Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 11/10/2024
E.g., 11/10/2024

In this Cumberland County case, the Supreme Court modified and affirmed the Court of Appeals decision vacating defendant’s conviction for assault with a deadly weapon with intent to kill inflicting serious injury due to an erroneous instruction on excessive force and the castle doctrine. The Court affirmed the Court of Appeals’ finding of error but vacated the finding of prejudice and granting of a new trial, instead remanding to the Court of Appeals for a proper consideration of whether defendant was prejudiced by the error. 

In April of 2021, the victim approached defendant’s front door, leading to a confrontation between the two over defendant’s complaints to their landlord about the victim. After the confrontation escalated, defendant fired several shots at the victim, hitting her in the left side and causing injuries that left her disabled. At trial, defendant asserted self-defense and defense of habitation under the castle doctrine. The trial court expressed concern over giving a castle doctrine instruction, and ultimately altered the instruction with the following: “However, the defendant does not have the right to use excessive force.” Slip Op. at 5. Defense counsel objected that this limitation was from common law, not statutory law, but the trial court went forward with the altered instruction. When the matter reached the Court of Appeals, defendant argued that the trial court’s instruction was error, and the panel’s majority agreed. The dissenting judge did not see error in the instruction, and reasoned that the castle doctrine law aligned with common law defenses, leading to the State’s appeal based on the dissent. 

Taking up the State’s appeal, the Supreme Court first gave an overview of the castle doctrine’s evolution from a common law defense to the modern G.S. 14-51.2. The Court then spent a significant amount of the opinion exploring the text of G.S. 14-51.2 and the presumptions it contains, including the presumption that a lawful occupant who uses deadly force “is ‘presumed to have held a reasonable fear of imminent death or serious bodily harm’ and has no duty to retreat from the intruder.” Id. at 15. The Court emphasized this presumption was rebuttable, but that “the castle doctrine’s statutory presumption of reasonable fear may only be rebutted by the circumstances contained in section 14-51.2(c).” Id. at 16. This precluded any common law concept of excessive force as provided in the trial court’s instruction. Having established the instruction was error, the Court then moved to whether defendant was prejudiced, determining that the Court of Appeals “failed to conduct an appropriate inquiry” into the prejudice determination. Id. at 21. As a result, the Court remanded to the Court of Appeals for a proper analysis. 

Justice Earls, joined by Justice Riggs, concurred in the conclusion that the castle doctrine instruction was error, but dissented from the majority’s decision to remand to the Court of Appeals, reasoning that the Court had the ability to decide whether defendant was prejudiced based on the briefing. 

In this Randolph County case, the Supreme Court majority reversed the Court of Appeals decision overturning defendant’s conviction for second-degree murder, finding no error by the trial court.

In June of 2017, after a tumultuous affair involving the use of methamphetamine, defendant shot the victim while he was in her home. Defendant called 911 to report her shooting of the victim, who was in her bedroom at the time he was killed. An investigation found that the victim was shot in the back and evidence suggested that the shots were fired from more than six inches away. Defendant was indicted for second-degree murder; during trial the court instructed the jury on the aggressor doctrine over defendant’s objection. After defendant was convicted, she appealed, arguing the trial court erred by providing instruction on the aggressor doctrine. The Court of Appeals agreed, ordering a new trial. 

The Supreme Court noted that the appropriate inquiry was whether evidence in the record, when interpreted in the light most favorable to the State, supported the conclusion that defendant was the aggressor, and determined that the Court of Appeals failed to properly apply the standard in the current case. The self-defense “castle doctrine” provisions of G.S. §§ 14-51.2 and 14-51.3 allow a person to use deadly force to defend themselves in their home; the “aggressor doctrine” in G.S. 14-51.4 removes this defense if the jury finds that the defendant initially provoked the confrontation and no exceptions apply. When determining whether an instruction on the aggressor doctrine is appropriate, “a trial court must consider whether a jury could reasonably infer from the evidence that the defendant acted as an aggressor.” Slip Op. at 15. When making this determination, “the court must view the record in the light most favorable to the State, drawing all reasonable inferences in its favor.” Id. Here, defendant’s testimony at trial contradicted her previous statements, and contained new details not previously disclosed. The Supreme Court pointed out that physical evidence also seemed to contradict defendant’s version of events. Because “there was significant evidence from which a jury reasonably could conclude that [defendant] was the aggressor,” the trial court provided the proper instruction on the aggressor doctrine, and the Court of Appeals incorrectly ordered a new trial. Id. at 21. 

Justice Dietz, joined by Justice Berger, concurred by separate opinion to draw a distinction between common law aggressor doctrine and G.S. 14-51.4. Id. at 22. 

Justice Morgan, joined by Justice Barringer, dissented by separate opinion, and would have found that the aggressor doctrine instruction was inappropriate in this case. Id. at 25. 

Justice Barringer, joined by Justice Morgan, dissented by separate opinion, and would have held that the speculative evidence in the current case was insufficient to support the conclusion that defendant was the aggressor. Id. at 28. 

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. 

In this Davidson County case, the defendant was convicted after a jury trial of first-degree murder and possession of a firearm by a felon after he shot and killed a man who was visiting his home. The trial judge rejected the defendant’s request for an instruction under N.C.P.I.—Crim. 308.10, which informs the jury that a defendant who is situated in his own home and is not the initial aggressor can stand his or her ground and repel force with force regardless of the character of the assault being made upon the defendant. The State had objected to the defendant’s request because it is based on a statutory right of self-defense in G.S. 14-51.2 and -51.3 that is not available to a person “attempting to commit, committing, or escaping after the commission of a felony,” and the defendant here was committing the felony of possession of firearm by felon when he shot the victim. On appeal, the defendant argued that the trial judge erred by refusing his requested instruction. The Court of Appeals unanimously upheld the trial court’s refusal, writing that it was bound by its prior decision in State v. Crump, 259 N.C. App. 144 (2018), which had held that the statutory self-defense rights at issue were not available to a defendant committing a felony even when there was no “causal connection” between that felony and the defendant’s need to use force in self-defense. State v. Benner, 276 N.C. App. 275, 2021-NCCOA-79 (unpublished). The Supreme Court allowed the defendant’s petition for discretionary review.

The Supreme Court rejected the defendant’s argument that the trial court’s refusal to instruct the jury in accordance with N.C.P.I.—Crim. 308.10 deprived the defendant of a complete self-defense instruction, because the court concluded that the instruction the trial court gave adequately conveyed the substance of the defendant’s request. The Court saw no material difference between the trial court’s instruction that the defendant had “no duty to retreat” and the defendant’s requested instruction that he could “stand [his] ground.” Slip op. ¶ 27. Moreover, the Court did not view the given instruction’s lack of language concerning the defendant’s right to “repel force with force regardless of the character of the assault” as problematic in light of the given instruction, which (unlike instructions in prior cases which the Court distinguished) did not tell the jury that the defendant was not entitled to use a firearm to protect himself from death or great bodily injury by an unarmed assailant. The Court concluded that the trial court therefore did not err. But even if the trial court did err in rejecting the defendant’s request, the Court added, the defendant failed to establish a reasonable probability that a different result would have been reached in the absence of the error in light of the instruction the trial judge gave, as well as the “more than sufficient” evidence that the defendant used excessive force. 

Having decided the case on that ground, the Court did not reach the issue of the trial court’s application of the commission-of-a-felony disqualification from the self-defense statutes at issue. The Court did, however, note that a refusal to instruct on that basis “may be inconsistent with [G.S.] 14-51.2(g), which upholds the continued validity of the common law with respect to the exercise of one’s right to defend one’s habitation, as well as [the Court’s recent] decision in [State v.McLymore [summarized here by Phil Dixon on February 15, 2022].” Id. ¶ 26.

Finally, the Court concluded that the defendant’s argument regarding the trial court’s failure to instruct the jury on the defendant’s presumption of reasonable fear of imminent death or serious bodily harm was not properly preserved for appellate review under Rule of Appellate Procedure 10(a)(2).

The Court thus affirmed the decision of the Court of Appeals.

Justice Hudson, joined by Justice Earls, dissented, writing that the trial judge erred by not giving the requested instruction. She wrote that the defendant was not barred from the statutory justification for defensive force in G.S. 14-51.2 and -51.3 by virtue of his commission of the felony offense of possession of firearm by felon in light of the Court’s recent ruling in State v. McLymoresupra, holding that there must be an immediate causal nexus between the felony and the circumstances giving rise to the defendant’s perceived need to use force for the disqualification to apply. She went on to write that the given instruction’s omission of language indicating that the defendant could stand his ground and repel force with force “regardless of the character assault” was a meaningful substantive difference between it and the requested instruction. As such, she would have held that the trial court and the Court of Appeals erred, and that the error was prejudicial.

Even if the trial court erred by declining to instruct the jury using the defendant’s requested modified self-defense instruction, the defendant did not demonstrate that any such error was prejudicial.  Testimony at trial described alternate versions of events that ultimately culminated in the defendant fatally stabbing the victim outside the home of the victim’s girlfriend.  Generally, some witnesses described the stabbing as an unprovoked attack while others, including the defendant, testified that the victim threatened the defendant with a two-by-four board.  The trial court instructed the jury on self-defense using N.C.P.I. – Crim 206.10, which states as an element of self-defense that a homicide defendant must believe it necessary “to kill” the victim.  The trial court refused the defendant’s request to instead instruct the jury that he must believe it necessary “to use deadly force against the victim.”  Taking account of other portions of the instruction which informed the jury that the defendant’s belief regarding his use of force must have been reasonable and that he must not have used “excessive force,” the Court concluded that the defendant had not shown that there was a reasonable possibility the jury would have found he acted in self-defense had the trail court given the modified instruction.  The Court noted that the defendant suffered only minor injuries in the incident but had inflicted a “highly lethal wound” upon the victim using a knife so large that it looked like a machete.  The Court said that the “uncontradicted medical evidence strongly suggests that [the] defendant’s use of deadly force was not reasonable under the circumstances but rather it was excessive.”  In a footnote, the Court recommended that the North Carolina Pattern Jury Instruction Committee review N.C.P.I. – Crim 206.10.

