IN THE SUPREME COURT OF NORTH CAROLINA
No. 335PA16
Filed 6 April 2018
STATE OF NORTH CAROLINA
v.
GYRELL SHAVONTA LEE
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 789 S.E.2d 679 (2016), finding no error
after appeal from a judgment entered on 12 July 2015 by Judge J. Carlton Cole in
Superior Court, Pasquotank County. Heard in the Supreme Court on 6 November
2017.
Joshua H. Stein, Attorney General, by Amy Kunstling Irene, Special Deputy
Attorney General, for the State.
Glenn Gerding, Appellate Defender, by Paul M. Green, Assistant Appellate
Defender, for defendant-appellant.
Williams Mullen, by Camden R. Webb; and Ilya Shapiro, pro hac vice, for Cato
Institute, amicus curiae.
NEWBY, Justice.
This case is about whether the trial court erroneously instructed the jury when
it omitted the relevant stand-your-ground provision from its instructions on self-
defense, and, if so, whether such error was preserved. By omitting the relevant stand-
your-ground provision, the trial court’s jury instructions were an inaccurate and
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Opinion of the Court
misleading statement of the law. Such error is preserved when the trial court
deviates from an agreed-upon pattern instruction. Defendant has shown a
reasonable possibility that, had the trial court given the required stand-your-ground
instruction, a different result would have been reached at trial. Accordingly, we
reverse the decision of the Court of Appeals. Defendant is entitled to a new trial with
proper self-defense and stand-your-ground instructions.
On 31 December 2012, defendant celebrated New Year’s Eve at a neighbor’s
home in Elizabeth City. Shortly after midnight, defendant left his neighbor’s home
on foot and encountered several people convened around a car, including Quinton
Epps (Epps) and defendant’s cousin, Jamieal Walker (Walker). Epps and Walker
were engaged in a heated argument. Epps ultimately left in the car, and defendant
went inside his home. About twenty minutes later, another car approached
defendant’s home. Defendant and Walker were standing “beside the house and in the
front yard.” Defendant saw Epps exit the car’s back passenger side. Walker and
Epps began arguing, and Epps became verbally abusive and aggressive. Epps got
back into the car and left the scene. Soon thereafter, another car drove alongside
defendant’s backyard, stopping briefly. Defendant retrieved his pistol and concealed
it on his person, “[out of] instinct,” though defendant believed “[Epps] wasn’t a threat
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Opinion of the Court
at th[at] time.” The car ultimately parked three houses down from defendant’s
residence. Epps and several others exited the car.
Defendant and Walker walked down the street to talk to Epps. Epps and
Walker again argued in the street and sidewalk area as defendant watched from a
short distance. Defendant saw that Epps had a gun behind his back. The argument
escalated, and Walker punched Epps in the face. Epps grabbed Walker’s hoodie, shot
him twice in the stomach, and continued shooting as Walker turned to flee. Walker
was later found dead nearby.
After Epps fired his last shot at Walker, Epps turned and pointed his gun at
defendant. Before Epps could fire, defendant fatally shot Epps. Defendant stated
that it happened quickly, lasting approximately four seconds, and added that he
would have shot Epps to protect Walker but could not get a clear shot because Epps
and Walker were too close together during the struggle. Defendant was ultimately
indicted for first-degree murder.
At trial defendant asserted that he fired the fatal shot in self-defense,
maintaining that he shot Epps only after Epps turned the gun on him and denying
that he continued to shoot after Epps fell to the ground. Defendant introduced
evidence supporting his version of events, including, inter alia, an eyewitness, his
police interview, and taped telephone calls from the jail. The State argued defendant
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Opinion of the Court
did not shoot in self-defense and introduced, inter alia, a witness who testified that
while Epps was “on the ground,” defendant “came out of nowhere” and “[ran] up and
[kept] shooting [Epps].” During closing arguments, the State contended that
defendant should have retreated because a reasonable person in defendant’s shoes
would have “removed himself from the situation” and “run[ ] away.”
At the trial court’s request, the parties agreed to the delivery of N.C.P.I.–Crim.
