent with the Court’s opinion. See: State v. Melton, 821 S.E.2d 424 (N.C. 2018). 

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