¶1concurring in part, dissenting in part.
¶2I respectfully dissent from that part of the opinion which holds that the failure to instruct on the “no duty to retreat” doctrine violates *243the defendant’s constitutional rights. The majority cites State v. Marshall, 105 N.C. App. 518, 414 S.E.2d 95, disc. review denied, 332 N.C. 150, 419 S.E.2d 576 (1992), and State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994), to support its conclusion. However, I do not believe that those cases control here. In Camacho, the Supreme Court recently held that the failure to instruct on a lesser included offense of that charged in the bill of indictment and supported by the evidence violates due process. Id. at 234, 446 S.E.2d at 13. I would conclude that such a holding is not dispositive on the issue here, as a lesser included offense is a far cry from an instruction on “no duty to retreat.”
¶3In Marshall, this Court found error in the trial court’s failure to instruct on the defense of habitation. 105 N.C. App. at 524, 414 S.E.2d at 99. In their briefs in that case, neither the State nor the defendant suggested that the error was of constitutional significance. However, the Court, relying on cases from other jurisdictions, held that such error did rise to the level of constitutional error. Id. at 525, 414 S.E.2d at 99. Therefore, pursuant to N.C.G.S. § 15A-1443(b) (1988), the burden was on the State to prove that the error was harmless beyond a reasonable doubt. Id. My research likewise has revealed no cases from this State which have held such error to be constitutional error. I believe that the Court’s attempt to elevate the error in Marshallto constitutional error was dicta, was without authority, and need not be followed.
¶4Similarly, I have found no cases holding that the failure to instruct on the “no duty to retreat” doctrine is constitutional error. To the contrary, this Court in State v. Stevenson, 81 N.C. App. 409, 415, 344 S.E.2d 334, 337 (1986), holding that the failure to give the instruction was error, stated: “We believe that a different result could well have been reached had the requested instruction been given. See N.C. Gen. Stat. Sec. 15A-1443(a) (1983).” Thus, it is clear the Court, citing the nonconstitutional standard of subsection (a), did not consider the error to be of a constitutional nature. Likewise, in the case at hand, both the State and the defendant cite in their briefs the nonconstitu-tional standard found in section 15A-1443(a); neither party argues that the error is of a constitutional nature. To hold such error to be of a constitutional nature would be to elevate virtually every instructional error into a violation of due process, and would, therefore, shift the burden to the State to prove that the error was harmless beyond a reasonable doubt. I cannot agree with the majority’s holding on this point as I believe it significantly changes the law.