In this felony murder case based on the underlying felony of assault with a deadly weapon with intent to kill inflicting serious injury, the trial court erred by not instructing the jury on self-defense and the doctrine of transferred intent.  The evidence at trial showed that the defendant and a friend arrived at the apartment of Beth and Jon intending to buy marijuana from Jon.  By the time the defendant and his friend left the apartment, Jon, Beth, and the defendant had been shot.  Jon died as a result.  The defendant testified that while in the apartment living room, he picked up a gun he found on a coffee table because “it looked cool,” which caused Jon to become aggressive and Beth to emerge from a bedroom pointing a gun at the defendant.  After convincing Beth to drop her weapon by threatening to kill Jon, the defendant testified that he ran from the apartment, saw Jon pull a gun, and felt himself be shot in the side.  This caused the defendant to shoot in Jon’s direction “as best as [he] could” and “intentionally” at him.  The court explained that this testimony taken in the light most favorable to the defendant entitled him to a jury instruction on perfect self-defense for any shot intended for Jon because , if believed, it showed (1) he subjectively believed that he was going to die if he did not return fire; (2) such a belief was reasonable; (3) he was not the aggressor; and (4) did not use excessive force.  Further, he was entitled to an instruction on self-defense through transferred intent for the AWDWIKISI charge relating to Beth as her injury could have been caused by a bullet intended for Jon.  The trial court correctly gave a self-defense instruction on premeditated murder but erred by refusing to give the defendant’s requested self-defense instruction on felony murder or any underlying felony, including the assault.  This error was prejudicial because it impaired the defendant’s ability to present his defense to felony murder and the assault charge. 

In addition, the Court of Appeals erred by remanding the case for entry of a judgment convicting the defendant of second-degree murder, a verdict the jury returned after the trial court accepted a partial verdict on the felony murder charge and directed the jury to continue to deliberate on the premeditated murder charge.  The trial court’s decision to require continued deliberation and its associated instructions could have resulted in an improper finding by the jury that the defendant was guilty of second-degree murder.  Thus, the court remanded for a new trial on all charges.

Justice Newby dissented, stating his view that the trial court’s jury instructions, which included a general transferred-intent instruction but not the specific instruction requested by the defendant, enabled the defendant to make the jury argument he desired.  Justice Newby interpreted the jury’s verdicts as a rejection of the defendant’s self-defense theory.

 

The defendant was indicted for attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and possession of a firearm by a felon. On June 7, 2016, the defendant was sitting outside of a neighbor’s house with a group of friends when the defendant’s house guest, Garris, approached defendant and punched him. The defendant got up and began walking home, followed by Garris. When the defendant arrived at his residence, he was thrown against the door and hurled over two chairs by Garris. Garris left the residence and returned with a friend, at which time he continued to strike the defendant. Garris left the home a second time and returned shortly thereafter. At that time, the defendant retrieved a gun and shot Garris, injuring him.

At trial, the defendant gave notice of his intent to rely on self-defense. The trial court denied the defendant’s requested instruction to the jury on self-defense and the defense of habitation. The jury found the defendant guilty of assault with a deadly weapon inflicting serious injury and possession of a firearm by a felon. On appeal, the defendant argued that the trial court erred by (1) denying his request to instruct the jury on self-defense, (2) failing to instruct the jury on the “stand-your-ground” provision, and (3) denying his request to instruct the jury on the defense of habitation. The Court of Appeals agreed, concluding that there was a reasonable possibility that the jury would have reached a different result if the defendant’s requested jury instruction had been given to the jury.

The Supreme Court upheld the decision of the Court of Appeals, concluding that, viewing the evidence at trial in the light most favorable to the defendant, the defendant was entitled to both instructions. The Court recognized that “the right to use deadly force to defend oneself is provided both by statute and case law.” The defendant relied on both the self-defense statute, G.S. 14-51.3, and the defense of habitation statute, G.S. 14-51.2. The Court reviewed both, as well as the right not to retreat when defending against an aggressor. The Court determined that the defendant in the instant case presented competent and sufficient evidence to warrant the self-defense instruction.

The dissenting Court of Appeals judge focused primarily on the defendant’s testimony at trial about the firing of a warning shot, concluding that the warning shot rebutted the statutory presumption of “reasonable fear of imminent death or serious bodily harm” and thereby precluding a jury instruction on self-defense and defense of habitation. The Court noted that the dissenting Court of Appeals judge’s perspective ignored the principle that although there may be contradictory evidence from the State or discrepancies in the defendant’s evidence, the trial court must nonetheless charge the jury on self-defense where there is evidence that the defendant acted in self-defense.

Confronting a question of first impression, the court held that “in narrow and extraordinary circumstances” the common law defense of justification may be an affirmative defense to a charge of possession of a firearm by a felon under G.S. 14-415.1.  Noting that justification is an affirmative defense which a defendant carries the burden of proving at trial, the court joined the Court of Appeals in adopting an analysis from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000) andheld that a defendant invoking justification as a defense to a violation of G.S. 14-415.1 must show: 

(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

Having established that justification is a defense to a violation of G.S. 14-415.1, the court examined whether the defendant in this case was entitled to a jury instruction on the defense.  Such an instruction is required, the court explained, when each of the four “Deleveaux factors” is supported by evidence taken in the light most favorable to the defendant.  The defendant’s evidence suggested that he was under a qualifying threat as it showed that he and two friends, J and Wardell, arrived to his home to find that a group of fifteen people, some of whom were armed, had assembled at the home intending to fight the defendant.  As tensions elevated towards violence, the defendant took Wardell’s gun as Wardell seemed unfamiliar with it and, in the defendant’s view, would be unable to use it in their defense.  The court concluded that there was evidence of each of the Deleveaux factors under these facts and that the trial court committed prejudicial error by denying the defendant’s request to instruct the jury on the defense.

A dissenting justice, Justice Morgan, “welcom[ed] the establishment of the justification defense” for this criminal offense but did not believe that the evidence in the instant case was sufficient to require the trial judge to give the instruction.

In a 5-to-1 decision, the Court affirmed the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 500 (2018) (unpublished), finding that the trial court did not err in refusing to instruct the jury on self-defense or imperfect self-defense in the stabbing death of the victim. Relying on previous decisions, the majority found that the defendant was not entitled to self-defense instructions because he referred to the stabbing as “the accident,” stated that his purpose in getting a knife was because he was “scared” that the victim was going to try to hurt him, and that what he sought to do with the knife was to make the victim leave. The majority found that the defendant’s testimony did not establish that he feared death or great bodily harm as a result of the victim’s actions or that he inflicted the fatal blow to protect himself from such harm. Because the defendant failed to present evidence that he formed a reasonable belief that it was necessary for him to fatally stab the victim in order to protect himself from death or great bodily harm, he was not entitled to an instruction on perfect or imperfect self-defense. The dissent criticized the majority for usurping the jury’s role in determining whether the killing was justified; imposing a “magic words” requirement for the defendant’s testimony; disregarding evidence favorable to the defendant and crediting contradictory evidence; and failing to take into account that the defendant was inarticulate. The opinions do not discuss the statutes on self-defense in North Carolina. [John Rubin blogged about this decision here.]

On writ of certiorari from a divided decision of the Court of Appeals, ___ N.C. App. ___, 811 S.E.2d 215 (2018), the court held that the trial court’s decision to include an “aggressor” instruction in its self-defense instructions did not constitute plain error. The trial court, without any defense objection instructed the jury on self-defense, stating that the defendant would not be excused from murder or manslaughter on self-defense grounds if he “was the aggressor with the intent to kill or inflict serious bodily harm upon the deceased.” According to the defendant, no evidence was introduced showing him to be the aggressor. The court noted however that because he did not object to the instruction at trial, he waived his right to challenge the aggressor instruction on appeal. Applying the plain error standard, the court found it not satisfied. It noted that the defendant sent multiple text messages to another individual in the hours before the victim’s death indicating that he wanted to kill the victim. Additionally, the record contains no physical evidence tending to validate the defendant’s otherwise unsupported claim of self-defense and does contain substantial physical evidence tending to undercut this claim, including evidence that the victim sustained defensive wounds to her hand, that she sustained stab wounds inflicted from the rear, and that the defendant’s wounds were much less severe than those inflicted upon the victim. As a result, given that the defendant’s claim to have acted in self-defense rested on his otherwise unsupported testimony and that the record contained ample justification for questioning the credibility of the defendant’s account surrounding the victim’s death, the court found itself unable to conclude that any error associated with the instruction rose to the level of plain error.

