¶1dissenting.
¶2I write separately to express my concerns on the issue of whether defendant was deprived of adequate notice for the underlying felony alleged in this felony murder case. Defendant framed this issue in two parts: first, that the trial court erred in denying defendant’s motion to quash the indictment for failure to allege the particular felony upon which the charge of felony murder was based; and second, that defendant’s request for a bill of particulars should have been allowed. *431The majority concludes that the indictment was proper and that the denial of defendant’s request for a bill of particulars was not error. I disagree.
¶3From the outset, I note that this issue is distinct and separate from the issue of whether the short-form indictment is an adequate instrument for charging an accused with homicide. I recognize, and concur with, the long-held view of this Court that the short-form indictment remains a viable homicide-charging instrument, and I raise no arguments here against its continuing vitality. My concerns, rather, are focused on the specific problems endemic to charging an accused with felony murder, a unique offense complicated by the fact that it requires proof of one crime in order to establish proof of another.
¶4The verdict sheet in this case reveals that defendant was convicted of first-degree murder, and though the jury had the option of premising its verdict on the basis of premeditation and deliberation, it declined to do so. Instead, its verdict was based on the fact that the killing was committed “in the perpetration of a felony,” and that the felony committed was “attempted rape.” Thus, this case proceeded to this Court on appeal from the jury’s verdict finding defendant guilty of what is commonly referred to as felony murder and the imposition of a death sentence.
¶5When a defendant faces a murder charge premised on a killing that occurs during the commission of a violent felony, see N.C.G.S. § 14-17 (2003), the prosecution must prove at trial two things: (1) that defendant’s participation in the underlying crime satisfies the statutory or common law elements of the offense, and (2) that the victim died during the commission of, or as a consequence of, the underlying crime.
¶6Of course, self-evident circumstances tend to demonstrate the second requirement; there would be no capital murder charge to begin with if someone had not died during the commission of, or as a consequence of, the violent felony at issue. For example, the facts of this case amply show that the victim died a tragically violent death in the weight room of her apartment complex. The relevant question at trial, therefore, was whether defendant’s actions led to her death and, if so, did such actions constitute the commission of a violent crime that qualifies as an underlying felony for purposes of felony murder. In essence, prosecutions in felony murder cases boil down to proving that defendant committed the underlying crime. The practical effect *432of such proof — as found by a jury by the standard of beyond a reasonable doubt — translates into the following: defendant committed the underlying crime and a death ensued; therefore, defendant committed felony murder. Put another way, the outcome of a felony murder trial, when stripped to its core, hinges on whether or not defendant committed the underlying offense. If the jury determines he did not (commit the underlying crime), it simultaneously exonerates him of the felony murder charge.
¶7In my view, if a defendant’s conviction for felony murder hinges on proving whether or not he committed the underlying offense, then constitutional notice requirements demand that he be afforded notice of the crime he must defend against. See Hodgson v. Vermont, 168 U.S. 262, 269, 42 L. Ed. 461, 463 (1897) (holding that “in all criminal prosecutions the accused must be informed of the nature and cause of the accusation against him; that in no case can there be, in criminal proceedings, due process of law where the accused is not thus informed, and that the information which he is to receive is that which will acquaint him with the essential particulars of the offence, so that he may appear in court prepared to meet every feature of the accusation against him”); see also N.C. Const. Art. I, § 23 (“In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation . ...”); N.C.G.S. § 15A-924(a)(5) (2003) (criminal pleadings must contain a “plain and concise factual statement . . . with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation”). Thus, if the State pursues a felony murder charge against a defendant, it would appear that the State is obligated to somehow inform the defendant of the specific underlying felony it aims to prove at trial. The practical implications of this specific information go to the heart of a defendant’s ability to prepare for trial and to defend himself through examination of witnesses, the production of evidence, and argument to the jury.
