State v. Irabor, ___ N.C. App. ___, 822 S.E.2d 421 (Nov. 20, 2018)

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.