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 477 (2017), the court affirmed, holding that the trial court committed prejudicial error by omitting stand-your-ground language from the self-defense jury instructions. The incident in question occurred outside of the Bay Tree Apartments. The defendant gave notice of his intent to pursue self-defense and throughout the trial presented evidence tending to support this defense. At the charge conference, the defendant requested that the jury charge include language from Pattern Jury Instruction 308.45 providing, in relevant part, that the defendant has no duty to retreat in a place where the defendant has a lawful right to be and that the defendant would have a lawful right to be at his place of residence. Believing that the no duty to retreat provisions applies only to an individual located in his own home, workplace, or motor vehicle, the trial court declined to give the requested instruction. After deliberations began, the jury asked for clarification on duty to retreat. Outside the presence of the jury, the defendant again requested that the trial court deliver a no duty to retreat instruction, this time pointing to Pattern Jury Instruction 308.10, including its language that the defendant has no duty to retreat when at a place that the defendant has a lawful right to be. The trial court again concluded that because the defendant was not in his residence, workplace, or car, the no duty to retreat instruction did not apply. The Court of Appeals held that the trial court committed reversible error in omitting the no duty to retreat language from its instruction. Reviewing the relevant statutes, the Supreme Court affirmed this holding, concluding that “wherever an individual is lawfully located—whether it is his home, motor vehicle, workplace, or any other place where he has the lawful right to be—the individual may stand his ground and defend himself from attack when he reasonably believes such force is necessary to prevent imminent death or great bodily harm to himself or another.”

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 789 S.E.2d 679 (2016), the court reversed because of errors in the jury instructions on self-defense. At trial, the parties agreed to the delivery of N.C.P.I.–Crim. 206.10, the pattern instruction on first-degree murder and self-defense. That instruction provides, in relevant part: “Furthermore, the defendant has no duty to retreat in a place where the defendant has a lawful right to be.” Additionally, N.C.P.I.–Crim. 308.10, which is incorporated by reference in footnote 7 of N.C.P.I.–Crim. 206.10 and entitled “Self-Defense, Retreat,” states that “[i]f the defendant was not the aggressor and the defendant was . . . [at a place the defendant had a lawful right to be], the defendant could stand the defendant’s ground and repel force with force.” Although the trial court agreed to instruct the jury on self-defense according to N.C.P.I.–Crim. 206.10, it ultimately omitted the “no duty to retreat” language of N.C.P.I.–Crim. 206.10 from its actual instructions without prior notice to the parties and did not give any part of the “stand-your-ground” instruction. Defense counsel did not object to the instruction as given. The jury convicted defendant of second-degree murder and the defendant appealed. The Court of Appeals affirmed the conviction, reasoning that the law limits a defendant’s right to stand his ground to any place he or she has the lawful right to be, which did not include the public street where the incident occurred. The Supreme Court allowed defendant’s petition for discretionary review and reversed.

(1) The court held that when a trial court agrees to give a requested pattern instruction, an erroneous deviation from that instruction is preserved for appellate review without further request or objection. Here, because the trial court agreed to instruct the jury in accordance with N.C.P.I.–Crim. 206.10, its omission of the required stand-your-ground provision substantively deviated from the agreed-upon pattern jury instruction, thus preserving this issue for appellate review.

(2) By omitting the relevant stand-your-ground provision, the trial court’s jury instructions were an inaccurate and misleading statement of the law. The court concluded, in part, that “[c]ontrary to the opinion below, the phrase “any place he or she has the lawful right to be” is not limited to one’s home, motor vehicle, or workplace, but includes any place the citizenry has a general right to be under the circumstances.” Here, the defendant offered ample evidence that he acted in self-defense while standing in a public street, where he had a right to be when he shot the victim. Because the defendant showed a reasonable possibility that, had the trial court given the required stand-your-ground instruction, a different result would have been reached at trial, the court reversed the Court of Appeals, finding that the defendant was entitled to a new trial.

The court per curiam affirmed a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 575 (2017). In this assault on a law enforcement officer case, the court of appeals held, over a dissent, that the trial court did not err by denying the defendant’s request for a self-defense instruction. While executing a warrant for the defendant’s arrest at his home, an officer announced his presence at a bedroom door and stated that he was going to kick in the door. The officer’s foot went through the door on the first kick. The defendant fired two gunshots from inside the bedroom through the still-unopened door and the drywall adjacent to the door, narrowly missing the officer. The charges at issue resulted. The defendant testified that he was asleep when the officer arrived at his bedroom door; that when his girlfriend woke him, he heard loud banging and saw a foot come through the door “a split second” after waking up; that he did not hear the police announce their presence but did hear family members “wailing” downstairs; that he was “scared for [his] life . . . thought someone was breaking in the house . . . hurting his family downstairs and coming to hurt [him] next;” and that he when fired his weapon he had “no specific intention” and was “just scared.” Rejecting the defendant’s appeal, the court of appeals explained: “our Supreme Court has repeatedly held that a defendant who fires a gun in the face of a perceived attack is not entitled to a self-defense instruction if he testifies that he did not intend to shoot the attacker when he fired the gun.” Under this law, a person under an attack of deadly force is not entitled to defend himself by firing a warning shot, even if he believes that firing a warning shot would be sufficient to stop the attack; he must shoot to kill or injure the attacker to be entitled to the instruction. This is true, the court of appeals stated, even if there is, in fact, other evidence from which a jury could have determined that the defendant did intend to kill the attacker.

Reversing the Court of Appeals, the Supreme Court held that the trial court’s self-defense instructions were not erroneous. The court began by considering whether “North Carolina law allows an aggressor to regain the right to utilize defensive force based upon the nature and extent of the reaction that he or she provokes in the other party.” Although historically North Carolina law did not allow an aggressor using deadly force to regain the right to exercise self-defense when the person to whom his or her aggression was directed responds by using deadly force in defense, changes in statutory law allow aggressor to regain that right under certain circumstances. But, G.S. 14-51.4(2)(a), allowing an aggressor to regain the right to utilize defensive force under certain circumstances, does not apply where the aggressor initially uses deadly force against the person provoked. Thus, the trial court did not err by instructing that a defendant who was the aggressor using deadly force had forfeited the right to use deadly force and that a person who displays a firearm to his opponent with the intent to use deadly force against him or her and provokes the use of deadly force in response is an aggressor. The court continued, noting that it also must determine whether the trial court erred by failing to instruct the jury, in accordance with the defendant’s request, that he might have regained the right to use defensive force based on the victim’s reaction to any provocative conduct in which the defendant might have engaged. The court concluded that a defendant “could have only been entitled to the delivery of such an instruction to the extent that his provocative conduct involved non-deadly, rather than deadly, force.” Here, there was a complete absence of any evidence tending to show that the defendant used non-deadly force. 

In this Iredell County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denying his motion to dismiss for insufficient evidence of premeditation and deliberation, (2) omitting stand-your-ground from the instruction on self-defense, and (3) excluding evidence of the victim’s previous felony convictions. The Court of Appeals majority found error in (1) and (3), vacating defendant’s conviction and remanding for a new trial. 

In September of 2020, the victim and several other men were dove hunting in a field next to defendant’s land. The victim had permission from the landowner to hunt in the field, and had hunted here for several years, but as a convicted felon he could not legally possess a firearm. Defendant kept a horse rescue farm next to the field, and in 2017 a man hunting with the victim had shot one of defendant’s horses. After that incident, defendant asked the victim to be more cautious while hunting, and to avoid hunting near the fence line. On the morning of the incident, defendant heard shooting and went to confront the victim; defendant was carrying a pistol in his back pocket. After an argument, the victim shoved defendant to the ground. After that, testimony differed as to whether the victim charged defendant and defendant shot him in self-defense, or defendant shot the victim immediately. At trial, the State moved to exclude discussion of the victim’s prior felony convictions, and the trial court granted the motion. Defendant moved to dismiss, arguing lack of evidence showing premeditation or deliberation for the murder, but the motion was denied. Defendant also objected to the proposed jury instruction on self-defense, arguing it did not include an instruction on stand-your-ground law, but the trial court declined to change the instruction. 

Taking up (1), the Court of Appeals first outlined the eight factors “which assist in the determination of whether premeditation and deliberation were present.” Slip Op. at 12. Here, defendant argued he “did not have a history of arguments, ill will, or serious animosity” towards the victim, and instead “was in fear for his life” as he thought the victim was reaching for a gun. Id. at 14. The court’s majority agreed with defendant that there was no evidence of arguments or ill will, and after reviewing the eight factors, concluded this case did not show premeditation and deliberation. The majority highlighted the age difference, as defendant was 72 years old and the victim was 46, and the conduct of defendant after the shooting, as he went home, unloaded his firearm, and called law enforcement to report the shooting. 

Moving to (2), the court disagreed that a stand-your-ground instruction was justified, as defendant was not in a place where he had a lawful right to be, the field adjacent to his property. Defendant argued that “absent evidence that he was a trespasser, he had a lawful right to be in the field and there is no reason to assume he was there unlawfully.” Id. at 21. However, the court looked to G.S. 14-51.3 and caselaw interpreting it, determining that since defendant was on privately owned property, and he did not admit evidence that he had permission to be there, he had not established a lawful right to be there for stand-your-ground purposes. The court also noted that, even assuming the instruction was error, defendant could not demonstrate prejudice as the self-defense instruction required the jury to consider the “the proportionality between the degree of force and the surrounding circumstances” before convicting him of first-degree murder. Id. at 23. 

Reaching (3), the court noted that the trial court excluded evidence of the victim’s convictions under Rule of Evidence 404(b) because defendant did not know the nature of the victim’s prior convictions. The majority opinion explained this was error, as the evidence was not being admitted to show the victim’s propensity for violence, but instead to show defendant’s state of mind and fear of being harmed. Applying State v. Jacobs, 363 N.C. 815 (2010), the majority held that “the evidence presented serves a nonpropensity purpose and such evidence should generally be admissible.” Id. at 27. After establishing the evidence was admissible, the majority determined that the error was prejudicial, as “[t]he excluded evidence would most certainly have provided the jury with insight into Defendant’s state of mind, which [was] essential to his claim of self-defense, and whether Defendant’s fear and degree of force was reasonable.” Id. at 28. The exclusion also required redaction of the 911 call and removed the context from testimony about the victim hunting illegally, which would have been relevant to the jury’s deliberation. 