¶8The majority first concludes that the indictment at issue was sufficient, relying on our prior holdings dealing with short-form indictments. The majority then explains that case law has also established that the State neéd not choose between “theories” of its case prior to trial. In its view, defendant was properly denied his request for the State to identify the crime he would defend against at trial because the State is not required to reveal its “theory” of the case before trial. Thus, according to the majority, the State’s “theory” translates into the identity of the actual crime alleged. In my view, *433the State’s “theory” of a case — the whats, hows, and whys of a criminal offense — is not synonymous with identifying the particular offense alleged. The two are separate and distinct entities. If, as the majority asserts, the State’s “theory” of the case is indeed commensurate with identifying the specific crime at issue, and the State is not required to reveal its “theory” pre-trial, how could an indictment requirement exist for any crime?
¶9This Court has yet to address directly the issue of what constitutes adequate notice of the underlying felony charge as it relates to a felony murder prosecution. One obvious solution would be to require the State to secure a separate indictment for the underlying offense. However, a review of felony murder cases over the past thirty years reveals that few such prosecutions have included such separate indictments. Although this Court at one point suggested, without elaboration, that separate indictments were unnecessary, see State v. Carey, 288 N.C. 254, 274, 218 S.E.2d 387, 4Ó0 (1975) (“[i]t seems to us that the better practice . . . would be that the' solicitor should not secure a separate indictment for the felony”), death sentence vacated, 428 U.S. 904, 49 L. Ed. 2d 1209 (1976), I note that it did so amid dicta surrounding the issue of arresting judgments, id. The Court in Careydid not address the separate indictment issue in the context of providing notice to the defendant of the charges against him, nor did it include any explanation as to why it felt a single indictment — for felony murder — was “the better practice.”
¶10I note that the Court in Carey, when considering the issue of separate indictments, may not have concerned itself with notice requirements since existing law at the time had affirmatively declared that a felony-murder defendant who desires more definite information concerning the underlying crime “ha[s] the right to request a bill of particulars.” State v. Crawford, 260 N.C. 548, 556, 133 S.E.2d 232, 238 (1963) (quoting State v. Mays, 225 N.C. 486, 489, 35 S.E.2d 494, 496 (1945)). However, the problem then, as now, is that when a felony-murder defendant moves for a bill of particulars concerning the alleged underlying crime, his motion is subject to the discretion of the trial judge, see State v. Covington, 290 N.C. 313, 343, 226 S.E.2d 629, 649 (1976), and is not subject to review except for palpable and gross abuse of discretion, State v. Swift, 290 N.C. 383, 391, 226 S.E.2d 652, 660 (1976); see also State v. Williams, 355 N.C. 501, 542, 565 S.E.2d 609, 633 (holding that a “ ‘denial of a defendant’s motion for a bill of particulars will be held error only when it clearly appears to the appellate court that the lack of timely access to the requested *434information significantly impaired defendant’s preparation and conduct of his case’ ”), (quoting State v. Easterling, 300 N.C. 594, 601, 268 S.E.2d 800, 805 (1980)), cert. denied, Williams v. North Carolina, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). Therefore, a felony-murder defendant’s “right” is limited to requesting more definite information, not to receive it. A review of case law in the wake of Crawfordyields no case in which a felony-murder defendant successfully petitioned the trial court for a bill of particulars that would identify the underlying felony he was accused of committing. As a consequence, any such “right” to a bill of particulars reveals itself as a paper tiger, a toothless guarantee.