206.10, the pattern jury instruction on first-degree murder and self-defense. This
instruction provides, in relevant part: “Furthermore, the defendant has no duty to
retreat in a place where the defendant has a lawful right to be.” N.C.P.I.–Crim.
206.10 (June 2014). In addition, N.C.P.I.–Crim. 308.10, which is incorporated by
reference in footnote 7 of N.C.P.I.–Crim. 206.10 and is entitled “Self-Defense,
Retreat,” states that “[i]f the defendant was not the aggressor and the defendant was
. . . [at a place the defendant had a lawful right to be], the defendant could stand the
defendant’s ground and repel force with force.” Id. 308.10 (June 2012) (brackets in
original).
Though the trial court agreed to instruct the jury on self-defense according to
N.C.P.I.–Crim. 206.10, it ultimately omitted the “no duty to retreat” language of
N.C.P.I.–Crim. 206.10 from its actual instructions without prior notice to the parties
and did not give any part of the “stand-your-ground” instruction. Defense counsel did
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Opinion of the Court
not object to the instruction as given. Though the jury reported that it was
deadlocked, it ultimately convicted defendant of second-degree murder, following
approximately nine hours of deliberation. Defendant appealed.
At the Court of Appeals, defendant argued that the trial court’s “omission of a
jury instruction that a person confronted with deadly force has no duty to retreat but
can stand his ground” was error, preserved by the trial court’s deviation from the
agreed-upon pattern instruction, see State v. Withers, 179 N.C. App. 249, 255,
633
S.E.2d 863, 867 (2006), or plain error, regardless, see State v. Wilson,
197 N.C. App.
154, 164-65,
676 S.E.2d 512, 518-19, disc. rev. denied,
363 N.C. 589,
684 S.E.2d 158
(2009). The Court of Appeals affirmed defendant’s conviction, reasoning that the law
limits a defendant’s right to stand his ground to “any place he or she has the lawful
right to be,” State v. Lee, ___ N.C. App. ___, ___,
789 S.E.2d 679, 685 (2016) (emphasis
omitted) (quoting N.C.G.S. § 14-51.3(a) (2015)), which did not include the public
street where the incident occurred. We allowed defendant’s petition for discretionary
review.
Defendant contends the trial court erroneously omitted the relevant stand-
your-ground provision and that such error is preserved by the trial court’s deviation
from the pattern instruction. We conclude that, by omitting the relevant stand-your-
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Opinion of the Court
ground provision from the agreed-upon instructions on self-defense, the trial court’s
jury instructions constituted preserved error.
“The jury charge is one of the most critical parts of a criminal trial.” State v.
Walston, 367 N.C. 721, 730,
766 S.E.2d 312, 318 (2014). “[W]here competent evidence
of self-defense is presented at trial, the defendant is entitled to an instruction on this
defense, as it is a substantial and essential feature of the case . . . .” State v. Morgan,
315 N.C. 626, 643,
340 S.E.2d 84, 95 (1986) (citations and emphasis omitted); see
State v. Guss,
254 N.C. 349, 351,
118 S.E.2d 906, 907 (1961) (per curiam) (“The jury
must not only consider the case in accordance with the State’s theory but also in
accordance with defendant’s explanation.”).
Our statutes provide two circumstances in which individuals are justified in
using deadly force, thus excusing them from criminal culpability. Section 14-51.3 of
North Carolina’s General Statutes, entitled “Use of force in defense of person; relief
from criminal or civil liability,” provides:
(a) A person is justified in using force, except
deadly force, against another when and to the extent that
the person reasonably believes that the conduct is
necessary to defend himself or herself or another against
the other’s imminent use of unlawful force. However, a
person is justified in the use of deadly force and does not
have a duty to retreat in any place he or she has the lawful
right to be if either of the following applies:
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Opinion of the Court
(1) He or she reasonably believes that such
force is necessary to prevent imminent
death or great bodily harm to himself
or herself or another.
....