Judge Stading concurred in (2), but dissented from the majority’s opinion in (1) and (3), and would have held that sufficient evidence supported premeditation and deliberation and that it was not error to exclude the victim’s felony status. Id. at 32. 

In this Lincoln County case, defendant appealed his convictions for first-degree murder and possessing a weapon of mass death and destruction, arguing error in denying his requested jury instructions on stand-your-ground and defense of habitation for murder and justification for the possession of a weapon of mass death charge. The Court of Appeals found error in denying the stand-your-ground instruction, but no error in denying the other two. The court vacated the first-degree murder charge and remanded for a new trial and resentencing.

In August of 2017, defendant became involved in a dispute with the owner of his residence and her son. After an extended argument, defendant retrieved a sawed-off shotgun from the residence. At that point, after further arguing, the landlord’s son charged defendant and defendant shot him in the chest, killing him.  

Considering defendant’s arguments, the Court of Appeals explained that the recent decision in State v. McLymore, 380 N.C. 185 (2022), altered the analysis of whether defendant could claim stand-your-ground as a defense under G.S. 14-51.3. Previously, under State v. Crump, 259 N.C. App. 144 (2018), a defendant was disqualified from using force in self defense if they were committing a felony, and the State did not have to prove a connection between the felony and the use of force in self-defense. The Supreme Court held in McLymore that “the State must prove the existence of an immediate causal nexus between the defendant’s disqualifying conduct and the confrontation during which the defendant used force.” Slip Op at 9, quoting McLymore at 197-98.  

In this case, Crump controlled when the trial was held, as McLymore had not been released. After considering the evidence at trial, the court concluded:

[T]here is a reasonable possibility that, had the trial court instructed the jury on the stand-your-ground provision and causal nexus requirement, the jury would have determined that Defendant’s use of deadly force was justified because he reasonably believed that such force was necessary to prevent imminent death to himself and that there was no causal nexus between Defendant’s felonious possession of a weapon of mass death and destruction and his use of force.

Slip Op. at 13. Although the same logic regarding disqualification applied to the requested instruction on defense of habitation, the court found that failing to give this instruction was not error, as the victim was not “in the process of unlawfully and forcefully entering or had unlawfully and forcibly entered [defendant’s] home, including the curtilage of the home.” Id. at 15. Instead, the victim and defendant had spent time together sitting in the living room just a few hours before the shooting and went for a ride together in a car just before the shooting, ending with the parties coming back to park in front of defendant’s trailer. The victim’s mother was the landlord, who was also present at the scene. 

The court also dispensed with the defense of justification instruction, noting that defendant did not provide evidence in the record to support the elements of that claim. 

Judge Zachary concurred by separate opinion to comment on the use of defense of habitation. 

 

 

In this Gates County case, defendant appealed his conviction for first-degree murder, arguing (1) ineffective assistance of counsel, and error in (2) jury instructions and (3) failing to intervene ex mero motu during the State’s closing argument. The Court of Appeals found no ineffective assistance and no error. 

While entering a barbershop in December of 2018, defendant ran into an acquaintance (the victim) with whom he had a contentious relationship. The two exchanged words about defendant’s newborn daughter, where the acquaintance implied that defendant was not the father. Later that night after a series of phone calls, defendant and several friends went over to the acquaintance/victim’s house. After defendant arrived, he and the victim began arguing in the driveway, leading to a fistfight. After several minutes, defendant walked backwards down the driveway while the victim continued to come towards him with his hands up; defendant then shot the victim five times. Defendant fled the scene but was later apprehended walking on the side of the road. At trial, defendant’s counsel told the jury that if they found defendant used excessive force to defend himself in the situation, that would be voluntary manslaughter, not murder. Counsel also stated in closing arguments that defendant intentionally went to the victim’s house, while defendant had testified that he had fallen asleep in his friend’s car and ended up at the house unintentionally. During the State’s closing argument, the prosecutor alerted the jury to the fact that the minimum sentence for voluntary manslaughter was 38 months, suggesting the punishment would not be severe enough for the serious crime committed. When providing jury instructions, the trial court instructed the jury on the aggressor doctrine but did not provide an instruction on stand your ground laws; defendant did not object to the instructions. 

Taking up (1), the Court of Appeals explained that defendant’s first argument regarding his counsel represented conceding guilt without prior consent, a prejudicial error under State v. Harbison, 315 N.C. 175 (1985). Defendant argued that his counsel’s statements regarding use of excessive force and voluntary manslaughter represented a concession or implication of defendant’s guilt. The court disagreed, explaining that defendant was charged with first-degree murder and “the transcript reveals his counsel advocating for the jury to find Defendant either not guilty, or guilty of voluntary manslaughter.” Slip Op. at 7-8. The court also disagreed with defendant that defense counsel contradicting his testimony represented ineffective assistance. The court explained that nothing else in the record supported defendant’s testimony that he fell asleep in the car and inadvertently ended up at the victim’s house. Additionally, the purpose of this contradiction was defense counsel’s attempt to convince the jury that defendant “lacked the requisite intent to be found guilty of first-degree murder.” Id. at 10.  

Reaching (2), the court explained that it reviewed the jury instructions for plain error because defendant did not object during the trial; after review, the court concluded “that jury instructions regarding the aggressor doctrine were warranted, and instructions on stand your ground laws were not.” Id. at 11. Here, testimony in the record suggested that defendant may have initiated the fight with the victim through a phone call prior to his arrival, justifying the use of the aggressor doctrine instruction. In contrast, the court could not find justification for the stand your ground laws instruction, as there was a lack of evidence supporting defendant’s lawful right to be at the residence where the conflict took place.

Finding no error in (3), the court explained that the prosecutor’s arguments were not grounds for trial court intervention, as “[w]hile suggesting that the minimum sentence would not be severe enough punishment might run afoul of the unspoken rules of courtroom etiquette, it is not, in fact, against the law.” Id. at 13. 

In this Cumberland County case, defendant appealed her conviction for assault with a deadly weapon inflicting serious injury, arguing error in altering a pattern jury instruction to include language on the prohibition of excessive force. The Court of Appeals majority agreed, vacating the judgment and remanding for a new trial. 

Defendant and another woman got into a verbal altercation in April of 2021, leading to defendant shooting the victim. Defendant was indicted and came to trial in May of 2022. At trial, witnesses testified that the victim came onto defendant’s front porch, ending with the shooting. Defendant requested the trial court provide North Carolina Pattern Jury Instruction-Criminal (NCPJI) 308.80 on self-defense within a defendant’s home. The trial court modified NCPJI 308.80 by including language “prohibiting the use of ‘excessive force.’” Slip Op. at 2. Defendant objected to the modified instruction but the trial court provided it to the jury, and defendant was subsequently convicted. 

Defendant argued on appeal that the state’s “Castle Doctrine” provided a rebuttable presumption that deadly force was necessary, meaning excessive force was impossible unless the presumption that deadly force was necessary was rebutted by the State. Reviewing defendant’s argument, the Court of Appeals noted that in North Carolina, the “Castle Doctrine” in G.S. 14-51.2 does not prohibit the use of excessive force, and “ultimate force is presumed necessary unless the presumption is rebutted.” Id. at 4. Likewise, North Carolina’s “Stand Your Ground” law in G.S. 14-51.3 permits the use of deadly force and does not require the defendant to retreat if they are in a legally occupied place. Id. Summarizing the two overlapping doctrines, the court noted:

The Stand Your Ground Doctrine overlaps with the Castle Doctrine because the Stand Your Ground Doctrine also applies in Castle Doctrine scenarios, i.e., self-defense situations within the home. So if the Castle Doctrine presumption applies, deadly force is presumed necessary, and you need not retreat. Said differently: If you reasonably believe an intruder is unlawfully entering your home, you have a presumed right to use deadly force under the Castle Doctrine, and you need not retreat under the Stand Your Ground Doctrine

Id. at 5 (citations omitted). The court also made a distinction between State v. Benner, 380 N.C. 621 (2022), and the current case, noting that Benner concerned excessive force under the Stand Your Ground doctrine, not the Castle Doctrine. Id. at 5-6. Summarizing applicable precedent, the court concluded “[u]nder the Castle Doctrine, excessive force is impossible unless the State rebuts the Castle Doctrine presumption, but under the Stand Your Ground Doctrine, excessive force is possible if the defendant acts disproportionately.” Id. at 7. 

The court moved on to the instruction in this case, explaining that “[h]ere, when the trial court conclusively stated that ‘defendant does not have the right to use excessive force,’ the trial court concluded that the State rebutted the Castle Doctrine presumption.” Id. at 8. This was error as it removed the jury’s role in determining whether the Castle Doctrine presumption was rebutted by the State. The court also concluded that the instruction was confusing to the jury, and represented prejudice sufficient to overturn the judgment and order a new trial.

Judge Hampson dissented by separate opinion, and would have held that the instruction was appropriate under applicable North Carolina precedent on the use of force in self-defense scenarios. 

 

 

In this Mecklenburg County case, defendant appealed his convictions for assault with a deadly weapon and discharging a weapon into a building and vehicle in operation, arguing error by (1) allowing the prosecutor to tell potential jurors that probation was within the potential sentencing range and (2) substituting an alternative juror after deliberations began, and (3) ineffective assistance of counsel. The Court of Appeals found no prejudicial error. 

In December of 2019, defendant was involved in an altercation at a Cook Out in Charlotte, eventually firing several shots that hit a car and the exterior wall of the Cook Out. The matter came for trial in March of 2022. On the second day of deliberations, one of the jurors was ill and did not report for jury duty. The trial court substituted an alternate juror and directed the jury to restart deliberations under G.S. 15A-1215(a). Defendant was subsequently convicted and appealed. 

