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., 12/02/2024
E.g., 12/02/2024

In this Mitchell County case, defendant appealed his conviction for felony child abuse inflicting serious bodily injury, arguing (1) error in denying his motion to dismiss, (2) plain error in failing to instruct the jury on the defense of accident, and (3) error in denying his requested jury instructions on lesser-included offenses. The Court of Appeals found no error or plain error.  

In October of 2019, defendant brought his daughter to the emergency room with a head injury. During an interview with DSS at the hospital, defendant said the injury occurred when he tripped carrying his daughter and her head hit the bar on a Pack’n Play. Expert testimony disputed defendant’s version of the events, as the child “had significantly more and significantly more severe injuries than would be expected from a short fall, from falling from the father’s arms into a Pack ’N Play, or even onto the floor.” Slip Op. at 6. The child suffered permanent brain damage and loss of mobility on the left side of her body. 

The Court of Appeals considered (1), defendant’s argument that the State presented insufficient evidence of his intent to inflict the child’s injuries. The court pointed out that intent is normally proven by circumstantial evidence. Here, the medical reports reflected significant injuries to the child’s brain, and expert testimony found those injuries “were consistent with physical abuse.” Id. at 10. These represented substantial evidence that defendant “intentionally inflicted serious bodily injury to [the child,]” justifying the denial of defendant’s motion. Id.

Moving to (2), the court noted that defendant did not object to the jury instructions, meaning the review was for plain error. Assuming arguendo that it was error that the jury was not instructed on the defense of accident, the court could not find prejudice, as the elements of felony child abuse inflicting serious bodily injury required the jury to find defendant intentionally injured the child. The court explained that the jury heard testimony from defendant that the events were an accident, and from the State’s expert that the injuries were indicative of child abuse. After hearing the two competing explanations, “[t]he jury thus found beyond a reasonable doubt that Defendant’s testimony was not credible by finding him guilty of felony child abuse inflicting serious bodily injury.” Id. at 14. Providing an instruction on the defense of accident would not have impacted the outcome. 

Finally, in (3), the court explained that instruction on lesser-included offenses is not required “’when the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime.’” Id. at 15, quoting State v. Millsaps, 356 N.C. 556, 562 (2002). Here, the distinguishing element between the charge and lesser offenses was “the level of harm inflicted upon the child.” Id. The court concluded that “[h]ere, there was no evidence presented at trial from which the jury could have rationally found that Defendant committed the lesser offense[s] . . . because the State’s evidence is positive as to the element of serious bodily injury and there is no conflicting evidence.” Id. at 16. 

In this second-degree murder case where the defendant’s girlfriend was fatally shot in the eye with a pistol, the trial court did not err by omitting a jury instruction on the defense of accident or by sentencing the defendant as a Class B1 felon.  The trial court did not err by omitting an instruction on the defense of accident because the defendant testified that he did not commit the shooting or witness it and that he was unsure how it happened.  The defendant’s testimony “flatly contradicted” the evidence suggesting he was involved in an arguably accidental shooting.  The Court explained that the defendant could not “simultaneously deny that he committed the shooting and claim that he accidentally committed the shooting.” 

As to the sentencing issue, while a general verdict of guilty for second-degree murder is ambiguous for sentencing purposes where there is evidence supporting either a Class B2 offense based on depraved-heart malice or a Class B1 offense based on another malice theory, the court concluded that there was no evidence in support of depraved-heart malice in this case.  Neither the defendant’s testimony, which asserted that he left the unloaded pistol unattended, or other testimony suggesting that the victim grabbed the pistol as the defendant held it while arguing with her, was sufficient to show that the defendant committed an inherently dangerous act in a manner indicating a depraved heart.  The trial court therefore did not err by sentencing the defendant as a Class B1 felon and also did not err by omitting an instruction to the jury on the definition of depraved-heart malice.

A code enforcement officer (“Wayman”), accompanied by police officers, was at a property owned by the defendant to execute an administrative warrant for the removal of nuisance building materials. While they were standing on the street in front of the property, the defendant drove up in his car and the passenger side mirror struck Wayman in the hip. The police officers shouted at the defendant to stop his car and get out. The defendant stopped his car, but as Wayman walked by in front of the vehicle, the car moved forward again and stuck Wayman in the knee. The officers repeatedly demanded that the defendant exit his car, and after he complied the defendant stated that Wayman “wanted to be hit.” The defendant was arrested and charged with assault with a deadly weapon. After being convicted in district court, the defendant appealed for trial de novo in superior court, and the jury found him guilty of the lesser charge of simple assault.

On appeal, the defendant argued that the trail court erred by denying his motion to dismiss for insufficient evidence regarding the defendants’ intent. The appellate court disagreed, and found there was circumstantial evidence of intent based on the witness testimony and officers’ body-cam video. The defendant swerved towards Wayman with his car, and when he exited the car he was visibly upset with Wayman, which would allow a reasonable person to believe that the defendant intended to hit Wayman or at least to put him in fear of immediate bodily harm. But the trial court erred by not instructing the jury on the defense of accident. The defendant testified that it was a chaotic scene, he was only trying to “squeeze by” Wayman and park his car, and he did not hit anyone on purpose. That constituted sufficient evidence from which the jury could have concluded the defendant’s action was unintentional, lawful, and not done with reckless disregard for the safety of others, so it was reversible error to deny the defendant’s request for an instruction on the defense of accident.

In a case involving attempted murder and other charges, the defendant was not entitled to a jury instruction on the defense of accident. The defendant testified that his gun discharged accidentally during the fight with the victim. The evidence, however, even considered in the light most favorable to the defendant, shows the defendant was engaged in wrongdoing when he shot the victim. The defendant admitted that he physically assaulted the victim and had his hand on the trigger of his gun when it discharged. By his own admission, he was engaged in wrongful conduct when he shot the victim. He thus was not entitled to a jury instruction on the defense of accident.

In a child sexual assault case, the trial court did not err by failing to instruct the jury on the defense of accident as requested by the defendant. The defendant, who assisted high school sports teams, was charged with sexual offense and indecent liberties with students in connection with stretching and massages he provided to injured student athletes. The trial court properly denied the defendant’s request for the instruction “given the complete absence of any evidence tending to show that he digitally penetrated [the victim’s] vagina with his fingers in an accidental manner.” The court noted that at trial the defendant denied doing the acts in question.

The trial court did not err by failing to instruct on accident. The defense is unavailable when the defendant was engaged in misconduct at the time of the killing. Here, the defendant was engaged in misconduct—he broke into a home with the intent to commit robbery and the killing occurred during a struggle over the defendant’s gun. The court also rejected the defendant’s argument that because he abandoned his plan to commit the robbery, his right to the defense of accident was “restored.” Even assuming that the defendant abandoned his plan, that fact would not break the sequence of events giving rise to the shooting.

Where the trial court submitted an instruction on automatism as a defense to a charge of felony child abuse, it was not required to instruct the jury on lesser included child abuse offenses. Automatism is a complete defense to a criminal charge and did not render any of the elements of felonious child abuse in conflict. 

The trial court did not commit plain error by instructing the jury that the defendant had the burden of persuasion to prove the defense of automatism. Automatism is an affirmative defense, and the burden is on the defendant to prove its existence to the jury.

In an impaired driving case, the trial court did not err by declining to instruct on automatism or unconsciousness. The defendant asserted that even though unconsciousness through voluntary consumption of alcohol or drugs does not support an instruction as to automatism or unconsciousness, his unconsciousness could have been the result of the effects of voluntary consumption of alcohol combined with the effects of Alprazolam, a drug that he had been prescribed to control his panic attacks. The court concluded that there was no evidence that the defendant’s consumption of alcohol or his medication was involuntary.  

The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property is a general intent crime, diminished capacity offers no defense.

Although the defendant met his burden of production with respect to diminished capacity in this murder and assault case in which the defendant stuck various persons with a vehicle, the State introduced sufficient evidence of specific intent to kill. The State did not present expert witnesses. Rather, the State’s evidence focused on the defendant's acts before, during, and after the crime as showing that he had the specific intent to kill necessary for first-degree murder based on premeditation and deliberation and the other felony assaults. The State’s evidence showed for example that the defendant specifically targeted the victims and that he did not just hit them and drive on but rather continued to injure them further after the first impact.

In a murder case, the trial court did not err by denying the defendant’s request for a jury instruction on diminished capacity. The defendant had argued that he was entitled to the instruction based on evidence that he suffered from post-traumatic stress syndrome, alcohol dependence, and cognitive impairment resulting from a head injury, causing him to possibly overreact to stress or conclude that deadly force was necessary to deal with a threatening situation. The court found no evidence casting doubt on the defendant’s ability to premeditate, deliberate, or form the specific intent to kill necessary for guilt of first-degree murder on the basis of malice, premeditation, and deliberation.

In this DWI case, the trial court erred by refusing to instruct the jury on the defense of necessity. The defendant was arrested for DWI while driving a golf cart. The evidence showed that the defendant and his wife used the golf cart on paths connecting their home to a local bar, that he drove the golf cart to the bar on those paths on the evening in question, and that he planned to return the same way. However when a fight broke out at the bar, the defendant and his wife fled on the golf cart, driving on the roadway. The defendant was convicted and he appealed. The court began its analysis by noting that the affirmative defense of necessity is available to DWI defendants and involves these elements: reasonable action, taken to protect life, limb, or health of a person, and no other acceptable choices available. The trial court erred by applying an additional element, requiring that the defendant’s action was motivated by fear. The court went on to determine that an objective standard of reasonableness applies to necessity, as compared to duress which appears to involve a subjective standard. The evidence was sufficient to satisfy the first two elements of the defense: reasonable action taken to protect life, limb, or the health of a person. Here, the bar attracted a rough clientele, including “the biker crowd.” It was not unusual for fights to break out there, but the bar had no obvious security. On the night in question, the bar atmosphere became “intense” and “mean” such that the two decided to leave. The defendant then argued with several men in the parking lot, which escalated to shouting and cursing. The main person with whom the defendant was arguing was described as the “baddest mother_cker in the bar.” The defendant punched the man, knocking him to the ground. The man was angry and drew a handgun, threatening the defendant. Neither the defendant nor his wife were armed. The scene turned “chaotic,” with a woman telling the defendant’s wife that the man was “crazy” and that they needed to “get out of [t]here.” The defendant’s wife was concerned that the man might shoot the defendant, her or someone else. When the defendant saw the gun, he screamed at his wife to leave. The defendant’s wife said she had no doubt that if they had not fled in the golf cart they would have been hurt or killed by the man with the gun. On these facts the court held:

[S]ubstantial evidence was presented that could have supported a jury determination that a man drawing a previously concealed handgun, immediately after having been knocked to the ground by Defendant, presented an immediate threat of death or serious bodily injury to Defendant, [his wife], or a bystander, and that attempting to escape from that danger by driving the golf cart for a brief period on the highway was a reasonable action taken to protect life, limb, or health.

