State v. Leaks, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 3, 2020)

In this second-degree murder case, the trial court (1) did not abuse its discretion by denying the defendant’s motion for a jury view; (2) did not err with respect to a jury instruction on self-defense; and (3) correctly sentenced the defendant at prior-record level IV.

The trial court did not abuse its discretion by denying the defendant’s motion requesting a jury view of the crime scene, which the defendant argued was important to give the jury “an accurate view of what [the testifying eyewitnesses] would have been able to see and what kind of obstruction would have been in the line of sight that they would have, the area where this was occurring, as well as the distance involved[.]”. In reaching its reasoned decision to deny the motion, the trial court considered the availability of photographs, diagrams, and other material” and noted that the alleged crime occurred during daylight.

As to the instruction on self-defense, the defendant argued that the trial court erred in instructing the jury that the defendant “believed it was necessary to kill the victim in order to save the defendant from death or great bodily harm” and instead should have instructed that the defendant “believed it was necessary to use deadly force against the victim,” a modification contemplated by the pattern jury instruction on self-defense in murder cases in situations where the evidence shows that a defendant intended to use deadly force to disable but not to kill the victim (N.C.P.I. – Crim. 206.10 n.4).  The court recognized that this argument raised the unsettled issue of the extent to which the 2011 enactment of G.S. 14-51.2 and G.S. 14-51.3, creating statutory rights to self-defense, supplemented or superseded North Carolina common law concerning self-defense and defense of another.  Prior to the 2011 statutory enactments, the North Carolina Supreme Court in State v. Richardson, 341 N.C. 585, 592-94 (1995) held that “it is not necessary to change the self-defense instruction to read necessary ‘to shoot or use deadly force’ in order to properly instruct a jury on the elements of self-defense.”  The defendant argued that, notwithstanding Richardson, it was error to use the “to kill” language because G.S. 14-51.3 does not require a person to believe it is necessary to kill his or her assailant in order to save himself or herself from death or bodily harm and instead authorizes the use of deadly force if a person is “in any place he or she has the lawful right to be” and “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . . .”  Finding itself bound by Richardson, the court determined that the trial court did not err in its instruction to the jury on self-defense.

With regard to the trial court’s calculation of the defendant’s prior-record-level points for sentencing purposes, a calculation based upon certified copies from the Clerk of Superior Court of the defendant’s criminal records, the court found that the trial court did not err by adding one prior-record-level point for a misdemeanor assault with a deadly weapon conviction that resulted in a PJC and did not err in adding one prior-record-level point for misdemeanor breaking and entering and injury to real property offenses that were consolidated and to which the defendant pleaded guilty.  Even if the trial court erred in adding two prior-record-level points instead of one point by treating another breaking and entering conviction as a felony rather than as a misdemeanor, the assumed error was harmless because it did not change the defendant’s prior-record level.