Self-defense, Intent to Kill and the Duty to Retreat

Consider the following scenario: Driver Dan is traveling down a dark county two-lane road in his sedan. Traffic is light but slow due to the cold weather and mist. Another driver in a truck appears behind Dan and starts tailgating him, getting within a few feet of his bumper. After unsuccessfully trying to pass Dan, the other driver begins tailgating Dan even more, now staying within inches of his bumper. When the cars ahead turn off and the road is clear,  slows to let the other driver pass, but the other driver continues closely riding Dan’s bumper for several miles, flashing high beams at times. Eventually, the other driver pulls alongside Dan and begins “pacing” him, staying beside Dan’s car instead of passing. The other driver then begins to veer into Dan’s lane, forcing Dan’s passenger-side tires off the road. As Dan feels the steering wheel begin to shake, he fears losing control of his car and decides to defend himself with his (lawfully possessed) pistol. He aims through his open window at the other driver’s front tire and shoots, striking it and halting the other vehicle. The other driver stops without further incident, and Dan leaves. Dan is eventually charged with shooting into an occupied and operating vehicle, a class D felony and general intent crime.

Vote here, and then read on for the answer.

Trial. At least according to the defendant’s evidence, those were essentially the facts in State v. Ayers, ___ N.C. App. ___ (Sept. 4, 2018); temp. stay allowed, ___ N.C. ___ (Sept. 12, 2018). The defendant was a 49 year-old retired Army paratrooper. He was returning from the Veterans Administration hospital in Durham in January 2015 when the above events occurred. He testified at trial to his fear and his intent to shoot the tire. He thought at the time: “I don’t have to shoot the guy. I can just disable his vehicle.” Slip Op. at 5. The trial judge instructed the jury on self-defense pursuant to N.C.P.I-Crim. 308.45, but omitted the no-duty-to-retreat language of the pattern instruction, consistent with choice C) above. The jury convicted (although, notably, the judge found extraordinary mitigation and suspended the sentence). The defendant appealed, arguing that the jury should have been instructed that he had no duty to retreat under G.S. 14-51.3.

Entitlement to Self-Defense Instruction. Before addressing whether the defendant had a duty to retreat, the court implicitly considered the State’s preliminary argument on appeal (seen in its brief)—that the defendant wasn’t entitled to a self-defense instruction at all since he didn’t shoot with the intent to kill the other driver. Any error in the trial judge’s omission of the no-duty-to-retreat language from the instructions was therefore harmless. The Court of Appeals rejected this view, clarifying the intent needed to justify a self-defense instruction:

Although the Supreme Court has held that a self-defense instruction is not available where the defendant claims the victim’s death was an ‘accident’, each of these cases involved facts where the defendant testified he did not intend to strike the blow. For example, a self-defense instruction is not available where the defendant states he killed the victim because his gun accidentally discharged. A self-defense instruction is not available when a defendant claims he was only firing a warning shot that was not intended to strike the victim. These lines of cases are factually distinguishable from the present case and are not controlling, because it is undisputed Defendant intended to ‘strike the blow’ and shoot [the other driver’s] tires, even if he did not intend to kill [him]. Id. at 10 (internal citations omitted).

In other words, it was the intentional use of force against his assailant that mattered, not whether the defendant meant for the “blow” to specifically kill. The court said that self-defense, at least in the context of this case, did not require lethal intent, merely a “general intent to strike the blow.” Id. at 8. John Rubin has been analyzing this issue for several years, both in his book on self-defense and in recent blog posts. Be sure to read his comments at the end of this post, where he explains his views in greater detail.

Duty to Retreat. Turning to the question of whether the jury was properly instructed, the State advanced the argument that the defendant had no right to “stand his ground,” in part because he wasn’t “standing” anywhere:

In the present case, defendant was not standing anywhere. He was in motion on a highway. Nor, by virtue of defendant being in motion, could he necessarily retreat. Defendant is essentially contending that he had a right to stay the course, or to stay in motion driving upwards of thirty miles per hour on a busy highway, rather than a duty to stop to avoid the necessary use of force. Brief of State-Appellee at 29, State v. Ayers, ___ N.C. App. ___ (Sept. 4, 2018).

Therefore, the argument went, there was no error in failing to instruct the jury on no-duty-to-retreat.

The court rejected this argument and held that the defendant had no duty to retreat on a public highway. G.S. 14-51.3(a) states, in pertinent part: “A person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has a lawful right to be if . . . (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.” The highway was a public place where the defendant was lawfully present in his own vehicle and, under the statute, he had no duty to stop to avoid the use of force. “Defendant was under no legal obligation to stop, pull off the road, veer from his lane of travel, or to engage his brakes and risk endangering himself.” Id. at 13. Thus, the no-duty-to-retreat language of the instruction should have been given, and the failure to do so was prejudicial. “Without the jury being instructed that Defendant had no duty to retreat from a place where he lawfully had a right to be, the jury could have determined, as the prosecutor argued in closing, that Defendant was under a legal obligation to cower and retreat.” Id. The court’s holding reinforces the breadth of the statutory language that a person has the right to “stand” his or her ground in any lawful place, even when driving and not literally standing.

Takeaway. So, the answer to the poll is D): The defendant was entitled to a self-defense instruction, including a no-duty-to retreat provision. To be clear, the court doesn’t say that the defensive force was justified by the defendant in Ayers. The court recognized, however, that whether the defendant’s use of force was reasonable is a question of fact for the jury to determine upon proper instructions. For, as the court observed in its concluding remarks: “Self-preservation is the most basic and fundamental natural right any individual possesses.” Id. at 14.

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