Taking up (1), the Court of Appeals explained that it reviewed a trial court’s management of jury selection for abuse of discretion. Here, the State’s choice to mention probation during voir dire was “questionable” as “a probationary sentence under these facts requires the trial judge to find extraordinary mitigation,” but the statement was “technically accurate” as a statement of law. Slip Op. at 5. The court concluded there was no abuse of discretion in these circumstances as it was not a totally unsupported possibility. Turning to (2), the court explained that defendant argued that “more than twelve persons” were involved in the jury verdict, but defendant failed to preserve the issue for review and the court dismissed it.  

Reaching (3), the court explained that defendant’s ineffective assistance of counsel argument contained two points, (a) that defense counsel should have objected to the trial court’s jury instructions on self-defense, and (b) that counsel should have requested a jury poll. Looking at (3)(a), defendant argued that the instruction did not require the jury to consider whether other patrons at the Cook Out had guns. The court explained that the instruction closely tracked the applicable language of the statute and directed the jury to consider whether “defendant reasonably believed that deadly force was necessary,” which would encompass the consideration of whether other people at the scene had guns. Id. at 9. The court could not conclude that a different instruction specifically mentioning a gun would have led to a different result, meaning the argument could not support the ineffective assistance claim. The court likewise dispensed with (3)(b), explaining that the trial court was not required to poll the jury unless requested, but “both the jury foreman and the other jurors, as a group, affirmed—in open court—that their verdicts were unanimous.” Id. at 10. Because there was no evidence of coercion or inducements to the jury, there was no reasonable probability a jury poll would have created a different result for defendant. 

In this Guilford County case, defendant appealed his convictions for first-degree murder and possession of a firearm by a felon, arguing the trial court erred by (1) denying his motions to dismiss, (2) giving an improper jury instruction on deliberation, and (3) failing to give defendant’s requested “stand your ground” instruction. The Court of Appeals found no error.

In 2017, defendant was at a house drinking alcohol with two other men when an argument broke out between defendant and the eventual victim. The victim yelled in defendant’s face and spit on him, threatening to kill defendant the next time he saw him. Notably, the victim’s threat was to kill defendant at a later time, and the victim stated he would not do so in the house where they were drinking. After the victim yelled in defendant’s face, defendant drew a pistol and shot the victim six times; defendant fled the scene and did not turn himself in until 18 days later.

Reviewing the trial court’s denial of defendant’s motions to dismiss, the court noted that “evidence of a verbal altercation does not serve to negate a charge of first-degree murder when ‘there was other evidence sufficient to support the jury’s finding of both deliberation and premeditation.’” Slip Op. at 8, quoting State v. Watson, 338 N.C. 168, 178 (1994). The court found such evidence in the instant case, with defendant’s prior history of quarrels with the victim, the number of gunshots, defendant’s fleeing the scene and remaining on the run for 18 days, and with defendant’s statements to his girlfriend regarding his intention to deny the charges.

The court then turned to the disputed jury instructions, first explaining that defendant’s request for an additional explanation on deliberation beyond that contained in Pattern Jury Instruction 206.1 was based on a dissenting opinion in State v. Patterson, 288 N.C. 553 (1975) which carried no force of law, and the instruction given contained adequate explanation of the meaning of “deliberation” for first-degree murder. Slip Op. at 11. The court next considered the “stand your ground” instruction, comparing the trial court’s instruction on self-defense to the version offered by defendant. Looking to State v. Benner, 380 N.C. 621 (2022), the court found that “the use of deadly force cannot be excessive and must still be proportional even when the defendant has no duty to retreat and is entitled to stand his ground.” Slip Op. at 14. The court also noted that the “stand your ground” statute requires proportionality in defendant’s situation, explaining “[d]efendant could use deadly force against the victim under [N.C.G.S. §] 14-51.3(a) only if it was necessary to prevent imminent death or great bodily harm, i.e., if it was proportional.” Id. at 16-17. Finally, the court determined that even if the trial court erred in failing to give the instruction, it was not prejudicial, as overwhelming evidence in the record showed that defendant was not under threat of imminent harm, noting “[l]ethal force is not a proportional response to being spit on.” Id. at 17.

In this Guilford County case, the defendant and the victim were cousins. They went out for an evening together, each accompanied by a girlfriend. The victim had a history of assaulting his girlfriend, and again that night became enraged and began beating her. The defendant shot the victim twice in the chest. He was charged with first-degree murder, possession of a firearm by a convicted felon, and being a violent habitual felon. He pled guilty to the gun charge and went to trial on the others. The jury convicted him of second-degree murder and of being a violent habitual felon. He was sentenced to life in prison and appealed.

The principal issue concerned the jury instructions. The defendant asked for an instruction on the defense of another. The trial court ruled that he was disqualified from claiming the defense under G.S. 14-51.4, which makes that defense off-limits to a person who “[w]as attempting to commit, committing, or escaping after the commission of a felony,” in this case possession of a firearm by a convicted felon. The trial judge therefore gave only a “limited” instruction on defense of others. The reviewing court said that this was error under State v. McLymore, 2022-NCSC-12, __ N.C. __ (2022), a case decided after the defendant’s trial. McLymore ruled that a person is disqualified under G.S. 14-51.4 only if there is a causal nexus between the felony and the need to use defensive force. There was no such nexus here, so the defendant was not disqualified and the jury should have been instructed on the defense of another.

The Court of Appeals rejected the defendant’s argument that the trial court erred in denying his motion to dismiss based on defense of another. There was sufficient evidence that the defendant did not act in defense of another to submit the case to the jury, including evidence that the defendant was frustrated with the victim and that the victim’s girlfriend did not suffer severe injuries. Therefore, the court ordered a new trial with proper jury instructions.

State v. Hicks, 283 N.C. App. 74 2022-04-19 rev’d per curiam, 136PA22, ___ N.C. ___ (Sep 1 2023)

In this Randolph County case, the defendant was convicted of second-degree murder for an incident in which she killed Caleb Adams, a romantic partner. On the day of the incident, Caleb stormed into her residence while under the influence of methamphetamine and began pushing, punching, kicking, and shoving her before the defendant shot him twice in the back. At trial, the judge instructed the jury on the aggressor doctrine over the defendant’s objection. The defendant argued on appeal that the trial court erred in instructing the jury on the aggressor doctrine because the evidence presented did not support any inference that she was the aggressor within the meaning of G.S. 14-51.4(2) (stating that self-defense under 14-51.2 and -51.3 is not available to a person who initially provokes the use of force against himself or herself unless an exception applies). Applying the relevant factors (the circumstances that precipitated the altercation, the presence or use of weapons, the degree and proportionality of the parties’ use of defensive force, the nature and severity of the parties’ injuries, and whether there is evidence that one party attempted to abandon the fight), the Court of Appeals concluded that the trial court erred in instructing the jury on the aggressor doctrine. The victim burst into the defendant’s residence even though the defendant told him not to come, he yelled at her and told her he was going to kill her, and he initiated a physical confrontation. Though the victim entered the home unarmed, he briefly took possession of the victim’s firearm before relinquishing it to her; she armed herself with it only after the victim continued to scream at her, and used it only after he physically assaulted her. The Court rejected the State’s argument that the defendant’s threat to send sexually explicit photographs to his wife on the night before the shooting made her the aggressor. The threat happened seven hours before the shooting, and therefore was not made at the time the self-defense occurred. Additionally, the Court declined to hold that a threat to expose one’s extramarital affair is conduct demonstrating an aggressive willfulness to engage in a physical altercation. The Court also rejected the State’s argument that the act of shooting the victim in the back necessarily made the defendant the aggressor. The Court distinguished State v. Cannon, 341 N.C. 79 (1995), in which the aggressor doctrine properly applied when the victim was actively retreating from the affray. In the absence of evidence that the defendant was the aggressor, the trial court erred in giving the aggressor instruction. The Court therefore ordered a new trial.

Having ordered a new trial, the Court did not reach the defendant’s argument that the trial court admitted certain evidence in error.

The defendant lived with his parents in a mobile home trailer in Craven County. The owner of the trailer, Ms. Patterson, lived on the property in a different mobile home and was lifelong friends with the defendant and his parents. Ms. Patterson lived with one of the defendant’s nephews pursuant to an informal arrangement with child’s father, although the Division of Social Services (“DSS”) was investigating the child’s safety there. Ms. Patterson and the child’s biological mother were involved in an altercation at the child’s school during an orientation session. According to the defendant, once Ms. Patterson returned from the school, she called out for the defendant to come to her trailer. The defendant claimed to have seen a black object in her hand shortly beforehand, which he believed to be a gun. When the defendant arrived in the trailer, Ms. Patterson expressed concern that DSS would remove the child from her home and became upset, using obscenities and “throwing her hands around.” The defendant thought he saw the same black object in the woman’s hands, and immediately hit her in the head with a baseball bat. He initially claimed to have hit her once and then to have blacked out. The next day, the defendant made several statements to various people that he had killed a woman with a bat. He did not mention being in fear or that the woman had a gun, and no gun was found in Ms. Patterson’s trailer. The defendant had blood on his clothes and appeared drunk when making these remarks. Later that evening, the defendant called 911 and reported that he had killed the woman but did not recall why he had killed her. During interrogation by the police, the defendant admitted to hitting the woman “a couple of times” and then “three or four times” with the bat and stated that he killed her because she threatened to evict his family. Blood splatter in the trailer indicated multiple blows, and the victim had no defensive injuries.