The court also found that there was sufficient evidence as to the third element of the defense: no other acceptable choices available. With respect to whether the perceived danger had abated by the time the defendant encountered the officer, the court noted that the defendant had pulled off the highway approximately 2/10 of a mile from the bar and the defendant’s wife said that she saw the officer within minutes of the altercation. The court concluded: “On the facts of this case, including . . . that there was a man with a firearm who had threatened to shoot Defendant, and who would likely have access to a vehicle, we hold two-tenths of a mile was not, as a matter of law, an unreasonable distance to drive before pulling off the highway.” The court further clarified that the defenses of necessity and duress are separate and distinct. And it held that the evidence also supported a jury instruction on duress.

 

The trial court did not err by failing to instruct the jury on duress as a defense to a charge of first-degree murder on the basis of premeditation and deliberation. Duress is not a defense to such a charge.

In this attempted felony breaking or entering and habitual felon case, the trial court did not err by denying the defendant’s request to instruct the jury on duress. To be entitled to an instruction on duress, a defendant must present evidence that he feared he would suffer immediate death or serious bodily injury if he did not act. Moreover, duress cannot be invoked as an excuse by someone who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. Here, the evidence showed that the defendant’s accomplice drove the defendant’s vehicle to the home in question while the defendant was a passenger. The accomplice, carrying a knife, and the defendant, carrying a lug wrench walked to the premises. After realizing that the resident was taking their pictures, both fled. When asked if he attempted to get away from his accomplices at any point, the defendant testified only that his accomplices “pretty much had control of my car;” he also testified that at some point he “did get scared” of his accomplices because they talked about stealing his truck. He admitted however that they never pulled a weapon on him. Additionally, although the defendant argued that his accomplices held him against his will for several days, he had at least two opportunities to seek help and escape, including one instance when he was alone with an officer. Based on this evidence, the defendant was not entitled to a jury instruction on duress.

The court rejected the defendant’s argument that he could not be convicted of aiding and abetting a sexual offense and child abuse by sexual act on grounds that the person who committed the acts—his son—was under duress from the defendant. Even if the son was under duress, his acts were still criminal.

The trial court did not err in denying the defendant’s request for a jury instruction on duress. The defendant voluntarily joined with his accomplices to commit an armed robbery, he did not object or attempt to exit the vehicle as an accomplice forced the victims into the car, and the defendant took jewelry from one victim while an accomplice pointed a gun at her. There was no evidence that any coercive measures were directed toward the defendant prior to the crimes being committed. Any threats made to the defendant occurred after the crimes were committed. 

The defendant was charged with solicitation of a child by computer under G.S. 14-202.3 after he responded to a Craigslist personal advertisement posted by a police detective posing as a 15-year-old. At trial the defendant requested a jury instruction on the defense of entrapment, which the trial court denied. The defendant was convicted and appealed. A divided Court of Appeals affirmed, with the majority concluding that the defendant’s request for an entrapment instruction was properly denied when the evidence showed that he was willing to engage in criminal activity and defendant failed to show that he was not predisposed to commit the act. State v. Keller, ___ N.C. App. ___, 828 S.E.2d 578 (2019). The dissenting judge would have concluded that the defendant was entitled to the instruction.

The Supreme Court reversed the Court of Appeals and remanded for a new trial. A defendant is entitled to jury instructions on entrapment if he presents “some credible evidence” tending to show that he was a victim of entrapment. Here, viewing the evidence in the light most favorable to the defendant, the Court concluded that he made the requisite showing. The defendant testified that he initially believed the undercover detective to be 18 years old because Craigslist requires age verification to post a personal ad. And once the detective said via email that he was 15, the defendant repeatedly said they would have to wait to have sex until the detective was of age, at which point the detective steered the conversation back toward sex. Taking those facts as true, the Court concluded that a reasonable juror could have found that the defendant did not have a willingness or predisposition to commit the charged crime, and that he was thus entitled to an instruction on entrapment. The Court also concluded that the trial court erred by finding that the defendant’s request for a jury instruction on entrapment was inconsistent with his testimony that he traveled to meet the detective to help him, not to commit a sexual act with him. In general, a defendant cannot simultaneously deny committing an act and also say that he was entrapped into committing it. Here, however, the defendant did not deny the act, but rather only disputed his criminal intentions for the meeting. The entrapment defense therefore remained available. Finally, the Court held that the error was prejudicial and remanded for a new trial.

Justice Newby dissented, joined by Justice Morgan, stating his view that the entrapment defense is not available to a defendant who does not admit to all the elements of the charged offense, and that the defendant’s continued pursuit of the undercover detective even after learning that he was underage showed a predisposition to commit criminal acts that barred an entrapment defense.

In this drug trafficking case, the trial court did not err by refusing the defendant’s request to instruct the jury on the affirmative defense of entrapment.  The trial court did err, however, by entering a civil judgment against the defendant for attorney’s fees without first giving the defendant an opportunity to be heard on that issue. 

Viewed in the light most favorable to the defendant, the evidence showed that the defendant was persuaded by Jason Ford, a confidential informant working with the Onslow County Sheriff’s Office, to commit the crimes for which he was convicted.  As to the jury instruction on entrapment, the court explained that under precedent from the North Carolina Supreme Court,

The defense of entrapment is available when there are acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime and when the origin of the criminal intent lies with the law enforcement agencies. We note that this is a two step test and a showing of trickery, fraud or deception by law enforcement officers alone will not support a claim of entrapment. The defendant must show that the trickery, fraud or deception was practiced upon one who entertained no prior criminal intent.

(quoting and adding emphasis to State v. Hageman, 307 N.C. 1, 28 (1982)).  The court found that the defendant’s evidence showed the first element of entrapment but did not show the second, noting that the defendant’s testimony established that (1) the criminal opportunity at issue originated with a third party who was not working for or affiliated with the State; (2) the defendant told Ford about the opportunity; and (3) Ford thereafter encouraged the defendant to take advantage of the criminal opportunity and offered to help facilitate.  Reviewing the record, the court found that it demonstrated that Ford “merely afford[ed] the defendant an opportunity to commit the crime[s]” which he was predisposed to commit and, therefore, the defendant was not entitled to an instruction on entrapment.

The State conceded that the indigent defendant was not given an opportunity to be heard before the trial court entered the civil judgment against him for attorney’s fees and that this was error.  The court set aside the civil judgment and remanded for a new hearing on attorney’s fees.

In this drug case, the trial court erred by denying the defendant’s request for an instruction on entrapment. The court agreed with the defendant that the plan to sell the pills originated in the mind of the defendant’s friend Eudy, who was acting as an agent for law enforcement, and the defendant was only convinced to do so through trickery and persuasion. It explained:

[A]ccording to defendant’s evidence, Eudy was acting as an agent for the Sherriff’s office when she approached defendant, initiated a conversation about selling pills to her buyer, provided defendant the pills, and coached her on what to say during the sale. While it is undisputed that defendant was a drug user, defendant claimed that she had never sold pills to anyone before. In fact, the only reason she agreed to sell them was because she was “desperate for some pills,” and she believed Eudy’s story that she did not want her husband to find out what she was doing. Defendant’s testimony established that Eudy told defendant exactly what to say such that, during the encounter, defendant was simply playing a role which was defined and created by an agent of law enforcement. In sum, this evidence, if believed, shows that Eudy not only came up with the entire plan to sell the drugs but also persuaded defendant, who denied being a drug dealer, to sell the pills to [the undercover officer] by promising her pills in exchange and by pleading with her for her help to keep the sale secret from her husband. Furthermore, viewing defendant’s evidence as true, she had no predisposition to commit the crime of selling pills.

(1) In a delivery of cocaine case where the defendant presented sufficient evidence of the essential elements of entrapment, the trial court erred by refusing to instruct the jury on that defense. The defendant’s evidence showed that an undercover officer tricked the defendant into believing that the officer was romantically interested in the defendant in order to persuade the defendant to obtain cocaine for him, that the defendant had no predisposition to commit a drug offense such as delivering cocaine, and that the criminal design originated solely with the officer. The court rejected the State’s argument that the evidence showed that the officer merely afforded the defendant the opportunity to commit the offense.

In a drug trafficking case where the record failed to indicate that law enforcement officers utilized acts of persuasion, trickery or fraud to induce the defendant to commit a crime, or that the criminal design originated in the minds of law enforcement rather than with the defendant, the trial court did not err in failing to instruct the jury on the defense of entrapment.

The trial court did not err by denying the defendant’s request for an entrapment instruction where no credible evidence suggested that he would not have committed the crime except for law enforcement’s persuasion, trickery or fraud or that the crime was the creative production of law enforcement authorities.

The trial court did not err by denying the defendant’s request for an instruction on the defense of entrapment by estoppel. The defendant was charged with violating G.S. 14-454.1(a)(2) (unlawful to “willfully . . . access or cause to be accessed any government computer for the purpose of . . . [o]btaining property or services by means of false or fraudulent pretenses, representations, or promises”). The State alleged that the defendant, who worked for a private license plate agency, submitted false information into the State Title and Registration System (STARS) so that a car dealer whose dealer number was invalid could transfer title. The defendant asserted that she was told by a colleague named Granados, who was a licensed title clerk, how to enter the transaction. The court concluded that Granados was not a governmental official; Granados was an employee of the license plate agency, not the State of North Carolina, and the agency was a private contractor. It stated that a government license does not transform private licensees into governmental officials.

In a drug trafficking case, the trial court did not err by denying the defendant’s request for a jury instruction on entrapment. After an individual named Shaw repeatedly called the defendant asking for cocaine, the defendant told Shaw he would “call a guy.” The defendant called a third person named Armstrong to try to obtain the cocaine. When Armstrong did not answer his phone, the defendant drove to his house. The next day, the defendant picked up Armstrong and drove him to a location previously arranged to meet Shaw. The court found that these actions illustrate the defendant’s “ready compliance, acquiescence in, [and] willingness to cooperate in the criminal plan” and thus his predisposition. Additionally, the court noted, the defendant admitted that he had been involved as a middle man on a prior deal; this admission further demonstrates predisposition.

The trial court erred by dismissing larceny by employee charges based on the theory of entrapment by estoppel. The defendant, a public works supervisor, was accused of selling “white goods” and retaining the proceeds. The court concluded that while officials testified that they were aware that some “white goods” were sold and that the money was deposited to a common pool, no evidence was offered to show that government officials expressly condoned the defendant pocketing money from that fund. Thus, the explicit permission requirement for entrapment by estoppel was not met. 

In a drug case, the evidence failed to establish that the defendant was entitled to the entrapment defense as a matter of law. Thus, the trial court did not err by denying the defendant’s motion to dismiss on grounds of entrapment and submitting the issue to the jury.

The trial judge did not err by refusing to instruct on entrapment. The defendant was convicted of soliciting a child by computer with intent to commit an unlawful sex act. The “child” was a law enforcement officer pretending to be a 14 year old in an adults-only Yahoo chat room. The court concluded that there was no credible evidence that the criminal design originated in the minds of the government officials, rather than defendant, such that the crime was the product of the creative activity of the government. Instead, it stated, the evidence indicates that undercover deputies merely provided the opportunity for the defendant and, when presented with that opportunity, the defendant pursued it with little hesitance. 

