State v. Copley, ___ N.C. App. ___, 2021-NCCOA-68 (Mar. 16, 2021)

On remand from the North Carolina Supreme Court’s decision (summary here) that there was no prejudicial error in the prosecutor’s closing argument with respect to race in this murder trial, the Court of Appeals considered the defendant’s remaining arguments regarding jury argument and jury instructions.  Largely based on its view that the prosecutor’s jury argument was made in the context of self-defense rather than, as the defendant maintained, the habitation defense, the court disagreed with the defendant’s argument that the trial court erred by failing to intervene to correct an alleged incorrect statement of law regarding the aggressor doctrine in the prosecutor’s closing argument to which the defendant did not object.  The court went on to decline to reach the defendant’s argument that the trial court plainly erred with respect to jury instructions on the aggressor doctrine in the context of the defense of habitation, finding the argument waived by the defendant’s active participation in the formulation of the jury instructions during the charge conference and failure to object at trial.  Finally, the court held that the trial court did not err by instructing the jury on murder by lying in wait because the instruction was supported by sufficient evidence even if it was assumed that the defendant offered evidence of a conflicting theory of defense of habitation.  The court noted with respect to lying in wait that the State’s evidence showed that the defendant concealed himself in his darkened garage with a suppressed shotgun and fired through a garage window, bewildering unwarned bystanders.

Judge Tyson dissented, expressing the view that the trial court erred with respect to instructing the jury on murder by lying in wait given that the defendant was wholly inside his home with his family as an armed intruder approached the home and given shortcomings in the trial court’s instructions regarding the State’s burden of disproving the defendant’s assertion of self-defense and the jury’s responsibility to evaluate evidence and inferences on that issue in the light most favorable to the defendant.