State v. Acker, ___ N.C. App. ___, 2022 NCCOA 211 (Apr. 5, 2022)

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.