In this case concerning the Fifth Amendment’s Double Jeopardy Clause, Damian McElrath petitioned for relief after the Supreme Court of Georgia held its state’s repugnancy doctrine allowed the retrial of McElrath for malice murder after the jury returned a verdict of not guilty by reason of insanity, but found McElrath guilty of related charges. In an opinion authored by Justice Jackson, the Court unanimously rejected Georgia’s interpretation and held that McElrath could not be tried for malice murder a second time because the jury’s verdict of not guilty by reason of insanity represented an acquittal. 

In 2012, McElrath stabbed his adopted mother to death, suspecting that she was poisoning his food. McElrath had been diagnosed with bipolar disorder at a young age, and a few weeks before the killing he began exhibiting delusions, resulting in his commitment to a mental health facility where he was diagnosed with schizophrenia. One week after his discharge from the mental health facility, McElrath killed his mother, then called 911 to report the killing, informing law enforcement that he killed her because she was poisoning his food. 

Georgia brought three charges against McElrath: malice murder (effectively first-degree murder), felony murder, and aggravated assault. At trial, McElrath asserted an insanity defense. Georgia law allowed for two special verdicts in this situation, “not guilty by reason of insanity” and “guilty but mentally ill.” The jury in this case returned a split verdict, finding McElrath not guilty by reason of insanity for the malice murder charge, and guilty but mentally ill for the felony murder and aggravated assault charges (these charges merged as the assault was the predicate felony). The trial court sentenced McElrath to life imprisonment and he appealed, arguing that the two verdicts were “repugnant” (meaning the jury’s findings “are not legally and logically possible of existing simultaneously”) under Georgia law and, thus, the felony murder/aggravated assault verdict should be vacated. Slip op. at 4. 

The Supreme Court of Georgia agreed that the verdicts were repugnant, but contrary to McElrath’s request, the court vacated both the malice murder and felony murder/aggravated assault verdicts, remanding for a new trial. McElrath appealed a second time, arguing the Double Jeopardy Clause prevented retrying him for malice murder when he was acquitted by the jury. The Georgia Court disagreed, holding that because the two verdicts were repugnant, neither held value, and the not guilty by reason of insanity verdict did not operate as a normal acquittal. This holding led to McElrath’s petition and the current opinion. 

Taking up the Double Jeopardy Clause argument, Justice Jackson first noted the long line of decisions establishing that “[o]nce rendered, a jury’s verdict of acquittal is inviolate.” Id. at 6. Importantly, the specific reasoning of the jury is not relevant, as “[w]hatever the basis, the Double Jeopardy Clause prohibits second-guessing the reason for a jury’s acquittal.” Id. Here, Georgia argued that the repugnancy of the verdicts meant they were both null, changing the normal calculus for an acquittal. The Court rejected this argument, explaining that “whether an acquittal has occurred for purposes of the Double Jeopardy Clause is a question of federal, not state, law[,]” and state law cannot change the fundamental considerations as to what constitutes an acquittal. Id. at 8. Under the Court’s standard, “an acquittal has occurred if the factfinder ‘acted on its view that the prosecution had failed to prove its case.’” Id. (quoting Evans v. Michigan, 568 U. S. 313, 322 (2013)). 

Justice Jackson emphasized that even though the “not guilty by reason of insanity” verdict “was accompanied by other verdicts that appeared to rest on inconsistent findings[,]” this did not impact the Court’s conclusion, as “the Double Jeopardy Clause prohibits second guessing an acquittal for any reason.” Id. at 9. Georgia argued that due to the special nature of the verdicts regarding McElrath’s mental state, the normal rules of scrutinizing an acquittal did not apply. Justice Jackson explained that this did not matter, as precedent prohibited speculating as to a jury’s motivations or reasoning even when there are “specific jury findings that provide a factual basis for such speculation,” concluding “[w]e simply cannot know why the jury in McElrath’s case acted as it did, and the Double Jeopardy Clause forbids us to guess.” Id. at 12. 

Justice Alito joined the unanimous opinion but also wrote a one-page concurrence to clarify that “the situation here is different from one in which a trial judge refuses to accept inconsistent verdicts and thus sends the jury back to deliberate further.” Id. (Alito, J., concurring). This echoed Justice Jackson’s clarification in footnote 4 of the main opinion. 

 

The defendant was convicted of and sentenced to death for killing his wife, who had filed for divorce, his two teenage daughters, and his wife’s grandmother, with whom the victims were staying. Before trial, the defendant filed a motion arguing that Kansas’ law on insanity violated the Due Process Clause of the Fourteenth Amendment. Before statutory changes enacted in 1995, Kansas followed the M’Naghten test for insanity. Under that test, a defendant is not guilty by reason of insanity if either (1) he did not know the nature and quality of the act he was doing or (2) if he did know, he did not know his act was wrong. In 1995, Kansas legislatively abolished the M’Naghten insanity defense and adopted a mens rea defense. The pertinent statute provides that it is a defense to prosecution that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense charged. The statute provides further that a mental disease or defect is not otherwise a defense. The Kansas courts rejected the defendant’s due process challenge. The U.S. Supreme Court affirmed.

The six-member majority began by observing that the M’Naghten insanity formulation consists of two tests: a cognitive incapacity test (the defendant did not know the nature and quality of his act); and a moral incapacity test (the defendant did not know his act was wrong). The Kansas’ mens rea defense, according to the Court, retains the cognitive incapacity test for insanity and jettisons the moral incapacity test. For a state rule on criminal liability to violate the Due Process Clause, it must offend “some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Slip Op. at 14. The Court held that the moral capacity test is not such a principle and that the Due Process Clause does not compel states to adopt an insanity defense that turns on a defendant’s ability to know his act was wrong. The Court also noted that Kansas law allows a defendant to present mental health evidence at sentencing and that a judge may replace a defendant’s prison term with commitment to a mental health facility.

The three dissenting justices argued that Kansas had eliminated the core of the insanity defense by disallowing the defense for a defendant, who by reason of mental illness, “lacked the mental capacity necessary for his conduct to be considered morally blameworthy.” Dissenting Op. at 1. The dissent gave two examples to illustrate its view.

In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Id. at 1–2.

 Under Kansas’ law, the defendant in Prosecution One could defend against the charge by showing that his mental illness prevented him from forming the mens rea for murder (intentional killing of a human being). The defendant in Prosecution Two has no defense under Kansas law because he acted with the necessary level of intent. The dissent observed that mental illness typically does not deprive individuals of the ability to form intent; rather, it affects their motivations for acting. As a result, Kansas’ approach requires conviction of a broad swath of defendants who would be adjudged not guilty under any traditional formulation of the insanity defense. In the dissent’s view, this result “offends deeply entrenched and widely recognized moral principles underpinning our criminal laws.” Id. at 21. The dissent rejected the idea that consideration of mental capacity at sentencing satisfies due process, finding that an insane defendant should not be found guilty in the first place.

In a case where the trial court made a pretrial determination of not guilty by reason of insanity (NGRI), the defendant’s constitutional right to effective assistance of counsel was violated when the trial court allowed defense counsel to pursue a pretrial insanity defense against her wishes. Against the defendant’s express wishes, counsel moved for a pretrial determination of NGRI pursuant to G.S. 15A-959. The State consented and the trial court agreed, purportedly dismissing the charges based on its determination that the defendant was NGRI. The court noted that the issue whether a competent defendant has a right to refuse to pursue a defense of NGRI is a question of first impression in North Carolina. It determined:

By ignoring Defendant’s clearly stated desire to proceed to trial rather than moving for a pretrial verdict of NGRI pursuant to N.C.G.S. § 15A-959(c), the trial court allowed — absent Defendant’s consent and over her express objection — the “waiver” of her fundamental rights, including the right to decide “what plea to enter, whether to waive a jury trial and whether to testify in [her] own defense[,]” as well as “the right to a fair trial as provided by the Sixth Amendment[,] . . . the right to hold the government to proof beyond a reasonable doubt[,] . . . [and] the right of confrontation[.]” These rights may not be denied a competent defendant, even when the defendant’s choice to exercise them may not be in the defendant’s best interests. In the present case, Defendant had the same right to direct her counsel in fundamental matters, such as what plea to enter, as she had to forego counsel altogether and represent herself, even when Defendant’s choices were made against her counsel’s best judgment. (citations omitted)

It went on to hold:

[B]ecause the decision of whether to plead not guilty by reason of insanity is part of the decision of “what plea to enter,” the right to make that decision “is a substantial right belonging to the defendant.” Therefore, by allowing Defendant’s counsel to seek and accept a pretrial disposition of NGRI, the trial court “deprived [Defendant] of [her] constitutional right to conduct [her] own defense.” We are not called upon to determine how that right should be protected when asserted by a defendant’s counsel at trial but, at a minimum, a defendant’s affirmative declaration that the defendant does not wish to move for a pretrial determination of NGRI must be respected. (quotation and footnote omitted).

The court went on to reject the State’s argument that the defendant could not show prejudice because she was subject to periodic hearings pertaining to her commitment. 

No plain error occurred when the trial judge instructed the jury on insanity using N.C.P.I.—Crim. 304.10. The defendant had argued that the trial court erred by failing to instruct the jury that the insanity defense applies if a defendant believed, due to mental illness, that his conduct was morally right. 

Based on the victim’s testimony that the alleged incident occurred in his bedroom, there was sufficient evidence that the charged offense, crime against nature, occurred in the state of North Carolina.

State v. Lalinde, 231 N.C. App. 308 2013-12-03 review granted, 367 N.C. 503 (Jun 11 2014)

Where the evidence showed that part of a child abduction occurred in North Carolina jurisdiction was established and no jury instruction on jurisdiction was required. The defendant took the child from North Carolina to Florida. The court noted that jurisdiction over interstate criminal cases is governed by G.S. 15A-134 ("[i]f a charged offense occurred in part in North Carolina and in part outside North Carolina, a person charged with that offense may be tried in this State"). It was undisputed that the defendant picked up the child in North Carolina. Therefore, the child abduction occurred, at least in part, in North Carolina. 

In this Bladen County case, the Supreme Court reversed the Court of Appeals majority decision overturning defendant’s conviction and ordering a new trial. The Supreme Court found no error with the denial of defendant’s request for a jury instruction on justification as a defense to possession of a firearm by a felon. 

Defendant went to trial for first degree murder and possession of a firearm by a felon in November of 2018. Defense counsel requested an instruction on the affirmative defense of justification to the firearm possession charge, and the trial court denied this request. Explaining the basis for the defense, the Supreme Court noted that justification has four elements outlined by State v. Mercer, 373 N.C. 459 (2020), and only two, the second and third elements, were in question in the immediate case. Slip Op. at 6-7.  The court outlined the second element under Mercer, that defendant “did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct,” and concluded that defendant failed to meet this burden by returning to the apartments where an altercation had occurred. Id. at 8. Because defendant placed himself in a situation where criminal conduct could occur, he could not meet this burden, and the court did not conduct any further analysis on the third Mercer factor.

Justice Morgan, joined by Justices Hudson and Earls, dissented, and would have affirmed the Court of Appeals majority decision. Id. at 10. 

