Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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

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

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E.g., 11/28/2022
E.g., 11/28/2022

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 State v. Benner, 276 N.C. App. 275, 2021-NCCOA-79 (unpublished).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.

 

State v. Juarez, 369 N.C. 351 (Dec. 21, 2016)

(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.

State v. Monroe, 367 N.C. 771 (Jan. 23, 2015)

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 (Oct. 8, 2010) 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).

State v. Moore, 363 N.C. 793 (Jan. 29, 2010)

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 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], ___ N.C. App. ___, 2022-NCCOA-263 (Apr. 19, 2022) temp. stay granted, ___ N.C. ___, 871 S.E.2d 538 (May 9 2022)

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 (May. 7, 2019) 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 (Apr. 17, 2018) 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. 

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.

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 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. 

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