(b) A person who uses force as permitted by this
section is justified in using such force and is immune from
civil or criminal liability for the use of such force . . . .
N.C.G.S. § 14-51.3 (2017) (emphases added).
Section 14-51.2, entitled “Home, workplace, and motor vehicle protection;
presumption of fear of death or serious bodily harm,” provides that “[a] lawful
occupant within his . . . home, motor vehicle, or workplace does not have a duty to
retreat from an intruder,” id. § 14-51.2(f) (2017), and “is presumed to have held a
reasonable fear of imminent death or serious bodily harm to himself . . . or another
when using defensive force” in the case of “an unlawful and forcible entry,” id. § 14-
51.2(b) (2017). The relevant distinction between the two statutes is that a rebuttable
presumption arises that the lawful occupant of a home, motor vehicle, or workplace
reasonably fears imminent death or serious bodily harm when using deadly force at
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Opinion of the Court
those locations under the circumstances in N.C.G.S. § 14-51.2(b). This presumption
does not arise in N.C.G.S. § 14-51.3(a)(1).1
Under either statutory provision, a person does not have a duty to retreat, but
may stand his ground.2 Accordingly, when, as here, the defendant presents
competent evidence of self-defense at trial, the trial court must instruct the jury on a
defendant’s right to stand his ground, as that instruction informs the determination
of whether the defendant’s actions were reasonable under the circumstances, a
critical component of self-defense. See State v. Blevins, 138 N.C. 668, 670-71,
50 S.E.
763, 764 (1905) (“[The] necessity, real or apparent, [is] to be determined by the jury”
and the defendant “can have that necessity determined in view of the fact that he has
1 Contrary to the opinion below, the phrase “any place he or she has the lawful right
to be” is not limited to one’s home, motor vehicle, or workplace, but includes any place the
citizenry has a general right to be under the circumstances. See, e.g., Guss, 254 N.C. at 351,
118 S.E.2d at 907; see also Research Div., N.C. Gen. Assembly, Summaries of Substantive
Ratified Legislation 2011, at 48 (Dec. 2011) (“A person, wherever located, has no duty to
retreat, and may use what force is necessary . . . .” (emphasis added)).
2 In 2011 the General Assembly amended the law of self-defense in North Carolina,
Act of June 17, 2011, ch. 268, sec. 1, 2011 N.C. Sess. Laws 1002, 1002-04, to clarify that one
who is not the initial aggressor may stand his ground, regardless of whether he is in or
outside the home. Compare State v. Godwin,
211 N.C. 419, 422,
190 S.E. 761, 763 (1937)
(“When an attack is made with a murderous intent, the person attacked . . . may stand his
ground and kill his adversary, if need be.”), with State v. Pennell,
231 N.C. 651, 654,
58 S.E.2d
341, 342 (1950) (“[W]hen a person . . . is attacked in his own dwelling, or home, or place of
business . . . the law imposes upon him no duty to retreat before he can justify his fighting in
self-defense . . . .”).
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Opinion of the Court
a right to stand his ground . . . .”); N.C.P.I.–Crim. 206.10 (A successful self-defense
claim requires, inter alia, a showing that “the defendant believed it was necessary to
kill the victim . . . to save [himself] from death or great bodily harm.”).
Though the trial court here agreed to instruct the jury on self-defense under
N.C.P.I.–Crim. 206.10, it omitted the “no duty to retreat” language of N.C.P.I.–Crim.
206.10 without notice to the parties and did not give any part of N.C.P.I.–Crim.
308.10, the “stand-your-ground” instruction. While defendant offered ample evidence
at trial that he acted in self-defense while standing in a public street where he had a
right to be when he shot Epps, the trial court did not instruct the jury that defendant
could stand his ground. The State nonetheless contends that defendant did not object
to the instruction as given, thereby failing to preserve the error below and rendering
his appeal subject to plain error review only.
When a trial court agrees to give a requested pattern instruction, an erroneous
deviation from that instruction is preserved for appellate review without further
request or objection.