At trial, the defendant requested a jury instruction for perfect self-defense. The trial court declined to instruct on self-defense or manslaughter but agreed to instruct on second-degree murder and voluntary intoxication. The jury convicted on second-degree murder and the other offenses, and the defendant appealed. (1) Although the instructions requested by the defense were submitted in writing and argued at the charge conference, defense counsel twice acknowledged his agreement with the ultimate instructions. This was insufficient to preserve the issue for appellate review, and the court therefore reviewed the jury instructions for plain error only. (2) The trial court did not err, plainly or otherwise, in failing to instruct on manslaughter or perfect self-defense. The only evidence in support of the defendant’s reasonable fear of imminent death or serious bodily harm was his testimony that the victim was cursing, throwing her hands about, and that he thought he saw a gun in her hands. He did not testify that the woman threatened him, and in his numerous statements to laypeople and law enforcement he never mentioned being in fear or that the woman had a gun. “Even taking this testimony in the light most favorable to defendant, defendant has failed to establish that he believed it was reasonably necessary to kill Patterson to save himself from death or great bodily harm.” Acker Slip op. at 15. (3) The trial court stated during the charge conference that the defendant’s testimony on his need for self-defense amounted to “fantasy.” The defendant argued that this comment was an impermissible assessment of the defendant’s credibility. The court disagreed, noting that the comment was made during the charge conference, outside the presence of the jury, and “was simply . . . the trial court’s reasoning in denying defendant’s request.” Id. at 16. (4) Even if the trial court erred in refusing to instruct on imperfect self-defense and manslaughter, the defendant was not prejudiced as a result. In the words of the court: “The evidence of defendant’s guilt, most of it from statements he freely and voluntarily made, was overwhelming. Accordingly, we hold that the trial court did not plainly err in declining to instruct the jury on self-defense and manslaughter.” Id. at 17. There was therefore no error in the case.

In this case where the defendant and his neighbor exchanged gunfire after an argument about the victim’s dogs killing the defendant’s cat, the trial court erred by denying the defendant’s request for a jury instruction on self-defense.  In the light most favorable to the defendant, the evidence at trial tended to show that the defendant confronted the victim at the victim’s residence because the victim’s dogs had killed the defendant’s cat and were still at large.  During this confrontation, the victim struck the defendant with a piece of lumber, causing the defendant to brandish a pistol he was carrying legally.  The defendant did not threaten to use the pistol or point it at the victim.  The victim then went inside his residence, retrieved his own pistol, and came back outside firing it at the defendant, who was at that time walking away.  The defendant, who was grazed by a bullet, returned fire, striking the victim in the leg.  The State argued that the defendant was not entitled to an instruction on self-defense because he was the aggressor by virtue of brandishing his firearm.  The court held that a jury could have determined that the defendant was permitted to brandish his firearm, and did not thereby become the aggressor, because he had a reasonable belief it was necessary to protect himself from death or great bodily harm after the victim struck him with the lumber.  Consequently, it was reversible error for the trial court to deny the defendant’s request for a self-defense jury instruction.

The court went on to determine that even assuming for argument that the defendant was the initial aggressor by virtue of brandishing his firearm, he regained the right to use force in self-defense when the victim reemerged from the residence and fired on him as the defendant was in the process of walking away from the residence towards his vehicle to leave.  The court explained that walking away and towards his vehicle clearly announced the defendant’s intention to withdraw from the encounter.

Judge Tyson fully concurred with the majority opinion but wrote separately to address additional issues the defendant raised on appeal but that the majority did not reach.  Those additional issues were: (1) whether the trial court erred by limiting the defendant’s cross-examination about the victim’s prior felony conviction and his possession of a firearm; (2) whether the trial court erred in preventing inquiry into an agreement between the State and the victim in exchange for his testimony; (3) whether the trial court erred by preventing the defendant from testifying about an after-the-fact reconciliation with the victim.

In this assault with a deadly weapon inflicting serious injury case, the trial court did not err by declining to instruct the jury on the defendant’s requested instruction on the defense of habitation. The victim was riding on his ATV when the defendant attacked him from behind and stabbed him with a steak knife, thinking the victim was on his (the defendant’s) property. During the attack, the victim said “I don’t know who you are.” After the victim identified himself and told the defendant he had permission to ride on the property, the defendant renewed his attack. The defendant testified that the purpose of the attack was get an intruder off his premises, although he also said that he was not aware of the property line. The trial court denied the defendant’s request to instruct the jury on self-defense and defense of habitation, based on the fact that the the victim was not operating the ATV in the curtilage of the defendant’s home and the defendant did not even know where the property line was. The Court affirmed the trial court’s denial of the defendant’s request for an instruction on defense of habitation when there was no evidence that the victim had entered or was in the process of entering his home as required by G.S. 14-51.2(b)(1). Though the definition of “home” includes the home’s curtilage, it does not include an area 200–250 feet away from the defendant’s residence, and apparently not on the defendant’s property at all.

The defendant was convicted after a jury trial of first-degree murder, attempted first-degree murder, and other serious felony charges after he shot and killed his former girlfriend and then pistol-whipped and fired a gun at another woman, a registered nurse. The court rejected the defendant’s argument that the trial court erred by failing to give a self-defense instruction despite the defendant’s request for instructions on both perfect and imperfect self-defense. The defendant’s testimony that he did not recall shooting the first victim and his expert’s testimony that he acted involuntarily defeated his self-defense argument.

The defendant shot and killed a police officer while the officer was approaching the defendant’s car to serve arrest warrants on him in Robeson County. The defendant claimed that he had been the victim of several recent attempted murders and was “on edge,” so that when he saw the plainclothes officer approaching with a gun on his waist, he fired on the officer from his car. The defendant testified that he thought the victim-officer was going to kill him when he saw the officer’s gun but acknowledged that the gun was not raised or pointed at him. The trial court refused to instruct the jury on self-defense or voluntary manslaughter, finding that the defendant was not under the threat of deadly force. The defendant was convicted of second-degree murder.

The trial court must instruct on all “substantial features” supported by the evidence in a case. If the defendant presents competent evidence in support of self-defense, viewed in the light most favorable to the defendant, the jury should be instructed on self-defense. “Competent evidence of self-defense is evidence that it ‘was necessary or reasonably appeared to be necessary’ for the defendant ‘to kill his adversary in order to protect himself from death or great bodily harm.’” Id. at 8. The reasonableness of a defendant’s belief of threat is judged by an objective standard. Here, even in the light most favorable to the defendant, the evidence did not establish an objective reasonable belief of death or serious harm as a matter of law. The defendant’s testimony showed that the defendant saw a gun as the officer left his vehicle, that the officer looked at the defendant “real mean,” and that the gun was not pointed at the defendant. “In the mind of a person of ordinary firmness, this evidence would not permit the use of deadly force on a complete stranger getting out of a nearby car. Accordingly, the trial court properly declined to give the requested instruction on self-defense.” Id. at 11.  For the same reason—insufficient evidence supporting self-defense (perfect or imperfect)—the defendant was also not entitled to an instruction on voluntary manslaughter. The trial court was therefore unanimously affirmed.

State v. Leaks, ___ N.C. App. ___, ___ S.E.2d ___ 2020-03-03 modified and affirmed on other grounds, ___ N.C. ___, 2021-NCSC-123 (Oct 29 2021)

In this second-degree murder case, the trial court (1) did not abuse its discretion by denying the defendant’s motion for a jury view; (2) did not err with respect to a jury instruction on self-defense; and (3) correctly sentenced the defendant at prior-record level IV.

The trial court did not abuse its discretion by denying the defendant’s motion requesting a jury view of the crime scene, which the defendant argued was important to give the jury “an accurate view of what [the testifying eyewitnesses] would have been able to see and what kind of obstruction would have been in the line of sight that they would have, the area where this was occurring, as well as the distance involved[.]”. In reaching its reasoned decision to deny the motion, the trial court considered the availability of photographs, diagrams, and other material” and noted that the alleged crime occurred during daylight.

As to the instruction on self-defense, the defendant argued that the trial court erred in instructing the jury that the defendant “believed it was necessary to kill the victim in order to save the defendant from death or great bodily harm” and instead should have instructed that the defendant “believed it was necessary to use deadly force against the victim,” a modification contemplated by the pattern jury instruction on self-defense in murder cases in situations where the evidence shows that a defendant intended to use deadly force to disable but not to kill the victim (N.C.P.I. – Crim. 206.10 n.4).  The court recognized that this argument raised the unsettled issue of the extent to which the 2011 enactment of G.S. 14-51.2 and G.S. 14-51.3, creating statutory rights to self-defense, supplemented or superseded North Carolina common law concerning self-defense and defense of another.  Prior to the 2011 statutory enactments, the North Carolina Supreme Court in State v. Richardson, 341 N.C. 585, 592-94 (1995) held that “it is not necessary to change the self-defense instruction to read necessary ‘to shoot or use deadly force’ in order to properly instruct a jury on the elements of self-defense.”  The defendant argued that, notwithstanding Richardson, it was error to use the “to kill” language because G.S. 14-51.3 does not require a person to believe it is necessary to kill his or her assailant in order to save himself or herself from death or bodily harm and instead authorizes the use of deadly force if a person is “in any place he or she has the lawful right to be” and “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . . .”  Finding itself bound by Richardson, the court determined that the trial court did not err in its instruction to the jury on self-defense.

With regard to the trial court’s calculation of the defendant’s prior-record-level points for sentencing purposes, a calculation based upon certified copies from the Clerk of Superior Court of the defendant’s criminal records, the court found that the trial court did not err by adding one prior-record-level point for a misdemeanor assault with a deadly weapon conviction that resulted in a PJC and did not err in adding one prior-record-level point for misdemeanor breaking and entering and injury to real property offenses that were consolidated and to which the defendant pleaded guilty.  Even if the trial court erred in adding two prior-record-level points instead of one point by treating another breaking and entering conviction as a felony rather than as a misdemeanor, the assumed error was harmless because it did not change the defendant’s prior-record level.

