State v. Coburn, ___ N.C. App. ___, 834 S.E.2d 691 (Nov. 5, 2019)

The defendant was convicted by a jury of assault with a deadly weapon inflicting serious injury based on an altercation involving the owner of the house at which he had been living. On appeal, the defendant argued that the trial court erred by not instructing the jury on defense of habitation. Though that defense had been discussed throughout the trial—from a pretrial motion to the charge conference, and during a lunchtime recess in chambers—the defendant never requested an instruction on defense of habitation under G.S. 14-52.2. (1) On appeal, the defendant argued that the judge erred by failing to instruct the jury on defense of habitation despite his failure to request it, and that the issue was preserved because, in light of the in-chambers discussion on possible jury instructions, the charge conference was not recorded in its entirety as required by G.S. 15A-1231. The court of appeals noted that the better practice is to record the entire charge conference, but it ultimately rejected the defendant’s argument that a failure to do so entitled the defendant to raise any issue related to the instructions on appeal, even those not requested or objected to. Under G.S. 15A-1231(b), failures to comply with the statute do not constitute grounds for appeal unless the defendant is “materially prejudiced.” Here, where the trial court specifically stated its intention to get everything “firmly on the record” after the recess discussion and twice mentioned the possibility of giving the defense of habitation instruction, and where the defendant neither requested the instruction nor objected to the court’s failure to give it, the defendant was not materially prejudiced by the failure to record the entire charge conference. (2) The court of appeals concluded that plain error review was waived because the defendant invited any error through his failure to request the instruction or object to its omission after it had been discussed so extensively.

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