¶11I note that the felony-murder defendant in Crawforddid not move the trial court for a bill of particulars concerning the details or identity of the underlying crime, prompting the Court to advise him thusly: “ ‘If the defendant desired more definite information he had the right to request a bill of particulars, in the absence of which he has no cause to complain.’" 260 N.C. at 556, 133 S.E.2d at 238 (emphasis added) (quoting Mays, 225 N.C. at 489, 35 S.E.2d at 496). The implication of the holding, and any inference reasonably drawn therefrom, certainly suggest, if not establish, that had the defendant moved for a bill of particulars, he would have cause to complain. Yet in the instant case, where defendant did in fact petition for such a bill of particulars, the majority concludes he, too, is without cause to complain. If a defendant is deemed without complaint for failing to move for a bill of particulars, and he is deemed without complaint when he moves for a bill of particulars but does not receive the information he has requested, when precisely will a felony-murder defendant be positioned to complain (that he cannot mount a credible defense against a crime that may not even be identified until the trial’s end)?
¶12Matters pertaining to the scope and procedure of a bill of particulars are outlined in N.C.G.S. § 15A-925. The first three subsections are particularly relevant to the instant case and read as follows:
(a) Upon motion of a defendant. . ., the court in which a charge is pending may order the State to file a bill of particulars with the court and to serve a copy on defendant.
(b) A motion for a bill of particulars must request and specify items of factual information desired by the defendant which pertain to the charge and which axe not recited in the pleading, and *435must allege that the defendant cannot adequately prepare or conduct his defense without such information.
(c) If any or all of the items of information requested are necessary to enable the defendant adequately to prepare or conduct his defense, the court must order the State to file and serve a bill of particulars. Nothing contained in this section authorizes an order for a bill of particulars which requires the State to recite matters of evidence.
¶13N.C.G.S. § 15A-925 (2003). A breakdown of the statute’s key provisions is as follows: (1) defendant needs to specify the desired information pertaining to the charge that is not included in the pleading (indictment); (2) he needs to allege that he cannot prepare his defense without such information; and, when he does so, (3) the trial court must order the State to provide a bill of particulars if defendant shows they are necessary to prepare his defense. In the context of a felony murder charge, what could be more necessary to enable a defendant to prepare his defense than to be informed of the actual charge he must defend against? Again, I emphasize that a conviction for felony murder is tantamount to proving, beyond a reasonable doubt, that defendant committed the underlying felony.
¶14In addition, I note that whether spelled out in an indictment or not, the underlying felony is treated as a distinct criminal offense. If a defendant is convicted of felony murder, he is also “convicted” of the underlying felony. In the instant case, an examination of the issue and judgment sheets reveals that defendant was convicted of two crimes — felony murder and the underlying felony of attempted rape. The case is far from unique; its verdict emulates those of all other felony murder prosecutions that resulted in convictions. Thus, despite the aforementioned notice protections accorded suspects in our state’s Constitution and statutes, a criminal defendant can be, and frequently has been, convicted of an offense for which he has not been indicted, and that has not even been identified until his trial is over.
¶15The particular circumstances of the instant case, in which defendant was on trial for his life, vividly demonstrate the logistical problems associated with notice in felony murder prosecutions. After being indicted by short form for felony murder, defendant filed a pretrial motion with the trial court for a bill of particulars concerning details of what the State intended to prove at trial. At a hearing addressing the motion, defendant requested that the State be com*436pelled to provide two pieces of information germane to the discussion at issue: (1) whether the State planned to proceed on the theory of first-degree murder premised on premeditation and deliberation or felony murder; and (2) if premised on felony murder, what would be the underlying felony the State intended to prove at trial..
¶16After properly denying defendant’s request for information concerning whether the State intended to choose between theories of premeditation and deliberation or felony murder, see State v. Avery, 315 N.C. 1, 13-14, 337 S.E.2d 786, 793 (1985) (holding that the state’s Constitution does not require a murder indictment to specifically allege premeditation and deliberation or felony murder), the following discussion took place concerning defendant’s request for specifying the underlying felony:
Ms. Spurlin (Assistant District Attorney): Your Honor, I would say to the Court, the [S]tate intends to proceed not only on first-degree murder with premeditation and deliberation, but also first-degree murder under the felony murder rule, and we’ll be asking the Court, at the end of all the evidence, to submit all of those felonies which the [S]tate has provided sufficient evidence to go as to the basis of the felony murder rule. And again[,] that decision will be made at the end of all of the evidence.