Defendants Molly Martens Corbett (“Molly”) and Thomas Michael Martens (“Tom”), daughter and father, were convicted of second degree murder in the death of Molly’s husband, Jason Corbett (“Jason”). Evidence at trial established that Tom attempted to stop Jason from choking Molly by hitting Jason with an aluminum baseball bat. Molly also hit Jason with a brick paver. Jason’s skull was fractured from multiple blows and he died at the scene. Jason’s children from a previous marriage, Jack and Sarah Corbett, ages 11 and 8, were at home and sleeping at the time of the altercation. Jack and Sarah’s mother had died unexpectedly when they were very young, and they considered Molly to be their mother.

(1) Defendants argued that the trial court abused its discretion by denying their Motion for Appropriate Relief (MAR), as well as their request for an evidentiary hearing, because competent evidence demonstrated that certain jurors “committed gross and pervasive misconduct in their private discussions of the case”; jurors engaged in “private discussions” amongst themselves prior to deliberations; and several jurors’ statements during post-trial media interviews showed that they improperly considered and formed opinions about Molly’s mental health. The court rejected this argument, characterizing the defendants’ allegations as being, at best, general, speculative, and conclusory. Furthermore, the court concluded that even if the trial court were to hold an evidentiary hearing, which it was not required to do, precedent prohibiting verdict impeachment would bar the defendants from presenting any admissible evidence to prove the truth of their allegations.

(2) Defendants asserted that the State failed to present substantial evidence to rebut or contradict Molly’s exculpatory handwritten statement, which the State introduced, establishing that Molly and Tom acted in lawful self-defense and defense of others. The Court of Appeals disagreed.

The State was required to present substantial evidence sufficient to convince a rational trier of fact that the defendants did not act in self-defense. The appellate court determined that the case was not entirely predicated on Molly’s statement that she and Tom acted in self-defense and defense of each other. Rather, the State presented substantial circumstantial evidence from which a rational juror could reach a contrary conclusion, including that: (1) Jason suffered at least twelve blows to the head; (2) Tom had no visible injuries and Molly had only a “light redness” on her neck; (3) Jason was unarmed when the altercation occurred; (4) Jason’s children remained asleep throughout the entire altercation; (5) EMS, paramedics, and law enforcement responders observed that some of the blood on Jason’s body had dried, and that Jason’s body felt cool; (6) Tom told a coworker that he hated Jason; and (7) Jason had a life insurance policy, of which Molly was the named beneficiary.

(3) The Court of Appeals concluded, over a dissent, that certain evidentiary errors were so prejudicial as to inhibit the defendants’ ability to present a full and meaningful defense.

(a) The Court of Appeals held that the trial court erroneously concluded that statements Jack and Sarah Corbett made to workers at a children’s advocacy center were inadmissible under the hearsay exception for medical diagnosis or treatment. At the time of trial, Jack and Sarah had been taken to Ireland to live with their aunt and uncle. The appellate court determined that their statements at the advocacy center satisfied the two-part test for admissibility established in State v. Hinnant, 351 N.C. 277 (2000):  (1) the children made the statements to obtain medical diagnosis or treatment; and (2) the statements were reasonably pertinent to medical diagnosis or treatment. The court explained that the child-friendly atmosphere and the separation of the examination rooms did not indicate that the children’s statements during the interviews were not intended for medical purposes. The children were informed before their interviews that they would be receiving medical interviews together with physical examinations as part of their full evaluations at the facility. The interviewers asked non-leading, open-ended questions, instructed the children that they should not “guess at anything” and emphasized the overall significance of the child medical evaluations that they would be receiving. In addition, the court concluded that the children’s statements were reasonably pertinent to medical treatment or diagnosis. Following their forensic medical interviews, Sarah and Jack were examined by a pediatrician who diagnosed both children as “victim[s] of child abuse based on exposure to domestic violence” and recommended that they “receive mental health services” as treatment.

Moreover, the court concluded that even if the children’s forensic medical interview statements were inadmissible under the medical diagnosis or treatment exception to the rule against hearsay, they (along with statements the children made to DSS workers) were admissible under the residual hearsay exception.

(b) Stuart James, the State’s expert witness in bloodstain pattern analysis, testified at trial about untested blood spatter on the underside hem of Tom’s boxer shorts and the bottom of Molly’s pajama pants. The defendants argued that this testimony was not the product of reliable principles and methods applied reliably to the facts of this case. The Court of Appeals agreed.

While James was “unquestionably qualified to provide expert testimony on the subject” of blood spatter, he did not follow the reliability protocol establish in a treatise he coauthored on the subject. First, these particular stains were not tested for the presence of blood. Second, though James said it was the “best practice” for an analyst to view a photograph of the person wearing the blood-spattered clothes, he never viewed a photograph of Tom “wearing just the boxer shorts.” James further testified that the State provided him with just one photograph of Molly wearing the pajama pants, and that it was not readily apparent from that photograph how the pants actually fit Molly on the night of the incident. The court found James’s failure to follow the reliability standards and protocol prescribed in his own treatise as inherently suspect. It concluded that James’s testimony was based upon insufficient facts and data, and, accordingly, could not have been the product of reliable principles and methods applied reliably to the facts of the case.

The court determined that James's testimony “had the powerful effect of bolstering the State’s claim that Jason was struck after and while he was down and defenseless.” But, given the flawed methodology, the  testimony could only serve to unduly influence the jury to reach a conclusion that it was fully capable of reaching on its own.

(c) The defendants argued that the trial court erred in striking Tom’s testimony that, during the altercation, he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” The Court of Appeals agreed. The court reasoned that Molly’s statement was admissible for the non-hearsay purpose of illustrating Tom’s then-existing state of mind. This was “a particularly relevant issue” in light of the defendants’ claims of self-defense and defense of another.

(d) Tom argued that the trial court committed reversible error by instructing the jury that he would not be entitled to the benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with Jason. The Court of Appeals agreed.

First, the appellate court stated that the trial court could not have based its ruling on Tom’s decision to arm himself with the baseball bat before joining the altercation. The mere fact that a defendant was armed is not evidence that he was the aggressor if he did not unlawfully use his weapon.

Moreover, the court deemed it significant that Jason was the first to employ deadly force. Tom testified that from the moment he opened the bedroom door, “Jason had his hands around Molly’s neck,” and he said he was going to kill her. Jason subsequently put Molly in a “very tight chokehold” and Tom noticed that Molly “was no longer wiggling. She was just weight, being dragged back into the hallway.”

Because Tom did not aggressively and willingly enter into the fight without legal excuse or provocation, the Court of Appeals determined that the trial court erred by instructing the jury on the aggressor doctrine. The error, the court reasoned, very likely prejudiced Molly as well as Tom, since the jury was instructed that it could find her guilty under an acting-in-concert theory.

One judge concurred in part and dissented in part. The judge concurred that the trial court did not err by denying defendants’ request for an evidentiary hearing on their MAR and the MAR itself or by denying defendants’ motions to dismiss for insufficient evidence. The judge dissented from the remainder of the majority opinion leading to its conclusion that the defendants are entitled to a new trial.

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.

State v. Copley, ___ N.C. App. ___, 828 S.E.2d 35 2019-05-07 rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Apr 3 2020)

In this first-degree murder case involving a shooting outside of the defendant’s home where the Court of Appeals opinion was reversed on other grounds, the court noted an error in the trial court’s jury instructions with respect to defense of habitation. Noting a problem in the current pattern jury instruction on defense of habitation, the court stated:

In the instant case, the trial court failed to provide a definition for “home” in the jury instructions. While not argued, a discrepancy exists between N.C.P.I. Crim. 308.80 and the controlling N.C. Gen. Stat. § 14-51.2. The jury could have potentially believed that Defendant could only have exercised his right of self-defense and to defend his habitation only if [the victim] was attempting to enter the physical confines of Defendant’s house, and not the curtilage or other areas.

            The absence of a definition for “home” or “curtilage” in the pattern instruction, and the reference to State v. Blue and the now repealed statute, is not consistent with the current statute. The pattern instruction should be reviewed and updated to reflect the formal and expanded definition of “home” as is now required by N.C. Gen. Stat. § 14-51.2.

[Note: I will bring this issue to the attention of the Pattern Jury Committee]

In this assault case, the trial court committed prejudicial error by failing to instruct the jury on self-defense. Aubrey Chapman and his friend Alan McGill attended a party. During the party, the defendant punched McGill in the face. Chapman saw the confrontation and hit the defendant. Security escorted the defendant out of the venue. Chapman followed, as did others behind him. The evidence conflicts as to what occurred next. Chapman claimed that the defendant charged him with a box cutter. Reggie Penny, a security guard who was injured in the incident, said that people rushed the defendant and started an altercation. Sherrel Outlaw said that while the defendant had his hands up, a group of guys walked towards him. When the defendant took a couple of steps back, someone hit him in the face and a group of guys jumped on him. Outlaw did not see the defendant with a weapon. The trial court denied the defendant’s request for a self-defense instruction. The defendant was convicted and appealed. The court found that the trial court erred by failing to instruct the jury on self-defense, finding that the defendant presented competent evidence that he reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm. Citing Penny and Outlaw’s testimony, it held that the evidence is sufficient to support the defendant’s argument that the assault on him gave rise to his reasonable apprehension of death or great bodily harm. Although the State correctly asserts that some of the evidence shows that the defendant was the initial aggressor, conflicting evidence indicates that he was not brandishing a weapon and was attacked without provocation. The court noted that it must view the evidence in the light most favorable to the defendant. The court went on to conclude that the trial court’s error was prejudicial.