 

 

The defendant was indicted for possession of a firearm—specifically, “a New England Firearms Pardner Model 12 Gauge Shotgun”—by a person previously convicted of a felon. The defendant initially told officers, who were investigating a report of a domestic dispute at the defendant’s home, that he had no knowledge about a shotgun, but he later admitted to one of the deputies that he had thrown the shotgun into the woods and told the deputy where he had thrown it. At trial, the defendant testified that he had been involved in an altercation with his stepson but did not remember taking the shotgun from him. He further testified that he did not take possession of “that gun.” The trial judge gave the pattern instruction on possession of a firearm by a person previously convicted of a felony. There were no objections to the instruction, and the jury found the defendant guilty of the possession charge and of having attained habitual felon status. On appeal, the defendant argued that the trial judge committed plain error by failing to instruct the jury on the affirmative defense of justification. The Court of Appeals held that the defendant was not entitled to the instruction.

The Court first recognized that in State v. Mercer, ___ N.C. App. ___, 818 S.E.2d 375 (2018), aff'd ___ N.C. ___, ___ S.E.2d ___ (2020), it had recognized the defense of justification to possession of a firearm by a person previously convicted of a felony. The Court noted that the North Carolina Supreme Court has granted review in Mercer but stated that it would follow Mercer as it applied when the defendant’s case was before the trial court. Assuming a justification defense as explained in Mercer applies in North Carolina, the Court stated first that it isn’t clear that a justification defense is a “substantial and essential feature” of the possession charge, requiring an instruction by the trial judge, because the possession statute does not describe justification or self-defense as an element of the offense. The Court then ruled that the defendant’s own testimony, in which he denied possessing the gun alleged in the indictment, rendered a justification defense unavailable. The Court stated that a defendant is not entitled to a justification instruction where he testifies that he did not commit the criminal act at all. The Court also rejected the defendant’s claim of ineffective assistance of counsel based on counsel’s failure to request a justification instruction, holding that even if counsel had requested such an instruction the trial court should not have granted it.

In this Onslow County case, defendant appealed his convictions for felony fleeing to elude arrest and speeding in excess of 80 mph, arguing error in denying his request for an instruction on necessity as a defense. The Court of Appeals found no error. 

In September of 2021, defendant led officers of the Onslow County Sheriff's Office on a high speed chase on his motorcycle. When defendant came for trial, he testified that he had been threatened earlier in the day by members of a motorcycle gang, justifying his actions. During the charge conference, defense counsel requested an instruction on the defense of necessity, but the trial court denied this request, explaining that defendant failed to demonstrate that he had no other acceptable choices.  

Taking up defendant’s appeal, the Court of Appeals explained that the defense of necessity required defendant to establish (1) his action was reasonable, (2) it was taken to protect life, limb, or health of a person, and (3) no other acceptable choices were available. The court found that defendant did not demonstrate reasonableness as defendant’s long flight from law enforcement provided “ample time and opportunity to realize the vehicles pursuing him were law enforcement.” Slip Op. at 5. Likewise, the court faulted defendant for not noticing the vehicles chasing him were law enforcement vehicles, not motorcycles. The court found defendant presented no evidence on “the lack of acceptable alternatives or the reasonableness of his actions.” Id. at 7. As a result, the defense of necessity was not applicable. 

 

In this DWI case, the trial court erred by refusing to instruct the jury on the defense of necessity. The defendant was arrested for DWI while driving a golf cart. The evidence showed that the defendant and his wife used the golf cart on paths connecting their home to a local bar, that he drove the golf cart to the bar on those paths on the evening in question, and that he planned to return the same way. However when a fight broke out at the bar, the defendant and his wife fled on the golf cart, driving on the roadway. The defendant was convicted and he appealed. The court began its analysis by noting that the affirmative defense of necessity is available to DWI defendants and involves these elements: reasonable action, taken to protect life, limb, or health of a person, and no other acceptable choices available. The trial court erred by applying an additional element, requiring that the defendant’s action was motivated by fear. The court went on to determine that an objective standard of reasonableness applies to necessity, as compared to duress which appears to involve a subjective standard. The evidence was sufficient to satisfy the first two elements of the defense: reasonable action taken to protect life, limb, or the health of a person. Here, the bar attracted a rough clientele, including “the biker crowd.” It was not unusual for fights to break out there, but the bar had no obvious security. On the night in question, the bar atmosphere became “intense” and “mean” such that the two decided to leave. The defendant then argued with several men in the parking lot, which escalated to shouting and cursing. The main person with whom the defendant was arguing was described as the “baddest mother_cker in the bar.” The defendant punched the man, knocking him to the ground. The man was angry and drew a handgun, threatening the defendant. Neither the defendant nor his wife were armed. The scene turned “chaotic,” with a woman telling the defendant’s wife that the man was “crazy” and that they needed to “get out of [t]here.” The defendant’s wife was concerned that the man might shoot the defendant, her or someone else. When the defendant saw the gun, he screamed at his wife to leave. The defendant’s wife said she had no doubt that if they had not fled in the golf cart they would have been hurt or killed by the man with the gun. On these facts the court held:

[S]ubstantial evidence was presented that could have supported a jury determination that a man drawing a previously concealed handgun, immediately after having been knocked to the ground by Defendant, presented an immediate threat of death or serious bodily injury to Defendant, [his wife], or a bystander, and that attempting to escape from that danger by driving the golf cart for a brief period on the highway was a reasonable action taken to protect life, limb, or health.

The court also found that there was sufficient evidence as to the third element of the defense: no other acceptable choices available. With respect to whether the perceived danger had abated by the time the defendant encountered the officer, the court noted that the defendant had pulled off the highway approximately 2/10 of a mile from the bar and the defendant’s wife said that she saw the officer within minutes of the altercation. The court concluded: “On the facts of this case, including . . . that there was a man with a firearm who had threatened to shoot Defendant, and who would likely have access to a vehicle, we hold two-tenths of a mile was not, as a matter of law, an unreasonable distance to drive before pulling off the highway.” The court further clarified that the defenses of necessity and duress are separate and distinct. And it held that the evidence also supported a jury instruction on duress.

 

(1) In an involuntary manslaughter case where a death occurred during a high speed chase by a bail bondsman in his efforts to arrest a principal, the trial court did not err by instructing the jury that bail bondsmen cannot violate motor vehicle laws in order to make an arrest. While the statute contains specific exemptions to the motor vehicle laws pertaining to speed for police, fire, and emergency service vehicles, no provision exempts a bail bondsman from complying with speed limits when pursuing a principal. (2) The trial court did not err by failing to submit to the jury the question whether the defendant’s means in apprehending his principal were reasonable. Under the law the defendant bail bondsman was not authorized to operate his motor vehicle at a speed greater than was reasonable and prudent under the existing conditions because of his status as a bail bondsman. It concluded:

Just as the bail bondsmen cannot enter the homes of third parties without their consent, a bail bondsmen pursuing a principal upon the highways of this State cannot engage in conduct that endangers the lives or property of third parties. Third parties have a right to expect that others using the public roads, including bail bondsmen, will follow the laws set forth in Chapter 20 of our General Statutes.

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 Wake County case, the Supreme Court modified and affirmed a Court of Appeals decision upholding defendant’s conviction for first-degree murder. The Court held that the trial court erred when providing the lying-in-wait instruction to the jury, but because defendant was convicted on two theories of first-degree murder, his conviction was upheld and no new trial was necessary. 

In 2016, the victim attended a party in defendant’s neighborhood. During the night, crowds of people gathered outside defendant’s house, and he became angry, yelling at some of the people outside. Defenant called 911 and claimed the people outside were vandalizing his property, and he went to his garage with a shotgun. Later, as the victim crossed defendant’s yard near the curb, defendant shot and killed him. Defendant was convicted of first-degree murder by premeditation and deliberation, and by lying in wait. He appealed, reaching the Supreme Court for the first time in State v. Copley, 374 N.C. 224 (2020), arguing the prosecutor improperly mentioned race in closing arguments. The Court found no prejudicial error and remanded to the Court of Appeals to consider the remaining arguments. The Court of Appeals considered defendant’s three remaining arguments and found no error, leading to the current appeal. 

The Supreme Court first considered defendant’s argument that the trial court should have intervened during closing argument when the prosecutor suggested defendant could not invoke the defense of habitation because he was the aggressor. The Court explained the standard of review was gross impropriety because defendant did not object at trial; this standard requires that the remarks be both improper and prejudicial. Here, the Court held that the prosecutor did not misstate the law, as “the prosecutor never labeled him the ‘aggressor’ for purposes of self-defense, but instead characterized discrete actions as ‘aggressive.’” Slip Op.at 11. 

The Court then moved to the challenged jury instructions, beginning with defendant’s argument that the trial court erred by instructing the jury that the defense of habitation is unavailable to an aggressor. The Court explained that the instruction came from footnote 4 of N.C. Pattern Jury Instruction 308.80, and dealt with provocation, not with the aggressor doctrine. The Court also noted that defense counsel requested aggressor language in the self-defense instruction, inviting the error defendant then referenced on appeal. 

Finally, the Court reached the lying-in-wait instruction for first-degree murder, explaining that the castle doctrine was relevant to the consideration of defendant’s case. The Court explained that “[i]f the statutory castle doctrine applies, it disclaims the elements of lying in wait and displaces that offense.” Id. at 20. In the current case, the Court held that “the trial court’s lying-in-wait instruction distorted the interplay between the crime and the castle doctrine” and deprived defendant of his right to defend his home. Id. at 22. However, because defendant was also convicted under the premeditation and deliberation theory, this error did not merit a new trial. 

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.

Under G.S. 14-51.4, a person may not claim self-defense if the person was attempting a felony, committing a felony, or escaping from the commission of a felony at the time of the use of force. The defendant was charged with first-degree murder, armed robbery, and fleeing to elude in Cumberland County. He claimed self-defense and testified on his behalf. Evidence showed that the defendant had multiple prior felony convictions and that he possessed a weapon at the time of the murder. The trial court gave a general instruction on statutory self-defense and instructed the jury that the defendant could not claim self-defense if he was committing the felony of possession of firearm by a felon at the time of his use of force. The jury convicted on all counts and the defendant was sentenced to life without parole. On appeal, the Court of Appeals affirmed, finding that the defendant was disqualified from claiming statutory self-defense under State v. Crump, 259 N.C. App. 144 (2018) (strictly interpreting the felony disqualification) and determining that G.S. 14-51.4 supplanted the common law right in the situations covered by the statute. On discretionary review, the Supreme Court modified and affirmed.

(1)  The trial court and Court of Appeals correctly rejected the defendant’s argument that the statutory self-defense disqualification did not apply because the defendant was claiming common law, rather than statutory, self-defense. The Court agreed with the lower courts that G.S. 14-51.3 and 14-51.4 were intended to abolish the common law right to perfect self-defense in the circumstances identified by the statute, noting that the language of G.S. 14-51.3 closely followed the common law definition of self-defense and that the legislature had failed to express an intent to retain the common law (unlike other parts of the statutory self-defense laws, where such an intention was expressly stated). In the words of the Court:

[A]fter the General Assembly’s enactment of G.S. 14-51.3, there is only one way a criminal defendant can claim perfect self-defense: by invoking the statutory right to perfect self-defense. Section 14-51.3 supplants the common law on all aspects of the law of self-defense addressed by its provisions. Section 14-51.4 applies to the justification described in G.S. 14-51.3. Therefore, when a defendant in a criminal case claims perfect self-defense, the applicable provisions of G.S. 14-51.3—and, by extension, the disqualifications provided under G.S. 14-51.4—govern. McLymore Slip op. at 8-9 (cleaned up).