Mr. Gaskins (Defense Counsel): [W]hile I recognize that the [S]tate contends that it is proceeding on the felony murder rule, the defendant contends, based on lots of factors, including the material revealed in discovery, that there are no controls and that if the [S]tate just would like to just kind of say, let’s throw it all out there, see how it all comes out in the wash, I don’t think we’re permitted to do that....
... I think if the [S]tate has evidence of felonies, of underlying felonies, then we’re required to know specifically what those'are.
Ms. Spurlin: Again, the defendant has all the discovery. We may have a difference of opinion as to whether or not this is a case that will go to the jury for felony murder. . . . I’m simply saying to the Court we believe the evidence will support those. We are not required to state those prior to trial.
I don’t know that we’re in a position to be able to state that to this Court. Again, the issue is what, at the end of all of the evi*437dence, has been supported by the evidence to be presented to the jury. It’s not required and again I don’t believe the [S]tate’s in a position to be able to do that.
The Court: Well, what is ultimately going to go to the jury is going to be decided by me after I have heard all of the evidence.
¶17(Emphasis added). In the aftermath of this discussion, the trial court informed defense counsel thusly: “Mr. Gaskins, unfortunately, from what I’ve heard since you made that motion, I don’t know that they know what the underlying felony is going to be other than there are two possibilities- — one, robbery, a theory no one believes in law enforcement or the girlfriend, and the other has to be sex. Other than that, I don’t know of any theory.” The trial court then proceeded to deny defendant’s motion for a bill of particulars concerning the particular underlying felony defendant was alleged to have committed.
¶18Thus, to that point, amid pre-trial proceedings, the trial court informed defendant that: (1) the State did not know which underlying felony it would attempt to prove; (2) the State was not required to allege before trial which underlying felony it would attempt to prove; and (3) defendant was not entitled to know which particular felony or felonies he would be defending against at trial.
¶19Then, at the close of all the evidence presented at trial, the trial court weighed whether or not the State provided ample evidence to warrant a jury instruction for the following underlying felonies: (1) robbery, (2) kidnapping, and (3) attempted rape. The trial court dismissed the robbery allegation out of hand and then heard arguments regarding kidnapping and attempted rape. After deliberating through a lunch recess, the trial court returned and, without elaboration, announced it would instruct the jury on felony murder, with attempted rape being the underlying felony.
¶20Thus, at some point after the close of all the evidence presented at trial, defendant was notified of the specific crime he was expected to defend against. Of course, at that juncture, the information was of no use; the evidentiary portion of the trial was over. Defendant, facing the prospect of a death sentence, had defended the entire evidentiary portion of his trial without the benefit of knowing the specific crime the State intended to submit for the jury’s consideration. To make matters worse, the trial judge’s pre-trial prediction as to what *438the underlying crime may be — “robbery” or “sex” — provided little useful guidance and, in fact, proved partially erroneous. In addition to the two crimes suggested by the trial court during pre-trial proceedings, a third crime — “kidnapping”—emerged as a potential underlying felony at trial, and in fact was offered as such at the close of evidence by the State. As a consequence, defendant proceeded through trial attempting to defend the charges against him unaware of whether the facts and circumstances of his case would lead to proving attempted rape, kidnapping, robbery (and/or even perhaps attempted robbery, which was also proposed and discussed by the State’s counsel). The very idea that the State can allege unspecified criminal activity, present factual evidence, and then seek to define the specific crime in the aftermath of such evidence is, in fact, contrary to our well-established principles of criminal justice, a hallmark of which is the constitutional guarantee that a criminal defendant be given notice of the crime that he must defend against.
