State v. Benner, ___ N.C. ___, 2022-NCSC-28 (Mar. 11, 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 State v. Benner, 276 N.C. App. 275, 2021-NCCOA-79 (unpublished).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.