The trial court therefore did not err by instructing the jury on statutory self-defense, including on the felony disqualifier.

(2) The defendant’s objections to the jury instructions were sufficient to preserve his arguments relating to a “causal nexus” requirement for the felony disqualification provisions of G.S. 14-51.4, and his arguments were also apparent from the record. Among other reasons, the State argued, and the trial court relied on, the Crump decision (finding no causal nexus requirement for the felony disqualifier) in rejecting the defendant’s proposed jury instruction.

(3) The Court agreed that G.S.14-51.4 must be read to require a nexus between the defendant’s use of force and felony conduct used to disqualify the defendant from use of defensive force. A strict interpretation of this statute would lead to absurd and unjust results and would also contract the common law right to self-defense. “[A]bsent a causal nexus requirement, each individual [committing a felony not related to the need for defensive force] would be required to choose between submitting to an attacker and submitting to a subsequent criminal conviction.” McLymore Slip op. at 18. The Court also noted that a broad interpretation of the felony disqualifier may violate the North Carolina Constitution’s protections for life and liberty. N.C. Const. art. I, sec. 1. The Court therefore held that the State has the burden to demonstrate a connection between the disqualifying felony conduct and the need for the use of force, and the jury must be instructed on that requirement. Crump and other decisions to the contrary were expressly overruled. In the Court’s words:

[W]e hold that in order to disqualify a defendant from justifying the use of force as self-defense pursuant to N.C.G.S. § 14-51.4(1), 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. The State must introduce evidence that ‘but for the defendant’ attempting to commit, committing, or escaping after the commission of a felony, ‘the confrontation resulting in injury to the victim would not have occurred.’ McLymore Slip op. at 20.

(4) Though the trial court’s instructions on the felony disqualification were erroneous, this error did not prejudice the defendant under the facts of the case. The jury convicted the defendant of armed robbery based on his theft of the victim’s car immediately after the murder. This necessarily showed that the jury found the defendant was committing or escaping from the commission of a felony related to his need to use force. According to the court:

Based upon the outcome of McLymore’s trial, it is indisputable that there existed an immediate causal nexus between his felonious conduct and the confrontation during which he used assertedly defensive force, and the felony disqualifier applies to bar his claim of self-defense. Id. at 23.

However, the Court rejected the State’s argument that the defendant would be categorically barred from self-defense with a firearm due to this status as a convicted felon. The defendant was not charged with possession of firearm by felon in the case and had no opportunity to defend against that charge. Additionally, the jury was not instructed on a causal connection between the defendant’s mere possession of the firearm and his need for use of force. According to the Court:

To accept the State’s argument on this ground would be to effectively hold that all individuals with a prior felony conviction are forever barred from using a firearm in self-defense under any circumstances. This would be absurd. Id. at 22.

The Court of Appeals was therefore modified and affirmed. Chief Justice Newby wrote separately to concur in result only, joined by Justice Barringer. They would have found that the causal nexus argument was not preserved and should have not been considered. Alternatively, they would have ruled that the felony disqualification does not require a causal nexus.

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.

 

(1) Reversing the Court of Appeals in this first-degree felony murder case, the court held that the trial court did not commit reversible error by failing to instruct the jury on the lesser included offenses of second-degree murder and voluntary manslaughter. The underlying felony for first-degree felony murder was discharging a firearm into an occupied vehicle in operation. The trial court denied the defendant’s request for instructions on second-degree murder and voluntary manslaughter. The Court of Appeals held that it was error not to instruct on the lessers because the evidence was conflicting as to whether the defendant acted in self-defense. The court found this reasoning incorrect, noting that self-defense is not a defense to felony murder. Perfect self-defense may be a defense to the underlying felony, which would defeat the felony murder charge. Imperfect self-defense however is not available as a defense to the underlying felony use to support a felony murder charge because allowing such a defense when the defendant is in some manner at fault “would defeat the purpose of the felony murder rule.” In order to be entitled to instructions on the lesser included offenses, “the conflicting evidence must relate to whether defendant committed the crime charged, not whether defendant was legally justified in committing the crime.” Here, there is no conflict regarding whether the defendant committed the underlying felony. The defendant does not dispute that he committed this crime; rather he claims only that his conduct was justified because he was acting in self-defense. (2) Reversing the Court of Appeals, the court held that the trial court did not commit plain error when it instructed the jury on the aggressor doctrine of self-defense. The trial court instructed the jury on perfect self-defense including the aggressor doctrine (that a defendant is not entitled to the benefit of self-defense if he was the aggressor); the defendant did not object. When there is no evidence that a defendant was the initial aggressor, it is reversible error for the trial court to instruct on the aggressor doctrine. The Court of Appeals determined that there was no evidence that the defendant was the aggressor. It failed however to analyze whether such error had the type of prejudicial impact that seriously affected the fairness, integrity or public reputation of the judicial proceeding. Therefore, that court’s analysis was insufficient to conclude that the alleged error constituted plain error. The court found it unnecessary to decide whether an instruction on the aggressor doctrine was improper because the defendant failed to show that the alleged error was so fundamentally prejudicial as to constitute plain error.

The court affirmed the decision below in State v. Monroe, 233 N.C. App. 563 (April 15, 2014) (holding, over a dissent, that even assuming arguendo that the rationale in United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), applies in North Carolina, the trial court did not err by denying the defendant’s request to give a special instruction on self-defense as to the charge of possession of a firearm by a felon; the majority concluded that the evidence did not support a conclusion that the defendant possessed the firearm under unlawful and present, imminent, and impending threat of death or serious bodily injury).

State v. Cruz, 364 N.C. 417 2010-10-08 aff’d per curiam, 203 N.C. App. 230 (Apr 6 2010)

The court affirmed per curiam State v. Cruz, 203 N.C. App. 230 (Apr. 6, 2010) (holding, in a murder case, and over a dissenting opinion, that an instruction on self-defense was not required where there was no evidence that the defendant believed it was necessary to kill the victim in order to save himself from death or great bodily harm).

The trial court erred by refusing to instruct the jury on self-defense and defense of a family member. Viewed in the light most favorable to the defendant, the evidence showed that the defendant was at his produce stand; the victim was a 16-year-old male, approximately 6 feet tall and 180 pounds; the victim had a physical altercation with the defendant’s wife as he attempted to rob the cash box; the victim struck at the defendant’s wife and violently pulled at the cash box; the defendant’s wife, was “scared to death” and cried out for her husband; when the defendant ordered the victim to “back off”, the victim did so, but placed his hand in his pocket, and as he again approached the defendant and the defendant’s wife, began to pull his hand from his pocket; and defendant shot the victim once because he feared for the safety of his wife, his grandson, and himself. The defendant’s evidence was sufficient to show that he believed that it was necessary to use force to prevent death or great bodily injury to himself or a family member. 

In this Union County case, defendant appealed his convictions for attempted first-degree murder, discharging a weapon into an occupied property, and assault with a deadly weapon inflicting serious injury, arguing error in failing to instruct the jury on self-defense. The Court of Appeals agreed, granting defendant a new trial.

In December of 2021, defendant and two friends stopped at a local store to purchase snacks, and defendant recognized another man, a purported gang member, from an Instagram video where he threatened to shoot up defendant’s home. Defendant and his friends got into a dispute with this man and another possible gang member, eventually leading to shots being fired. Based on defendant’s testimony, he initially attempted to prevent the gun violence, but after shots were fired, he retaliated, hitting the eventual victim. Defendant cooperated with law enforcement the next day, surrendering his firearm and giving a statement. At trial, defense counsel requested an instruction on self-defense, but the trial court denied the request, as the trial court felt case law precluded giving the instruction in this case.

Taking up the self-defense argument, the Court of Appeals noted that “a defendant who presents competent evidence of self-defense at trial is entitled to a jury instruction on this defense.” Slip Op. at 6. After establishing the statutory basis for self-defense under G.S. 14-51.3(a) and the applicability of perfect and imperfect self-defense, the court examined the evidence in the light most favorable to defendant. The court concluded “the evidence is sufficient to support an instruction of at least imperfect self-defense, if not perfect self-defense” and conflicting evidence about the initial aggressor “[must] be resolved by the jury, after being fully and properly instructed.” Id. at 10.

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 Guilford County case, defendant appealed his convictions for first-degree murder based on felony murder, armed robbery, and possession of a stolen vehicle, arguing error in (1) denying his motion to dismiss the armed robbery charge and (2) not instructing the jury that self-defense could justify felony murder based on armed robbery. The Court of Appeals found no error. 

In August of 2018, defendant was staying at the apartment of a female friend when a series of phone calls from another man woke him up. Defendant went to the parking lot to confront the other man (the eventual murder victim), and defendant testified that the man threatened to kill him. At that point, defendant shot the victim four times, then after a few minutes, stole the victim’s car. The victim’s car was found abandoned in a field a day later. Defendant was indicted for first-degree murder based on felony murder, with the underlying felony being armed robbery. Defendant moved to dismiss the murder and robbery charges, arguing there was insufficient evidence the shooting and taking of the vehicle occurred in a continuous transaction. The trial court denied the motion. 

Taking up (1), the Court of Appeals noted that temporal order of the felony and the killing does not matter for a felony murder charge, as long as they are a continuous transaction. Here, the time period between the shooting and defendant taking the victim’s car was short, only “a few minutes” after the shots. Slip Op. at 6. The court also noted that “our Supreme Court has repeatedly rejected arguments a defendant must have intended to commit armed robbery at the time he killed the victim in order for the exchange to be a continuous transaction.” Id. at 7-8. Here, evidence supported the finding of a continuous transaction, and whether defendant initially intended to steal the car was immaterial. 

Moving to (2), the court pointed to precedent that self-defense is not a defense for felony murder, but it can be a defense to the underlying felony. However, the court explained that “[b]ased on our precedents, self-defense is inapplicable to armed robbery[,]” and because armed robbery was the underlying felony in this case, defendant was not entitled to a jury instruction on self-defense. Id. at 11.  

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 [Duplicated], 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 first-degree murder case, the trial court properly declined to resolve the defendant’s castle doctrine defense before trial, properly denied the defendant’s motion to dismiss, and properly instructed the jury on the elements of the castle doctrine.

The defendant argued that the trial court erred by refusing to resolve her castle doctrine defense prior to trial because the language of G.S. 14-51.2(e) providing that a person is “immune from civil or criminal liability” when he or she satisfies the castle doctrine criteria suggests that the issue of whether a person qualifies for the defense must be resolved by judge rather than a jury.  Engaging in statutory construction, the court explained through various examples that in the context of the criminal law, the General Statutes use the phrase “immunity from prosecution” when describing the traditional form of immunity equating to a right not to be forced into court to defend oneself.  In contrast, the court explained that the immunity provided by the castle doctrine is “immunity from a conviction and judgment, not the prosecution itself.”  The court bolstered this conclusion by noting that traditional immunities from prosecution typically involve little or no fact determination while the castle doctrine “can involve deeply fact-intensive questions.”