¶21My research yields no other example of a criminal defendant who faces the prospect of trial without prior knowledge of the specific crime he is alleged to have committed and must defend against. In fact, there are scores, if not hundreds, of cases that conclude that a criminal defendant must be so informed. See, e.g., State v. Nugent, 243 N.C. 100, 101, 89 S.E.2d 781, 783 (1955) (holding that the constitutional right of a defendant to be informed of the accusation against him requires that the indictment or warrant set out the offense with sufficient certainty to identify it and enable defendant to prepare for trial). See also State v. Lorenzo, 147 N.C. App. 728, 734, 556 S.E.2d 625, 629 (2001); State v. Burroughs, 147 N.C. App. 693, 695-96, 556 S.E.2d 339, 342 (2001).
¶22If, as the majority asserts, the procedural circumstances of the instant case allow the State to proceed against a felony-murder defendant without identifying the crime he is expected to defend against, would not such a holding run counter to this Court’s long history of rejecting criminal charging vehicles that fail to identify the specific criminal offense at issue? Our case books are replete with cases in which indictments and other notice-providing documents have been deemed fatally defective for far lesser reasons than the failure to identify the crime. See, e.g., State v. Smith, 267 N.C. 755, 756, 148 S.E.2d 844, 844-45 (1966) (holding that an indictment charging that defendant broke and entered “a certain building occupied by one Chatham County Board of Education, a Government corporation” was fatally defective in failing to identify the premises with suf*439ficient certainty); State v. Price, 265 N.C. 703, 704-05, 144 S.E.2d 865, 866-67 (1965) (holding that an indictment that does not incorporate the word “feloniously” or charge that the offense is a felony cannot support a conviction of an offense greater than a misdemeanor); State v. Overman, 257 N.C. 464, 468, 125 S.E.2d 920, 924 (1962) (holding that where the indictment charged the name of the injured as “Frank E. Nutley” while the proof at trial showed the injured was “Frank E. Hatley,” there was a material variance warranting a non-suit); and State v. Finch, 218 N.C. 511, 511-12 11 S.E.2d 547, 547-48 (1940) (holding that where the name of one of the defendants did not appear in the indictment, it was fatally defective as to him, notwithstanding that his name appeared on the envelope, that his name was placed on the court dockets prepared for the judge and counsel, and that he was fully informed of the charge against him).
¶23Thus, while this Court has held that an indictment — either by itself or in tandem with other notice-providing instruments, such as a bill of particulars — may prove insufficient for failing to reference details of a particular crime, such as an individual element of the offense, the precise location of an offense, or even whether the alleged offense constituted a felony, the majority here concludes that such instruments will not be deemed deficient if they fail to identity the crime itself. Such a conclusion, in my view, not only defies logic; it is without support under the law. As a consequence, I cannot offer my support to the majority’s conclusion.
¶24In the instant case, defendant faced a first-degree murder conviction, and a possible death sentence, if the jury determined that the victim was killed during defendant’s commission of a violent felony. The indictment did not specify the underlying felony, and when defendant sought a bill of particulars in order to identify the felony, the State argued it did not have to provide such information and contended that any qualifying felony would eventually emerge from the evidence presented at trial. The trial judge denied defendant’s motion and explained to defendant that in all likelihood, he could expect to defend against only two possible offenses — robbery or sex. Then, after the close of all evidence, the State proffered as many as four possible underlying felonies, with the trial judge ultimately choosing one — attempted rape — as the basis for the felony murder charge. As a consequence of the foregoing chronology, defendant learned of the crime he would have to defend against at a time when he could no longer plan or mount any defense against it. Such procedure flies in the face of any rational interpretation of our state’s constitutional *440mandates, which guarantee a criminal defendant the right to pre-trial notice of the crime he is alleged to have committed, and the crime he must prepare to defend against.
¶25In my view, the trial court’s failure to ensure that defendant was informed of the crime he would defend against at trial amounted to prejudicial error. As a result, I respectfully dissent from those portions of the majority opinion that address defendant’s pre-trial motion for the State to identify the specific underlying felony it intended to prove at trial.