Smith's Criminal Case Compendium
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State v. Pender, ___ N.C. App. ___, 830 S.E.2d 686 (Jun. 18, 2019)
In this assault with a deadly weapon inflicting serious injury case, the trial court properly instructed the jury regarding self-defense. The defendant was in a physical altercation with another woman, during which she cut the other woman a number of times with a knife. “Recognizing that a defendant may only use deadly force to protect herself from great bodily injury or death,” the North Carolina Pattern Jury Instructions provide two different sets of jury instructions for self-defense: NCPI-Criminal 308.40 describes when the use of non-deadly force is justified; NCPI-Criminal 308.45 describes when the use of deadly force is justified. The trial court instructed the jury pursuant to NCPI-Criminal 308.40 and the defendant argued that this was error because the jury could have determined that the knife was a deadly weapon, entitling her to an instruction pursuant to NCPI-Criminal 308.45. The Court of Appeals disagreed. Viewing the evidence in the light most favorable to the defendant, the court concluded that the evidence was not sufficient to support a finding that the defendant “reasonably apprehended death or great bodily harm when she struck the defendant with the knife,” and, thus, the trial court did not err by failing to instruct the jury pursuant to NCPI-Criminal 308.45.