Time’s Arrow: Does McLymore’s Causal Nexus Requirement Have a Temporal Component?
The statutory right to use deadly force in self-defense is not available to one who was committing a felony. G.S. 14-51.4(1). In State v. McLymore, 380 N.C. 185 (2022), the North Carolina Supreme Court interpreted this provision as reflecting the common law concept of fault, under which a person is disqualified from using deadly force to escape from a confrontation of his own making. The Court of Appeals in State v. Cole, No. COA24-563 (N.C. Ct. App. April 1, 2026), recently rejected an argument about jury instructions, saying that McLymore never suggested “there was a specific temporal component to the felony disqualifier.” This post considers the decision in Cole.
A Temporal and Causal Nexus
Our current statutes on defensive force date from 2011. Before that time, as my colleague John Rubin has noted, self-defense in North Carolina was governed largely by the common law. The common law recognized that the privilege to use deadly force in self-defense is available only to a person who was without fault. State v. Marsh, 293 N.C. 353, 354 (1977). The concept of fault generally precluded a person who instigated an affray (i.e., an aggressor) from exercising the privilege of using deadly force against the reaction of his adversary. State v. Wynn, 278 N.C. 513, 519 (1971). It similarly barred one (e.g., an armed robber) whose criminal conduct gave his victim the lawful right to use deadly force in response. See State v. Jacobs, 363 N.C. 815, 822 (2010).
By statute, a person is justified in the use of deadly force and has no duty to retreat in any place where he or she has a lawful right to be if he or she reasonably believes such force is necessary to prevent imminent death or great bodily harm. G.S. 14-51.3(a)(1). This justification, however, is not available to a person who used defensive force and who (1) was committing a felony or (2) initially provoked the use of force against himself or herself. G.S. 14-51.4. Before McLymore, the Court of Appeals had interpreted the felony-disqualifier provision as containing no requirement that the felony give rise to the need to use defensive force. See State v. Crump, 259 N.C. App. 144, 151 (2018) (holding G.S. 14-51.4 contains a temporal requirement but not a causal nexus one).
The Supreme Court in McLymore overruled this interpretation. It first rejected an argument that the common law survived the enactment of our defensive force statutes, holding that G.S. 14-51.3 “supplants the common law on all aspects of the law of self-defense addressed by its provisions.” State v. McLymore, 380 N.C. 185, 191 (2022). Still, it is doubtful, the Supreme Court said, that the legislature intended to disavow the “common law principle” of fault in a statute “which otherwise closely hews to the common law.” Id. at 197. Hence, the felony-disqualifier provision is applicable, it held, only when there is evidence that the confrontation giving rise to the use of defensive force would not have occurred but for the defendant’s felonious conduct. Id. at 197-98; see also State v. Townsend, 299 N.C. App. 132, 138 (2025) (no error in instruction on causal nexus requirement).
State v. Cole
On November 8, 2019, the defendant in Cole was ejected by the occupants from a drug house in Charlotte. The defendant drove away, but he returned 15 or 20 minutes later, found Furahn Murrow and Doug Bolton in the backyard, and shot both men. The defendant then went inside the house and shot Tilden Hoyle and Janet Scronce. Morrow and Scronce died from their injuries. Cole, Slip Op. pp. 6-8. The defendant was indicted for two counts of murder, two counts of attempted murder, and one count of discharging a firearm within an enclosure to incite fear. Id. at 2.
The matter came on for trial by jury in July 2023. At the charge conference, the defendant requested an instruction on self-defense for the backyard shootings. He objected, however, to inclusion of an instruction on the felony-disqualifier of G.S. 14-51.4. The trial court ultimately instructed the jury on both self-defense and on the felony-disqualifier limitation. Cole, Slip Op. p. 18-19. In particular, the trial court charged that the defendant would not be entitled to use defensive force if (1) he was committing felony breaking and entering, discharging a firearm within an enclosure to incite fear, or murder/attempted murder of the other victims, and (2) that felony was immediately causally connected to the circumstances giving rise to the defensive force used. (See Record on Appeal pp. 70-71, 84-85) The defendant was convicted of all charges, and he appealed to the Court of Appeals.
Before the Court of Appeals, the defendant argued the trial court erred in its instructions. He noted the instruction included felonies that occurred after the shooting of Morrow and Bolten, and he claimed there could be no causal nexus with the prior use of force. The Court of Appeals disagreed. “Nowhere in McLymore,” the Court of Appeals said, “did the Supreme Court suggest that there was a specific temporal component to the felony disqualifier beyond the statutory requirement of ‘an immediate causal nexus.’” Cole, Slip Op. p. 24. Indeed, the defendant’s argument, it said, “contradicts McLymore,” where the Supreme Court found that any error in the jury instructions was harmless because “McLymore’s commission of [armed robbery] immediately followed the confrontation during which he used deadly force.” Id. Further, unlike in McLymore, the defendant here had the opportunity to dispute the existence of a causal nexus, and the jury was afforded the opportunity to determine whether a causal nexus existed. Id. at 24-25. The Court of Appeals concluded the trial court did not err by delivering the felony-disqualifier instruction. Id. at 25.
Conclusion
Instructions are reviewed to determine whether they are correct in law and supported by evidence. State v. Mumma, 372 N.C. 226, 239 (2019). An instruction that the right to use force in self-defense is available only to one who is without fault is hardly susceptible to challenge as legally inaccurate. Cf. State v. Bass, 371 N.C. 535, 542 (2018) (“a defendant entitled to any self-defense instruction is entitled to a complete self-defense instruction”). A growing number of cases addresses whether the evidence presented supports an instruction on such limitations. E.g., State v. Villareal, No. COA25-219 (N.C. Ct. App. Feb. 18, 2026) (evidence supported instruction on aggressor doctrine).
The argument in Cole falls into this category. The defendant there argued – reasonably enough –that he could not be disqualified from using defensive force by felonies he had not yet committed. The Court of Appeals might have rejected this argument on the basis that there was little evidence of necessity in the defendant’s shooting four people, and the jury reasonably could have rejected his claim of self-defense, any error in the felony-disqualifier instruction notwithstanding. Instead, it reasoned that the felony disqualifier provision contains no specific temporal component.
That holding may seem difficult to square with the terms of the felony disqualifier provision itself. Indeed, the Court of Appeals had previously held G.S. 14-51.4(1) contains a temporal requirement. Hence, “self-defense is not available to one who uses defensive force when contemporaneously engaged in felonious conduct.” State v. Crump, 259 N.C. App. 144, 150 (2018), rev’d on other grounds, 376 N.C. 375 (2020). If McLymore disturbed that holding, it did so only to acknowledge the doctrine of continuous transaction, under which the totality of the conduct is more important than the sequence of events. McLymore, 380 N.C. at 199 n.3. The Court of Appeals’ comment in Cole that the defendant’s argument “contradicts McLymore” should be understood in this sense.
Prosecutors should not read Cole as lessening the State’s burden. Under McLymore, to disqualify a defendant from justifying the use of force under G.S. 14-51.4, the State still must introduce evidence that, but for the defendant’s commission of a felony, the confrontation involving the use of deadly force would not have occurred. McLymore, 380 N.C. at 197-98. That will obviously be easier when the felony precedes or is contemporaneous with the use of force. Absent a continuous transaction, it is difficult to see how felonies committed later could precipitate a prior use of force.
