In this Rockingham County case, the Supreme Court modified and affirmed the Court of Appeals decision that defendant had waived appellate review of the denial of his request for a self-defense instruction to the jury. 

In March of 2017, defendant and the mother of one of his sons had an altercation at a hotel in Reidsville. Defendant struck and choked the female victim; eventually the victim grabbed a pistol in the hotel room to defend herself. Testimony differed on whether the victim intentionally fired the pistol into the floor of the hotel or if it went off in a struggle, but defendant was struck in the calf by a bullet. After the altercation, the victim left the hotel room and filed a report with police. Defendant was indicted on several assault and firearm charges. At trial, defendant did not give notice that he planned to argue self-defense, and did not testify on his own behalf; during the jury instruction conference defendant’s counsel agreed with the proposed instructions, which did not include self-defense. However, on the morning after the jury instruction conference, defense counsel requested that the court include an instruction on self-defense, a request that the trial court denied. 

The Court of Appeals held that defendant failed to preserve his challenge to the denial of his requested instruction because he did not object during the jury instruction conference or after instructions were given to the jury, representing invited error. The Supreme Court disagreed with this conclusion, explaining that N.C. Rule of Appellate Procedure 10(a)(2) does not require objection specifically during the jury instruction conference, only an objection “before the jury retires to consider its verdict,” meaning defendant’s challenge was sufficient. Slip. Op. at 20-21. Because defendant made his request prior to the jury retiring, and the trial court denied defendant’s request, the court held that “defendant’s challenge . . . was properly preserved for purposes of appellate review even though defendant did not raise the self-defense issue at the jury instruction conference, expressed initial agreement with the trial court’s proposed instructions, and did not lodge any sort of objection to the instructions that the trial court actually gave . . . .” Id. at 21-22. The court also noted that defendant’s failure to provide notice of his intention to argue self-defense as required by G.S § 15A-905(c)(1) did not alter the result, as that requirement is a discovery-related obligation, and the record did not reflect imposition of a discovery sanction precluding the self-defense argument. Id. at 23-24. 

Moving to the substantive issue of whether the trial court erred by denying the self-defense instruction, the Supreme Court agreed with the Court of Appeals that the record did not support defendant’s argument of self-defense. Applying the self-defense standard from G.S. § 14-51.3(a), the court found that “the record contains no evidence tending to show that defendant assaulted [the victim] for the purpose of defending himself from the use of unlawful force on the part of [the victim].” Id. at 27. 

Chief Justice Newby, joined by Justices Berger and Barringer, concurred in part and dissented in part, disagreeing with the opinion regarding whether defendant preserved his request on appeal but agreeing with the majority that the trial court properly denied the instruction on self-defense. Id. at 30. 

Justice Earls concurred in part and dissented in part, agreeing with the opinion that defendant preserved the issue of his request for appellate review, but disagreeing with the majority regarding the trial court’s denial of defendant’s request for the self-defense instruction. Id. at 37.