The court went on to conclude that there was sufficient evidence from which the jury could determine that the State had rebutted the castle doctrine’s presumption of reasonable fear and also sufficient evidence of premeditation and deliberation.  The State’s evidence showed that a bystander saw the defendant in her driveway with a gun standing over the unarmed victim as he pleaded “Please, please, just let me go. Let me go.”  The bystander then saw the defendant take several steps back and shoot the victim in the head from three to six feet away.  In the light most favorable to the State, this was sufficient evidence to overcome the defendant’s motions to dismiss based on both the castle doctrine and a lack of premeditation and deliberation.

Finally, the court determined that the trial court did not err in its instruction to the jury concerning the castle doctrine.  The jury instruction used language mirroring that of G.S. 14-51.2 and was crafted with significant input from the parties.  While the instruction specifically identified only the criteria of G.S. 14-51.2(c)(5) as an avenue for rebutting the defendant’s presumption of fear, it did not, consistent with state law on the issue, instruct that the criteria of subsection (c)(5) was the only means of rebuttal and instead left the issue for the jury’s determination based on the facts of 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.

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 [Duplicated], ___ 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 assault case, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the charges due to the insufficiency of the evidence. The defendant asserted that the State’s own evidence showed that the defendant acted in self-defense after he was violently assaulted. The defendant argued that because the State’s evidence tended only to exculpate the defendant, his motion to dismiss should have been granted. The court found that the evidence did not tend only to exculpate the defendant. Rather, there was substantial evidence to contradict the defendant’s claim of self-defense.

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 [Duplicated], ___ 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 a case where the defendant was found guilty of involuntary manslaughter on the theory that he committed an unlawful act which proximately caused the victim’s death, the trial court committed reversible error by refusing to give a jury instruction on defense of others as an affirmative defense to the unlawful act at issue. The defendant was involved in an altercation at a waterfront bar that resulted in the death of the victim. The defendant’s version of the events was that the victim fell into the water and drown after physical contact by the defendant; the defendant claimed to be defending his friend Jimmy, who had been shoved by the victim. The unlawful act at issue was the offense of affray. On appeal the defendant argued that the trial court committed reversible error by refusing to instruct the jury on defense of others as an affirmative defense to the crime of affray. The defendant asserted that his only act—a single shove—was legally justified because he was defending his friend and thus was not unlawful. The court agreed. It noted that the state Supreme Court has previously sanctioned the use of self-defense by a defendant as an appropriate defense when the defendant is accused of unlawfully participating in affray. Where, as here, the State prosecuted the defendant for involuntary manslaughter based on the theory that the defendant committed an unlawful act (as opposed to the theory that the defendant committed a culpably negligent act) “the defendant is entitled to all instructions supported by the evidence which relate to the unlawful act, including any recognized affirmative defenses to the unlawful act.” Here, the evidence supports the defendant’s argument that the instruction on defense of others was warranted. Among other things, there was evidence that Jimmy felt threatened when shoved by the victim; that the defendant immediately advanced towards the victim in response to his contact with Jimmy; that the victim punched and kicked the defendant; and that the defendant only struck the victim once. The defendant was thus entitled to a defense of others instruction to affray. The court was careful to note that it took no position as to whether the defendant did in fact act unlawfully. It held only that the defendant was entitled to the instruction. The court also noted that the issue in this case is not whether self-defense is a defense to involuntary manslaughter; the issue in this case is whether self-defense is an affirmative defense to affray, the unlawful act used as the basis for the involuntary manslaughter charge.

 

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.”

In this assault with a deadly weapon case involving two neighbors, the trial court did not err by denying the defendant’s request for an instruction on self-defense. The defendant provoked the confrontation by willingly and voluntarily leaving his property and entering the victim’s property with a loaded rifle. The defendant was not forced into the confrontation. The defendant escalated the confrontation by affirmatively opting to retrieve his rifle, loaded, and carry it with him on to the victim’s property. No evidence showed that the victim possessed a weapon during the altercation or that the defendant had a good faith belief that the victim was armed. The defendant fired the first shot before the victim made any threatening movement. Thus, the defendant was not justified under G.S. 14-51.3 or 14-51.4 to use deadly force against the victim and claim self-defense.

The trial court did not commit plain error when it instructed the jury on attempted first-degree murder but failed to instruct on imperfect self-defense and on attempted voluntary manslaughter. In light of the fact that “the State introduced abundant testimony supporting a finding of defendant’s murderous intent,” the court held that the defendant failed to demonstrate that if the trial court had instructed on imperfect self-defense, the jury probably would have acquitted defendant of attempted first-degree murder. 

The trial court did not err by denying defendant’s request for an instruction on duress or necessity as a defense to possession of a firearm by a felon. On appeal, defendant urged the court to adopt the reasoning of United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), an opinion recognizing justification as an affirmative defense to possession of a firearm by a felon. The court declined this invitation, instead holding that assuming without deciding that the Deleveaux rule applies, defendant did not satisfy its prerequisites. Specifically, even when viewed in the light most favorable to defendant, the evidence does not support a conclusion that defendant, upon possessing the firearm, was under unlawful and present, imminent, and impending threat of death or serious bodily injury.

In this homicide case in which defendant was found guilty of second-degree murder, the trial court did not err by denying defendant’s request to instruct the jury on voluntary manslaughter based on imperfect self-defense. The trial court instructed the jury on first-degree murder, second-degree murder and voluntary manslaughter based on heat of passion. During the charge conference, defendant requested an instruction on voluntary manslaughter based on imperfect self-defense. The trial court denied this request. On appeal, defendant argued that evidence of his stature and weight compared with that of the victim and testimony that the victim held him in a headlock when the stabbing occurred was sufficient to allow the jury to infer that he reasonably believed it was necessary to kill the victim to protect himself from death or great bodily harm. The court disagreed, concluding:

Here, the uncontroverted evidence shows that defendant fully and aggressively participated in the altercation with [the victim] in the yard of [the victim’s] home. No evidence was presented that defendant tried to get away from [the victim] or attempted to end the altercation. Where the evidence does not show that defendant reasonably believed it was necessary to stab [the victim], who was unarmed, in the chest to escape death or great bodily harm, the trial court properly denied defendant’s request for a jury instruction on voluntary manslaughter based upon imperfect self-defense.

In this assault and second-degree murder case, the trial court did not err by refusing to instruct the jury on self-defense and by omitting an instruction on voluntary manslaughter. The court noted that the defendant himself testified that when he fired the gun he did not intend to shoot anyone and that he was only firing warning shots. It noted: “our Supreme Court has held that a defendant is not entitled to jury instructions on self-defense or voluntary manslaughter ‘while still insisting . . . that he did not intend to shoot anyone[.]’” 

The trial court erred by instructing pursuant to G.S. 14-51.4 (justification for defensive force not available) where the statute, enacted in 2011, did not apply to the 2006 incident in question.

In this murder case, the trial court did not err by denying the defendant’s request to instruct the jury on self-defense and imperfect self-defense. The defendant never testified that he thought it was necessary or reasonably necessary to kill his wife, the victim, to protect himself from death or great bodily harm; he only testified that his wife was holding a stun gun and that he pushed her up against the bathroom cabinets to keep her from using it. The defendant was able to push the stun gun into his wife’s side and ultimately subdued her. He did not state that he feared for his life or that he feared he might suffer great bodily harm. 

The trial court did not commit plain error by failing to instruct the jury on self-defense with respect to a charge of discharging a firearm into an occupied vehicle. The trial court instructed the jury regarding self-defense in its instructions for attempted first-degree murder and assault. For the discharging a firearm charge, the trial court did not give the full self-defense instruction, but rather stated that the jury must find whether the defendant committed the offense without justification or excuse. At the jury instruction conference the defendant agreed to this instruction. The court found that the trial court placed the burden of proof on the State to satisfy the jury beyond a reasonable doubt that the defendant did not act in self-defense when he shot at the car. It also noted that the defendant agreed to the proposed instruction and that the jury found the defendant guilty of the other charges even though each included a self-defense instruction.

In this murder case, the trial court did not err by denying the defendant’s request for jury instructions on self-defense and voluntary manslaughter. The defendant’s theory was that the gun went off accidentally. Additionally, there was no evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm.

(1) The trial court did not err by denying the defendant’s motion to dismiss homicide charges. The defendant argued that the evidence showed perfect self-defense. Noting that there was some evidence favorable to the defendant as to each of the elements of perfect self-defense, the court concluded that there was also evidence favorable to the State showing that the defendant’s belief that it was necessary to kill was not reasonable, and that defendant was the aggressor or used excessive force. (2) The trial court did not commit plain error by instructing the jury that the defendant would lose the right to self-defense if he was the aggressor. The defendant had argued that the State failed to put forth evidence that the defendant was the aggressor.

(1) The trial court did not err by failing to include self-defense in its mandate on felony-murder charges that were based on the underlying offenses of attempted robbery. Self-defense is only relevant to felony-murder if it is a defense to the underlying felony. The court continued: “We fail to see how defendant could plead self-defense to a robbery the jury found he had attempted to commit himself.” (2) The trial court did not err by failing to include self-defense in its mandate on felony-murder charges based on underlying assault offenses. The trial court gave the full self-defense instructions with respect to the assault charges. It then referenced these instructions, and specifically the self-defense instructions, in its instructions concerning felony-murder based upon the assault charges. Taken as a whole, this was not error.

The trial court committed plain error by instructing the jury that the defendant was not entitled to the benefit of self-defense if she was the aggressor when no evidence suggested that the defendant was the aggressor.

The trial court did not commit plain error by failing to instruct on perfect or imperfect self-defense or perfect or imperfect defense of others where no evidence supported those instructions. 

The trial court did not commit plain error by failing to instruct on defense of others. The defendant’s statement that he was defending himself, his vehicle and his wife was not evidence from which the jury could find that the defendant reasonably believed a third person was in immediate peril of death or serious bodily harm at the hands of another.

In an assault with a deadly weapon with intent to kill inflicting serious injury case where the weapon was not a deadly weapon per se, the trial court did not err by declining to give self-defense instruction N.C.P.I.—Crim. 308.40 and did not commit plain error by declining to give self-defense instruction N.C.P.I.—Crim. 308.45 over the defendant’s objection. The court clarified that when a defendant is charged with assault with a deadly weapon and the weapon is a deadly weapon per se, the trial judge should instruct that the assault would be excused as being in self-defense only if the circumstances would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself or herself from death or great bodily harm. If, however, the weapon is not a deadly weapon per se, the trial judge should further instruct the jury that if they find that the defendant assaulted the victim but do not find that the defendant used a deadly weapon, that assault would be excused as being in self-defense if the circumstances would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself or herself from bodily injury or offensive physical contact.