[A] request for an instruction at the charge conference is
sufficient compliance with the rule to warrant our full
review on appeal where the requested instruction is
subsequently promised but not given, notwithstanding any
failure to bring the error to the trial judge’s attention at the
end of the instructions.
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Opinion of the Court
State v. Ross, 322 N.C. 261, 265,
367 S.E.2d 889, 891 (1988). Because the trial court
here agreed to instruct the jury in accordance with N.C.P.I.–Crim. 206.10, its
omission of the required stand-your-ground provision substantively deviated from the
agreed-upon pattern jury instruction, thus preserving this issue for appellate review
under N.C.G.S. § 15A-1443(a).
Moreover, the record reflects a reasonable possibility that, had the trial court
given the required stand-your-ground instruction, a different result would have been
reached at trial. See State v. Ramos, 363 N.C. 352, 355-56,
678 S.E.2d 224, 227 (2009)
(applying “reasonable possibility” of “different result” standard to determine whether
erroneous instruction was prejudicial). During closing argument the State contended
that defendant’s failure to retreat was culpable. As such, the omission of the stand-
your-ground instruction permitted the jury to consider defendant’s failure to retreat
as evidence that his use of force was unnecessary, excessive, or unreasonable. See
State v. Smith,
360 N.C. 341, 346,
626 S.E.2d 258, 261 (2006) (The purpose of a jury
instruction “is to give a clear instruction which applies the law to the evidence” and
thus “assist the jury in understanding the case and in reaching a correct verdict.”
(quoting State v. Williams,
280 N.C. 132, 136,
184 S.E.2d 875, 877 (1971))).
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Opinion of the Court
Accordingly, defendant is entitled to a new trial with proper instructions on self-
defense.3
In sum, we conclude that by omitting the stand-your-ground provision from the
agreed-upon instructions on self-defense, the trial court’s jury instructions
constituted preserved error. Defendant has shown a reasonable possibility that, had
the trial court included the stand-your-ground provision in its instructions, a
different result would have been reached at trial. Accordingly, we reverse the
decision of the Court of Appeals and remand this case to that court with instructions
to vacate defendant’s conviction and further remand this case to the trial court for a
new trial with proper instructions on self-defense and stand-your-ground.
REVERSED AND REMANDED; NEW TRIAL.
Chief Justice MARTIN concurring.
This case is about what a man did in the few seconds after he saw his cousin
get shot. We now have to consider that man’s response to this violent event in light
Because we resolve defendant’s appeal on this issue, we do not address his remaining
3
arguments.
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MARTIN, C.J., concurring
of the doctrines of self-defense and defense of another under our stand-your-ground
statutes.
I agree with the majority’s ruling that the trial court erred by not instructing
the jury on defendant’s ability to lawfully stand his ground in self-defense. I therefore
fully join in the majority opinion. I write separately to note that defendant has also
argued that the trial court should have instructed the jury on defense of another, and
to observe that the trial court’s omission of an instruction on that defense also
constituted error.
“[A] judge has an obligation to fully instruct the jury on all substantial and
essential features of the case . . . arising on the evidence.” State v. Harris, 306 N.C.
724, 727,
295 S.E.2d 391, 393 (1982). This obligation arises “[r]egardless of requests
by the parties,”
id., and a trial court commits error if it fails to meet this obligation,
see State v. Todd,
264 N.C. 524, 531,
142 S.E.2d 154, 159 (1965). Our Court has
applied this standard specifically to jury instructions on both self-defense and defense
of another. See id.; State v. Montague,
298 N.C. 752, 755,
259 S.E.2d 899, 902 (1979).
Articulating a principle that should apply equally to defense of another, this Court
has stated that, “[w]here there is evidence that [a] defendant acted in self-defense,
the court must charge on this aspect even though there is contradictory evidence by
the State or discrepancies in [the] defendant’s evidence.” State v. Dooley,
285 N.C.
158, 163,
203 S.E.2d 815, 818 (1974); see also State v. Mash,
323 N.C. 339, 348,
372
S.E.2d 532, 537 (1988) (citing State v. McCray,
312 N.C. 519, 529,
324 S.E.2d 606,
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MARTIN, C.J., concurring
614 (1985)) (“When determining whether the evidence is sufficient to entitle a
defendant to jury instructions on a defense . . . , courts must consider the evidence in
the light most favorable to [the] defendant.”).
