dissenting.
I respectfully dissent.
I agree with the rule of law that the submission to the jury of second degree murder as a possible verdict, where the evidence tends to support only first degree murder, violates defendant’s federal due process rights. Contrary to the majority’s, view, however, I believe that in this record there is evidence justifying the submission to the jury of the lesser included offense of second degree murder.
The majority states that evidence that the principal committed first degree murder and that the defendant was not present when the murder occurred was uncontradicted. I agree that there is ample evidence to support the principal’s conviction for first degree murder. However, I suggest that while this evidence is characterized by the majority as “uncontradicted,” the evidence is not unequivocal and could also have supported a verdict of second degree murder as to the principal.
Parenthetically, I have carefully reviewed the record and conclude that the evidence is equivocal as to whether the homicide here was committed by “lying in wait.” The significance of that factor, i.e., whether the murder was committed by “lying in wait,” lies in the Supreme Court’s holding that where a homicide is committed by poison, lying in wait, imprisonment, starvation or torture, “premeditation and deliberation is not an element of the crime of first degree murder.” State v. Johnson, 317 N.C. 193, 203, 344 S.E.2d 775, 781 (1986). Here, to support a theory that the murder occurred other than by lying in wait, I rely on Tart’s testimony that Stuffel told him that he (Stuffel) and the victim “had gotten into a fight” and that he (Stuffel) “wished it hadn’t happened.” Defendant testified that based on her revelation to the victim that Stuffel had forced her to have sex with him, the victim had become “very angry and . . . visibly upset” at Stuffel and said that he *540(the victim) “just wished there were some way he could get even with Carl [Stuffel].” Accordingly, there is some evidence to support a theory of prosecution other than first degree murder perpetrated by “lying in wait,” i.e., first degree murder by premeditation and deliberation or second degree murder. I note that the trial court did not charge the jury on the lying in wait theory but charged them on first degree murder by premeditation and deliberation and second degree murder.
The Supreme Court has observed that:
[Although it is for the jury to determine, from the evidence, whether a killing was done with premeditation and deliberation, the mere possibility of a negative finding does not, in every case, assume that defendant could be guilty of a lesser offense. Where the evidence belies anything other than a premeditated and deliberate killing, a jury’s failure to find all the elements to support a verdict of guilty of first degree murder must inevitably lead to the conclusion that the jury disbelieved the State’s evidence and that defendant is not guilty. The determinative factor is what the State’s evidence tends to prove. If the evidence is sufficient to fully satisfy the State’s burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant’s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.
State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 657-58 (1983) (emphasis in original).
From this record, I further conclude that because this case was submitted as a premeditation and deliberation case and there is some evidence, in addition to defendant’s denial, to negate the element of premeditation and deliberation, the trial court properly submitted second degree murder to the jury.
First, at trial co-conspirator Stuffel testified that he was “under the influence of drugs” at the time Dan Arnold was murdered. In response to the State’s question regarding what he did while waiting in the parking lot, Stuffel even admitted that he “smoked mariguana [sic].” Evidence of drug use near the time of a murder has been held to call into question the specific intent needed to *541commit first degree murder. See State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968).
Secondly, the other co-conspirator Tart even testified that he did not know what had happened in Clinton while he was waiting for Stuffel in the car. He stated that he noticed that Stuffel’s T-shirt was off and that there was blood on his forearms and hands. Tart further testified that when he asked Stuffel what had happened, Stuffel said he and Dan had gotten “into a fight.” Stuffel did not elaborate on any details of the fight. Tart also testified that Stuffel said he “wished it hadn’t happened” but did not elaborate. Defendant testified that when she told her husband Dan (the victim) on or about July 6th that Stuffel had forced her to have sex, he (Dan) was “very angry and ... visibly upset.” Defendant testified that Dan had said “that he just wished there was some way he could get even with Carl.” This evidence tends to negate premeditation by Stuffel and Tart. While this testimony tends to support the theory that the victim’s death was an unplanned happening (as opposed to a premeditated event), this testimony is also relevant in determining whether Stuffel had the requisite specific intent to kill after premeditation and deliberation.
Thirdly, there was testimony from friends of defendant stating that defendant did not think Stuffel was the kind of person who could kill her husband and that she did not think that Stuffel had in fact murdered her husband. Inconsistent with the State’s theory of a preplanned, premeditated murder, Michelle Honeycutt, defendant’s friend, testified that before Dan, the victim, left that night to go back to the church, defendant offered to go with him to retrieve her pocketbook. Defendant also told Dan, in Ms. Honeycutt’s presence, that “I don’t have to have [the pocketbook] tonight.” Ms. Honeycutt testified that the victim insisted on retrieving the pocketbook from the church that night. This testimony tends to negate the evidence supporting the State’s original theory of a preplanned killing that had been the subject of premeditation and deliberation.
Finally, I note that Stuffel’s guilty plea to second degree murder was apparently accepted by the court. Under G.S. 15A-1022(c) a trial court “may not accept a plea of guilty . . . without first determining that there is a factual basis for the plea.” The majority’s conclusion that the evidence “indicates a coldly calculated killing planned well in advance and belies anything other than a *542premeditated and deliberate killing” flies in the face of the court’s acceptance of Stuffel’s guilty plea to second degree murder.
While there was undoubtedly ample evidence to support a conviction for first degree murder on either basis (lying in wait or premeditation and deliberation), there was also more than a scintilla of evidence to support a verdict of homicide less than first degree. See State v. Smith, 294 N.C. 365, 380, 241 S.E.2d 674, 683 (1978). The weight and credibility of the evidence is an issue for the jury, not for the court. See State v. Alston, 294 N.C. 577, 591, 243 S.E.2d 354, 364 (1978). Reconciliation of conflicts in testimony is a matter for the trier of fact. State v. Hargrove, 216 N.C. 570, 571, 5 S.E.2d 852, 852-53 (1939).
We note that the trial court stated on the record that it submitted second degree murder as a possible verdict in part because our Supreme Court had “no trouble with the submission of the second degree possibility” in an accessory before the fact case, citing State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987). In Davis, the Supreme Court reversed and remanded the case based on incomplete jury instructions. The trial court here stated that it submitted second degree murder as a possible verdict because it wanted to be “fair” and Stuffel had been allowed to plead guilty to second degree murder for this homicide. The court also stated that it thought the possible second degree verdict was permitted by the evidence. Submission of second degree murder as a possible verdict would have been error if done without regard for whether there was evidence to support the verdict but solely on the basis of the trial court’s notion of “fairness,” based on Stuffel’s being allowed to plead “guilty” to second degree murder. Here “fairness” was just one of the court’s reasons for submitting the lesser offense. The trial court stated unequivocally that he thought the evidence supported the submission of second degree murder.
Considering my conclusions regarding the propriety of submitting the issue of second degree murder to the jury, it is unnecessary to consider the issue of whether the alleged error was prejudicial. I agree with the majority in its disposition of the other assignments of error. However, because there was evidence justifying the submission of the lesser offense to the jury, I find no error with respect to this particular assignment of error. Accordingly, I would vote that there was no prejudicial error in the trial.