The trial court committed plain error by charging the jury with a self-defense instruction that related to assaults not involving deadly force (N.C.P.I.—Crim. 308.40) when the defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury. The court explained: “in those cases where the weapon is not a deadly weapon per se, but . . . the trial judge concludes on the evidence . . . that the weapon used was a deadly weapon as a matter of law, the jury should be instructed that the assault would be excused as being in self-defense only if the circumstances at the time the defendant acted were such as would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself from death or great bodily harm.” The instruction given lessened the State’s burden of proving that the defendant did not act in self-defense.

In a murder case, the trial court did not err by declining to instruct on self-defense where there was no evidence that would support a finding that the defendant reasonably believed that he needed to use deadly force against the victim to prevent death or serious bodily injury. Although the victim had threatened the defendant repeatedly, there was no evidence that he threatened to kill the defendant or attempted to harm him. There was no evidence that anyone had ever seen the victim with a weapon or attack another person. There was no indication that the victim had a reputation for violence; in fact, although the victim was angry with the defendant for a while, their conflict had never escalated beyond threats. There was no evidence that the victim threatened to hurt or attack the defendant on the day in question or that the encounter between them was more heated than earlier disputes. Instead, the evidence established that the defendant approached the victim with a gun, fired multiple shots at the victim, and continued firing as the victim attempted to retreat. The victim’s prior threats against the defendant, without more, did not establish a reasonable need for deadly force. The defendant’s description of the victim’s conduct immediately prior to the shooting did not, whether considered in isolation or in the context of the victim’s prior threats, suffice to support a self-defense instruction. The fact that the victim may have been “edging up” on the defendant while reaching behind his back did not support a finding that the defendant reasonably believed that he needed to use lethal force given that the defendant did not claim to have seen the victim with a weapon on that or any occasion, the victim had not threatened him immediately prior to the shooting, and the defendant had no other objective basis, aside from prior threats, for believing that the victim was about to attack him and create a risk of death or great bodily injury.

The trial court did not commit plain error by instructing the jury that a defendant acting in self-defense is guilty of voluntary manslaughter if he was the aggressor, where there was sufficient evidence suggesting that the defendant was indeed the aggressor. Although the trial court erred by failing to include an instruction on no duty to retreat, the error did not rise to the level of plain error given the evidence suggesting that the defendant used excessive force and was the aggressor.

The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree murder based on the defendant’s contention that he acted in self-defense where the evidence was sufficient to establish that rather than acting in self-defense, the defendant went armed after the victim to settle an argument.

No error, much less plain error, occurred when the trial judge gave a self defense instruction based on NCPJI – Crim. 308.45. Although the court found the wording of the pattern instruction confusing as to burden of proof on self defense, it concluded that the trial court properly edited the pattern instruction by repeatedly telling the jury that the State had the burden of proving beyond a reasonable doubt that defendant’s actions were not in self-defense. 

Reversing and remanding for a new trial where, despite the fact that there was no evidence that the defendant was the aggressor, the trial judge instructed the jury that in order to receive the benefit of self-defense, the defendant could not have been the aggressor. 

On discretionary review of a unanimous, unpublished decision below, the court reversed, ruling on the “Turner issue” presented in this case and holding that the misdemeanor DWI prosecution was not barred by the two-year statute of limitations in G.S. 15-1. On 1 August 2012, the defendant was cited for DWI. A magistrate’s order was issued on 9 August 2012. On 21 April 2015, the defendant objected to trial on the citation and moved for a statement of charges and to dismiss. The defendant argued that because she was filing a pretrial objection to trial on a citation, the State typically would be required to file a statement of charges. However, she further argued that because G.S. 15-1 establishes a two-year statute of limitations for misdemeanors, the charges must be dismissed. In a Preliminary Indication, the District Court found a statute of limitations bar and dismissed the charges. The State appealed to Superior Court, arguing that the magistrate’s order tolled the statute of limitations. The Superior Court affirmed the District Court’s Preliminary Indication and the State appealed to the Court of Appeals. That court found the procedural and legal issues identical to those in State v. Turner, ___ N.C. App. ___, 793 S.E.2d 287 (2016), adopted the reasoning of that decision, and held that the District Court did not err by granting the motion to dismiss. The State again sought review, arguing that any criminal pleading that establishes jurisdiction in the district court tolls the two-year statute of limitations. The Supreme Court agreed. The Supreme Court found the citation was a constitutionally and statutorily proper criminal pleading that conveyed jurisdiction to the District Court to try the defendant for the charged misdemeanor. The court went on to hold that the citation tolled the statute of limitations. The court found itself unable to “conclude that the General Assembly intended the illogical result that an otherwise valid criminal pleading that vests jurisdiction in the trial court would not also toll the statute of limitations.”

State v. Stevens, ___ N.C. App. ___, 831 S.E.2d 364 2019-07-02 temp. stay granted, ___ N.C. ___, 829 S.E.2d 907 (Aug 1 2019)

Defendant was charged with two counts of misdemeanor death by motor vehicle by citation on December 24, 2013. On December 21, 2015, the state filed a misdemeanor statement of charges alleging the same offenses. While those charges were pending in district court, the grand jury issued a presentment for the offenses on March 7, 2016, and the state obtained a corresponding indictment on March 21, 2016. The defense filed a motion to dismiss, arguing that the superior court indictments were obtained after the two-year statute of limitations for the offense had run. The trial court granted the motion. 

The Court of Appeals reversed and remanded. Pursuant to State v. Curtis, 371 N.C. 355 (2018), the citation and misdemeanor statement of charges filed in district court tolled the statute of limitations. The court rejected the defendant’s argument that the presentment and indictment “annulled” the original district court prosecution, thereby making the new charges in superior court untimely. The original charges were still pending in district court at the time the state obtained the indictment, and “[i]f an action in District Court was properly pending, as it was here, the statute of limitations continued to be tolled.”

The statute of limitations applicable to misdemeanor offenses does not apply when the issue of a defendant’s guilt of a misdemeanor offense is submitted to the jury as a lesser included offense of a properly charged felony. Applying this rule, the court held that the two-year misdemeanor statute of limitations does not bar conviction for misdemeanor common law obstruction of justice when the misdemeanor was submitted to the jury as a lesser-included offense of felonious obstruction of justice, the crime charged in the indictment.

In 2018, the defendant was charged with felony breaking or entering a motor vehicle and other crimes for an incident involving the theft of several items from a car. Before trial, the defendant gave notice of her intent to raise a defense of voluntary intoxication. The trial court denied her request for an instruction on voluntary intoxication, concluding that the evidence showed that she spoke clearly, was responsive to questions, walked under her own power, and followed instructions from officers. The Court of Appeals held over a dissent that the trial court did not err in declining to give the instruction. State v. Meader, 269 N.C. App. 446 (2020). On appeal, the Supreme Court applied the standard that, to obtain a voluntary intoxication instruction, a defendant must produce substantial evidence supporting a conclusion that she was so intoxicated that she could not form the specific intent to commit the crime. Reviewing the evidence, the high court concluded that the defendant’s behavior, while periodically unusual, did not show her to be “utterly incapable” of forming specific intent. To the contrary, the evidence showed her to be aware of surroundings and in control of her faculties, both before and after the police arrived. The court thus held that the trial court did not err and affirmed the decision of the Court of Appeals.

Justice Hudson, joined by Justice Morgan and Justice Earls, dissented. She wrote that the evidence, when viewed in the light most favorable to the defendant, could lead a rational factfinder to conclude that she was unaware that she had taken another’s property.

In this Cumberland County case, defendant appealed his first-degree murder conviction, arguing error in failing to instruct the jury on (1) the affirmative defense of voluntary intoxication, and (2) the lesser-included offense of second-degree murder. The Court of Appeals disagreed, finding no error. 

Defendant’s wife was found dead in their home in February of 2021. Leading up to the discovery, defendant’s wife had expressed fears that he would shoot her, and told family and friends that defendant kept a handgun on the nightstand. The wife’s pastor and deacon from her church noticed bruises on her neck, and she admitted to them that they came from defendant. Early in the morning on the day defendant’s wife was found dead, defendant called his daughter to confess that he had killed her. At trial, an expert testified that the wife was shot ten times with a single-action revolver, which required the shooter to cock the hammer and pull the trigger each time it was fired. The revolver also held only six rounds, requiring a reload for the ten rounds fired into the wife’s body. Defendant testified at trial and claimed that his wife’s niece had shot her. At the charge conference, defense counsel requested a jury instruction on second-degree murder, but the trial court denied this request. Defendant did not request an instruction on voluntary intoxication.

Considering (1) defendant’s defense of voluntary intoxication, the Court of Appeals noted the standard of review was plain error, as “the trial court explicitly asked if Defendant wanted to include voluntary or involuntary intoxication instructions, to which his counsel declined.” Slip Op. at 4. The court could not find plain error, as defendant was a heavy drinker and testified that he had consumed a normal amount of alcohol for his tolerance, and “[i]n his own testimony, Defendant said he ‘got drunk’ after the killing because his wife was dead, indicating he was not already drunk during the killing.” Id. at 6. Additionally, he recalled the events of the day and night, and was clear-headed enough to attempt to hide the revolver before law enforcement arrived. 

Turning to (2), the court explained that a defendant is entitled to an instruction on second-degree murder “where the State’s evidence, if believed, is capable of conflicting reasonable inferences either that (1) the defendant premeditated/deliberated a specific intent to kill or, alternatively, (2) the defendant merely premeditated/deliberated an assault.” Id. at 9. Here, the court found only one possible conclusion, that “Defendant specifically intended to kill his wife.” Id. The court arrived at this conclusion based on the number of shots fired with a cumbersome weapon, the lack of defensive wounds, the history of defendant’s threats, and defendant’s history of physical abuse towards his wife. 

In this Guilford County case, defendant appealed his convictions for breaking and entering, larceny, possession of a firearm by a felon, and resisting a public officer, arguing error in (1) denying his request for a jury instruction on voluntary intoxication, and (2) not specifically identifying the firearm during the jury instruction for possession of a firearm by a felon. The Court of Appeals disagreed, finding no error. 

In May of 2021, defendant and an accomplice broke into a pharmacy; after police responded, the men fled the pharmacy, and defendant dropped a gun in the parking lot while running from the officers. After searching the vehicle left at the scene, police found two more firearms and other stolen goods. After defendant was indicted, he filed a notice of defense asserting that he was too intoxicated to form the necessary specific intent for the offenses. During the charge conference, the trial court denied defendant’s request for a jury instruction on voluntary intoxication. Defendant was subsequently convicted, and appealed.

Taking up (1), the Court of Appeals noted “[t]o obtain a voluntary intoxication instruction, a defendant ‘must produce substantial evidence which would support a conclusion by the judge that he was so intoxicated that he could not form’ the specific intent to commit the underlying offenses.” Slip Op. at 5, quoting State v. Mash, 323 N.C. 339, 346 (1988). However, the court pointed out that “mere intoxication” was not sufficient, and that evidence had to show the defendant had lost his ability to think and plan due to the overconsumption of intoxicants. Id. Here, although defendant testified to consuming a large amount of cocaine over several days, the court highlighted instances of defendant recalling the events of the pursuit and arrest, as well as his interview at the police station. The court concluded defendant failed to produce evidence sufficient to justify the voluntary intoxication instruction. 