Under our State’s common law, one could “kill in defense of another if one
believe[d] it to be necessary to prevent death or great bodily harm to the other ‘and
ha[d] a reasonable ground for such belief.’ ” State v. Perry, 338 N.C. 457, 466,
450
S.E.2d 471, 476 (1994) (quoting State v. Terry,
337 N.C. 615, 623,
447 S.E.2d 720, 724
(1994)). The reasonableness of the defender’s belief was “to be judged by the jury in
light of the facts and circumstances as they appeared to the defender at the time of
the killing.”
Id. (quoting Terry,
337 N.C. at 623,
447 S.E.2d at 724).
Two additional common law rules limited the scope of this doctrine. This Court
stated the first rule in State v. Gaddy: “[T]he right to defend another [could] be no
greater than the latter’s right to defend himself.” See State v. Gaddy, 166 N.C. 341,
346-47,
81 S.E. 608, 610 (1914). Under the second rule, which appeared in State v.
McAvoy and other cases, the initial aggressor in a conflict could not claim perfect self-
defense. See, e.g., State v. McAvoy,
331 N.C. 583, 595-96,
417 S.E.2d 489, 497 (1992)
(citing State v. Norris,
303 N.C. 526, 530,
279 S.E.2d 570, 572-73 (1981)). An
aggressor who started a fight without murderous intent, however, would still have
been entitled to claim imperfect self-defense.
Id. at 596,
417 S.E.2d at 497 (citing
Norris,
303 N.C. at 530,
279 S.E.2d at 573). As a result, under the common law rules
in Gaddy and McAvoy, a defendant who intervened to defend someone who had
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MARTIN, C.J., concurring
started a fight without murderous intent would have been entitled to a jury
instruction only on imperfect defense of another. If a defendant established imperfect
defense of another, a jury could not have acquitted him but could have convicted him
of voluntary manslaughter instead of murder. See id. (citing Norris,
303 N.C. at 530,
279 S.E.2d at 573).
In 2011, however, the General Assembly enacted N.C.G.S. §§ 14-51.3 and
14-51.4, which at least partially abrogated—and may have completely replaced—our
State’s common law concerning self-defense and defense of another.
Subsection 14-51.3(a) states that a person’s use of non-deadly force is justified
“when and to the extent that the person reasonably believes that the conduct is
necessary to defend himself or herself or another against [someone else’s] imminent
use of unlawful force.” N.C.G.S. § 14-51.3(a) (2017). That subsection then establishes
that a person is justified in using deadly force when that person is in a place that “he
or she has the lawful right to be,” id., and “reasonably believes that such force is
necessary to prevent imminent death or great bodily harm to himself or herself or
another,” id. § 14-51.3(a)(1).
N.C.G.S. § 14-51.4 provides exceptions to the justifications for defensive force
set forth in subsection 14-51.3(a), stating that “[t]he justification[s] described in . . .
[section] 14-51.3 [are] not available to a person who used defensive force” in certain
enumerated circumstances. Id. § 14-51.4 (2017). Subsection 14-51.4(2) then gives
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MARTIN, C.J., concurring
one of these circumstances; it states that a person’s use of defensive force is not
justified when that person “[i]nitially provoke[d] the use of force against himself or
herself.” Id. § 14-51.4(2). This subsection does not create an exception to section
14-51.3, however, when a defendee—the person that a defendant acts to protect—
provokes a fight with non-deadly force and a defendant then intervenes to protect
that defendee from deadly force. In other words, when a defendant uses deadly force
to protect an initial aggressor who used non-deadly force against an attacker who
responds with deadly force, that defendant’s actions are still fully justified under
subsections 14-51.3(a)(1) and 14-51.4(2).
