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., 09/22/2021
E.g., 09/22/2021

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 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 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.

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. 

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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