Turning to (2), the court noted that plain error was the applicable standard as defendant did not object to the jury instruction on possession of a firearm at trial. While the trial court did not specify which firearm defendant possessed in the instruction, the series of events where defendant fled the pharmacy and dropped a gun in the parking lot allowed for only one specific gun to be relevant. The other two firearms found at the scene were inside the vehicle and could not have been possessed by defendant. As a result, defendant could not demonstrate plain error. 

Judge Murphy concurred in the result only as to (1), and concurred as to (2). 

In this Richmond County case, the defendant was found guilty by a jury of first-degree murder, attempted first-degree murder, and assault with a deadly weapon with intent to kill for shooting an acquaintance during an argument, and, during the same incident, shooting another acquaintance who was standing nearby in the leg. The defendant had been drinking for more than six hours before he shot the victims. After he began drinking and several hours before the shooting, he displayed a gun in front of a child. After the shooting, he drove to another acquaintance’s house and honked his car horn for thirty minutes.  At trial, he requested that the judge instruct the jury on voluntary intoxication. The judge refused this request.

(1) On appeal, the defendant argued that the trial court erred by refusing to instruct the jury on voluntary intoxication. The defendant contended there was substantial evidence that, because of his intoxication, he could not form a deliberate and premeditated intent to kill the victim. The Court of Appeals concluded that although there was evidence that the defendant was very intoxicated and acted recklessly some hours before the shooting, there was not substantial evidence that he was intoxicated to the point he could not control himself and could not form the intent to kill the victim. The Court noted that the defendant shot and killed the victim following an argument and then drove away from the scene, arriving at an acquaintance’s house without getting into an accident. Hours after the shooting, he told officers that he shot the deceased victim in self-defense. Thus, the Court concluded that the trial court did not err in not instructing the jury on voluntary intoxication.

(2) The defendant also argued on appeal that the trial court erred in admitting the handgun used in the shootings during testimony from the pawnbroker who transferred the gun to the defendant. This took place early in the trial and before the State presented evidence that the handgun was used to shoot the victims. The Court of Appeals determined that the trial court did not err in admitting the handgun before its relevance had been established as the State later presented evidence connecting the handgun to the shootings. The defendant also argued that the trial court erred by admitting the handgun because the State did not establish a chain of custody. Even assuming the defendant preserved this issue for appeal and that the trial court erred in this regard, the Court found that the error did not prejudice the defendant in light of other overwhelming evidence of the defendant’s guilt.

In this Mitchell County case, the defendant was convicted of first-degree murder (based on the theories of (a) malice, premeditation and deliberation; (b) felony murder; and (c) torture), possession of a firearm by a convicted felon, conspiracy to commit first-degree murder, and first-degree kidnapping for his role in the death of the victim after several days of subjecting the victim to physical abuse and death threats, interspersed with the defendant’s (and the victim’s) use of methamphetamine.

Apparently believing that the victim, an addict to whom the defendant supplied methamphetamine, had informed law enforcement officers about the defendant’s drug trafficking, the defendant began to threaten and assault the victim, firing pistol rounds near his feet, striking him, putting him in a chokehold, threatening to kill him, and asking others, in the victim’s presence, if the victim should live or die. After smoking methamphetamine with the victim and others, the defendant told the victim that people from Georgia had arrived “to take care of” him, took him outside of a house where a laser beam was focused on him, and asked him if he was ready to die. When the victim attempted to run away, the defendant tackled him and dragged him back toward the house. The defendant then used his cell phone to record the victim pleading for his life. Over the next two days, the group used more methamphetamine and the defendant continued to threaten to kill the victim, to physically abuse him, to prevent him from leaving – at one point binding the victim’s hands with duct tape -- and to film him confessing to various acts. On the third day, the defendant shot the victim in the left shin and obtained a telephone cord to “make [the victim] hang himself.” The victim’s face was turning blue when the cord broke and he fell to the ground. The defendant eventually threw the victim into the yard, telling others on the scene that they could either “get involved or [they] could be next.” The defendant ordered others to hit the victim with a large rock. The defendant then ordered his girlfriend to shoot the victim or he was “gonna hurt [them] all.” The woman shot the victim once in the side of the head, killing him. The defendant then told others to help him dispose of the victim’s body.

(1) The defendant argued on appeal that the trial court erred by denying his request for a jury instruction on voluntary intoxication, asserting that his consumption of methamphetamine defeated his ability to form the specific intent necessary to support first-degree murder based on malice, premeditation and deliberation and the felony-murder rule and first-degree kidnapping. Noting that to be entitled to such an instruction, the defendant must produce substantial evidence that he was so intoxicated he could not inform a deliberate and premeditated intent to kill, the Court of Appeals held that the defendant did not satisfy this requirement. Testimony regarding defendant’s consumption of methamphetamine and his girlfriend’s testimony that he was “wigging” -- meaning that he believed things that were not present were in fact present -- were not enough.

The court reasoned that the defendant’s actions showed that he intended to kill the victim. He brandished a gun, saying he “smelled death.” He wondered out loud about what he would do with the witnesses if he killed the victim, ordered others to hit the seriously-injured victim with a large rock, told his girlfriend to shoot the victim, orchestrated the disposal of the victim’s body, kept a bullet he used to shoot the victim in the leg as a trophy, fled to Georgia after the killing, told his family what he did, and showed videos he recorded of the victim.

The Court also found ample evidence of defendant’s specific intent to kill to support his conviction for felony murder based on first-degree kidnapping. His actions showed his specific intent to unlawfully restrain or confine the victim over successive days, stating he was doing this in retribution for the victim’s alleged snitching. The defendant bound the victim’s hands behind his back, stopped the victim when he tried to run away, told the victim he would be freed if the victim killed his own mother, threatened to kill the victim by making him inject methamphetamine combined with poison, and arranged an attempted hanging of the victim.

(2) The Court of Appeals rejected the defendant’s argument that the trial court erred by failing to dismiss the charge of first-degree murder based on torture. The defendant argued that because the victim died from the gunshot delivered by defendant’s girlfriend, torture was not a proximate cause of his death. The Court of Appeals reasoned that the torture of the victim included defendant’s conduct over the days when the victim was detained, humiliated, beaten, and tortured. The torture included all of the abuse the defendant delivered during that time, including the defendant ordering his girlfriend, under threats to her and her families’ lives, to shoot and kill the victim.

The defendant’s wife, Mrs. Arnett, came home from work on November 21 and found the defendant drinking. They got in the defendant’s car and drove to grocery store, during which the defendant struck her, threatened her, and took her cellphone. Mrs. Arnett went inside the store and asked the manager to call law enforcement. The defendant was charged, and a court date was set for January 23.

On January 21, Mrs. Arnett again came home from work and found the defendant drinking. The defendant had ingested three beers prior to his wife arriving home and had consumed another after the couple returned from a trip to the grocery store. During dinner, the defendant drank another beer and started another. The defendant went to a neighbor’s house for marijuana and received eight Xanax bars instead, two of which he ingested. After returning home to finish his dinner, the defendant assaulted his wife, slamming her face into the wall, busting her eyes, and cutting her arms and chin. The defendant also kicked her legs, cut her head, stabbed her in the side, and repeatedly punched her in the face. Mrs. Arnett went to the hospital the next morning and remained hospitalized until January 24.

The defendant was indicted on charges of AWDWISI, and the defendant’s trial counsel filed a notice of voluntary intoxication defense, stating he would show that the defendant could not form the specific intent necessary for the crime charged. The trial court ruled AWDWISI was a general intent crime and that the defense of voluntary intoxication was not available to the defendant. At trial, the defendant’s attorney stated he would admit an element of the physical act of the assault, but not the defendant’s guilt because he lacked intent. The defendant told the court, on two separate occasions, that he understood his attorney would admit an element of the offense and that he had discussed the strategy with his attorney and agreed with the argument. The defendant was convicted of AWDWISI with two aggravating factors.

On appeal, the defendant argued that the trial court erred in ruling that the voluntary intoxication defense was not available. The Court of Appeals rejected this argument, reasoning that voluntary intoxication is a defense only to a crime that requires a showing of specific intent, and AWDWISI is not a specific intent crime.

The defendant next argued that the trial court’s Harbison inquiry was inadequate to confirm that he understood he was agreeing for counsel to admit the charged offense and present an invalid defense. The Court rejected this argument, noting that the defendant was present for two separate Harbison inquiries, the defendant was addressed personally by the trial court both times, the defendant confirmed he understood and consented to his counsel’s actions prior to any admission by his counsel, and the defendant heard the trial court’s ruling that voluntary intoxication would not be allowed as a defense to his general intent crime. The Court held that the Harbison inquiries as well as the conversations leading up to them were adequate to show that the defendant was thoroughly advised and knowingly consented to his attorney’s admission to the jury.

The defendant contended that he was denied effective assistance of counsel. The Court rejected this argument, reasoning that the defendant testified, was cross examined, and clearly consented to trial counsel’s acknowledgement of the defendant’s actions against his wife to the jury during closing argument. The Court concluded that the record showed a deliberate, knowing, and consented-to trial strategy in the face of overwhelming and uncontradicted evidence of the defendant’s guilt.

In this arson case, the evidence was not sufficient to entitle the defendant to a voluntary intoxication instruction. While the evidence showed that the defendant was intoxicated at the time in question, there was no evidence about how much alcohol she had consumed or about the length of time over which she had consumed it. The evidence showed only that the defendant had consumed some amount of some type of alcohol over some unknown period. The court also noted that the defendant’s conduct in committing the crime and behavior with law enforcement afterwards indicated some level of awareness of her situation.

Although the State presented evidence that the defendant smoked crack, there was no evidence regarding the crack cocaine’s effect on the defendant’s mental state and thus the trial court did not commit plain error in failing to instruct the jury on the defense of voluntary intoxication.

The trial court did not err by refusing to instruct on voluntary intoxication. Some evidence showed that the defendant had drunk two beers and "could feel it," had taken Xanax, and may have smoked crack cocaine. However, the defendant herself said she was not drunk and had not smoked crack. The defendant did not produce sufficient evidence to show that her mind was so completely intoxicated that she was utterly incapable of forming the necessary intent.

Because the defendant failed to present evidence of intoxication to the degree required to show that he was incapable of forming the requisite intent to commit attempted statutory rape and indecent liberties, the trial court did not commit plain error by failing to instruct the jury on voluntary intoxication. The State’s evidence showed that the defendant made careful plans to be alone with the child, and in at least one instance, tricked her into coming out of her room after she had locked herself away from him. The defendant offered evidence that he has abused alcohol and drugs for so long that his memory has deteriorated so that he cannot remember the relevant events. However, the court concluded, the defendant’s failure to remember later when accused is not proof of his mental condition at the time of the crime.

The trial court did not err by denying the defendant’s request to instruct the jury on the defense of withdrawal where the evidence showed that the defendant completed his assigned task in the home invasion (kicking in the door) and failed to renounce the common purpose or indicate that he did not intend to participate in the crime any further.

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