In a case where the defendant was found guilty of second-degree murder, assault with a deadly weapon, and discharging a firearm into an occupied dwelling, the trial court committed prejudicial error by failing to include no duty to retreat and stand your ground provisions in the jury instruction on self-defense. Viewed in the light most favorable to the defendant, the defendant was aware of the victim’s violent and dangerous propensities on the night of the shooting. The defendant’s testimony established, among other things, that the victim had achieved high-ranking gang membership by killing a rival gang member, that the defendant saw the victim rob others multiple times, and that he knew the victim always carried a gun. The defendant’s knowledge of the victim’s violent propensities, being armed, and prior acts support a finding that the defendant reasonably believed it was necessary to use deadly force to save himself from death or great bodily harm. Prior to the shooting, the victim stood outside of the defendant’s apartment with two others and waited to confront the defendant about an alleged prior incident. The defendant also testified that he borrowed a gun for protection. When the victim noticed the defendant walking towards his apartment, the victim told the defendant, “this is war, empty your pocket”, continued to advance after the defendant fired two warning shots, and lunged at the defendant while reaching behind his back towards his waistband. In the light most favorable to the defendant, a jury could conclude that the defendant actually and reasonably believed that the victim was about to shoot him and it was necessary to use deadly force to protect himself. The fact that the defendant armed himself does not make the defendant the initial aggressor. Although law enforcement officers did not find a gun when they searched the victim’s body, evidence presented at trial suggested that he may have been armed. Thus, a jury could infer that the defendant reasonably believed the victim was armed at the time of the altercation.

Although the trial court properly gave a self-defense instruction in this shooting into an occupied vehicle and injury to personal property case, it erred by failing to give a no duty to retreat instruction. Viewed in the light most favorable to the defendant, the evidence showed that the defendant was driving at night in wet conditions with a potential for ice, along a meandering two-lane highway with few street lights. The victim Parker came up behind the defendant and persistently tailgated the defendant’s vehicle with bright lights, while other traffic was traveling in front of the defendant. Although Parker had an opportunity to pass the defendant, he pulled up alongside the defendant. When the defendant slowed down, Parker also slowed and “paced” him, rather than passing, and veered closer towards the defendant’s vehicle. Parker moved his vehicle into the defendant’s lane and was driving so close to the defendant’s vehicle, that the defendant could have reached out from his driver’s side window and touched Parker’s tire. The passenger-side tires of the defendant’s vehicle were forced off the road onto the muddy shoulder. Fearing that he would lose control of his vehicle and suffer injury, the defendant shot at Parker’s tire to disable his vehicle. The trial court gave a self-defense instruction without language about duty or lack of duty to retreat. The defendant was found guilty and appealed.

            The court first held that the trial court properly instructed on self-defense, even though there was no intent to kill in this case. It noted that although the state Supreme Court has held that self-defense is not available where the defendant claims that the victim’s death was an accident, those cases were distinguishable and not controlling where, here, it is undisputed that the defendant intended to “strike the blow”—to shoot Parker’s tire. The court explained that the defendant was not required to show that he intended to kill Parker; he only needed to show the intent to strike the blow by shooting at Parker’s vehicle.

            Next, the court concluded that the trial court committed prejudicial error by denying the defendant’s request for an instruction on no duty to retreat. The court reasoned: “Defendant was present in a location he lawfully had a right to be: driving inside his vehicle upon a public highway. 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.”

In this voluntary manslaughter case, the trial court committed prejudicial error by denying the defendant’s request for a jury instruction on defense of habitation. The trial court denied the defendant’s requested instruction, finding no evidence that the victim was “trying to break in.” According to the trial court, the defendant’s evidence demonstrated that he was attempting to prevent injury to himself, not trying to prevent someone coming into his curtilage or home. The trial court’s ruling was erroneous. As explained in the “Note Well” in the jury instruction, the use of force is justified when the defendant is acting to prevent a forcible entry into the defendant’s home or to terminate an intruder’s unlawful entry into the home, a term that includes the curtilage. Here, the victim was standing within the curtilage of the defendant’s property when the defendant fired the fatal shot. The court rejected the State’s argument that the defendant was not entitled to the instruction because the victim never came onto the defendant’s porch and never tried to open the door to the defendant’s trailer, finding that it “defies the plain language of the statute.” Despite numerous requests to leave and multiple orders from law enforcement, the victim continued to return to the curtilage of the defendant’s property while repeatedly threatening bodily harm. Thus, the trial court erred by denying the defendant’s request for the jury instruction, and this error required reversal.

Where there was evidence that the defendant was the aggressor, the trial court did not err by instructing the jury on the aggressor doctrine as it relates to self-defense. The court noted that based on the defendant’s own testimony regarding the incident, it was possible for the jury to infer that the defendant was the initial aggressor. Additionally, the victim was shot twice in the back, indicating either that the defendant continued to be the aggressor or shot the victim in the back during what he contended was self-defense. As a result, the trial court properly allowed the jury to determine whether or not the defendant was the aggressor.

 

State v. Crump, ___ N.C. App. ___, 815 S.E.2d 415 2018-04-17 rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Dec 18 2020)

No prejudicial error occurred with respect to the trial court’s self-defense instructions. With respect to an assault with a deadly weapon with intent to kill charge, the defendant raised the statutory justifications of protection of his motor vehicle and self-defense. The trial court found that the defendant’s evidence did not show that his belief that entry into his motor vehicle was imminent and gave the pattern jury instruction N.C.P.I.-Crim 308.45 (“All assaults involving deadly force”) and not N.C.P.I.-Crim. 308.80 (“defense of motor vehicle”), as requested by defendant. The trial court instructed the jury pursuant to N.C.P.I.-Crim 308.45, incorporating statutory language indicating that self-defense is not available to one who was attempting to commit, was committing, was escaping from the commission of a felony. The State requested that the trial court also define for the jury the felonies that would disqualify the defendant’s claim of self-defense. The trial court agreed and instructed the jury, using the language of G.S. 14-51.4(1), that self-defense was not available to one who engaged in specified felonious conduct. On appeal, the defendant first argued that G.S. 14-51.4(1) requires both a temporal and causal nexus between the disqualifying felony and the circumstances which gave rise to the perceived need to use defensive force. The court agreed that the statute contains a temporal requirement but disagreed that it contains a causal nexus requirement.

Second, the defendant argued that the inclusion of assault with a deadly weapon with intent to kill as a qualifying felony was circular and therefore erroneous. The court agreed, but found the error was not prejudicial.

In a case where the defendant was charged with attempted murder and assault, the trial court did not err by instructing the jury that the defendant could not receive the benefit of self-defense if he was the aggressor. The incident in question involved a shooting; the defendant argued that he shot the victim in self-defense. The two sides presented differing evidence as to what occurred. During the charge conference, defense counsel objected to the inclusion of the aggressor doctrine in the pattern jury instruction for self-defense. The defendant argued that because the victim had approached his car before the defendant said anything, the victim initiated the fight. The State contended that because its evidence showed only that the victim told the defendant to step out of his vehicle, the question should go to the jury as to who was the aggressor. The trial court overruled the defendant’s objection and gave the aggressor instruction. The jury found the defendant guilty on the assault charge. The court noted that the law does not require that a defendant instigate a fight to be considered an aggressor. Rather, even if his opponent starts a fight, a defendant who provokes, engages in, or continues an argument which leads to serious injury or death may be found to be the aggressor. Where there is conflicting evidence as to which party was the aggressor, the jury should make the determination. Here, the State’s evidence tended to show that the defendant was the aggressor. The victim testified that he told the defendant to step out of his car so they could talk, he did not threaten the defendant, touch the defendant’s car or approach the defendant. And the victim was unarmed. After speaking with the defendant, the victim testified that he stepped into the yard to allow the defendant to exit his car, only to be shot by the defendant. Although the defendant’s testimony materially differed from the State’s evidence, the issue was one for the jury.

In this murder case, the court rejected the defendant’s argument that the trial court should have granted the defendant’s motion to dismiss because the State failed to present substantial evidence that the defendant did not act in self-defense. Ample evidence contradicted the defendant’s claim of self-defense, including that the victim had medical issues and was so frail that the VA had approved a plan to equip the victim and the defendant’s home with a wheelchair lift, ramps, and a bathroom modification; the defendant was physically active; after the victim was twice wounded by gunshots, the defendant stabbed him 12 times; and the victim suffered minimal injuries compared to the nature and severity of the victim’s injuries.

In this felony-murder case where the underlying felony was discharging a firearm into an occupied vehicle, the trial court did not err by declining to instruct on self-defense. The court rejected the defendant’s argument that a reasonable jury could have found that the shooting constituted perfect self-defense. Viewing the facts in the light most favorable to the defendant, the first three elements of self-defense were present: the defendant testified that he believed two individuals were about to shoot him or another person; a reasonable person would have so concluded; and until he fired, the defendant had not attacked or threatened the victim in any way. However, the defendant’s own testimony indicated that he did not shoot to kill. “Such an intent is required for a trial court to instruct a jury on perfect self-defense.”

State v. Clonts, ___ N.C. App. ____, 802 S.E.2d 531 2017-06-20 aff'd on other grounds, ___ N.C. ___, 813 S.E.2d 796 (Jun 8 2018)

The trial court did not err by failing to instruct the jury on imperfect self-defense and imperfect defense of others where the defendant did not request that the trial court give any instruction on imperfect self-defense or imperfect defense of others. In fact, when the State indicated that it believed that these defenses were not legally available to the defendant, defense counsel agreed with the State. The defendant cannot show prejudice from invited error. 

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