This statutory framework thus appears to contradict the common law rules in
Gaddy and McAvoy when those rules are applied together, because it does not reduce
a defendant’s justification to imperfect defense of another in this context. That
defendant can rightly claim perfect defense of another. Nor does the only other
exception in section 14-51.4 reduce a defendant’s justification for the use of deadly
force stated in subsection 14-51.3(a)(1) from perfect to imperfect defense of another;
that exception states only that a person is not justified in using defensive force under
section 14-51.3 if the person “[w]as attempting to commit, committing, or escaping
after the commission of a felony.” Id. § 14-51.4(1). So, under this statutory
framework, a defendant who uses deadly force to protect an initial aggressor who
used non-deadly force against an attacker who responds with deadly force should be
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MARTIN, C.J., concurring
entitled to perfect self-defense, as long as that defendant was not attempting to
commit or committing a felony, or escaping after committing a felony, in the process.
It is important to note the statutory limits of the justification defense in
subsection 14-51.3(a). At first glance, one might think that a defendant could defend
another against deadly force even when that other had initially provoked a fight with
deadly force. But that is not so. Because the second sentence of subsection 14-51.3(a),
in context, describes a heightened variant of the justification discussed by the first
sentence—a justification sufficient to cover deadly as well as non-deadly force—the
requirement from the first sentence that the hostile force being opposed be “unlawful”
should be imputed to the second sentence. Thus, no justification is available for using
deadly force to defend another against lawful force. If a defendee provokes a fight
with deadly force, then the use of deadly force by the opposing combatant would be
lawful. It follows that a defendant would not be justified under subsection
14-51.3(a)(1) in using deadly force himself against that opposing combatant to protect
the defendee, as the defendant in that scenario would not be defending another
against unlawful force. The justification for deadly force set forth in subsection
14-51.3(a)(1) is inherently limited in this way. Cf. State v. Holloman, 369 N.C. 615,
628-29,
799 S.E.2d 824, 833 (2017) (concluding that, when an initial aggressor
provokes a fight using deadly force and the opposing combatant responds with deadly
force, that aggressor is not justified in using deadly force in response under N.C.G.S.
§ 14-51.4(2)(a)).
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MARTIN, C.J., concurring
Turning to the case at hand, defendant was entitled to a jury instruction on
perfect defense of another. Based on the evidence at trial, a jury could reasonably
conclude the following: Defendant saw his cousin, Jamieal Walker, being repeatedly
shot by Quinton Epps, after Walker had punched Epps in the face. Walker began to
run away, with Epps still shooting at him, and then Epps immediately turned his gun
toward defendant. At that point, defendant shot Epps “to get him to drop his
weapon.” The fact that Epps momentarily turned his gun away from Walker did not
mean that Walker was instantly removed from mortal danger. Both Charles Bowser,
an eyewitness, and defendant himself testified that the entire sequence of Epps’
turning his gun away from Walker and toward defendant and defendant’s shooting
of Epps took, at most, “four seconds.” While the Court of Appeals leaned heavily on
the fact that Walker was already fatally wounded before defendant shot Epps, State
v. Lee, ___ N.C. App. ___, ___, 789 S.E.2d 679, 689 (2016), defendant could not have
known at that moment whether Walker’s injuries were fatal or what chance Walker
had of survival. Also, as the majority notes, defendant stated that he would have
shot Epps sooner if Epps and Walker had not been so close together during their fight.
I accept all of these facts as true for the purpose of deciding this issue.
Given these facts, Epps used deadly force against Walker after Walker had
merely thrown a punch. That punch did not justify a reasonable belief on Epps’ part
that shooting Walker was necessary to prevent Epps from suffering death or great
bodily harm, so Epps himself did not act in lawful self-defense under subsection
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MARTIN, C.J., concurring
14-51.3(a)(1) when he shot Walker. This means that Epps’ use of deadly force was
unlawful, and defendant therefore could have defended Walker from it with deadly
force. Defendant was in a public street, where he had a lawful right to be, and,
because Epps had already shot Walker multiple times, defendant could have
reasonably believed that his own use of deadly force was necessary to save Walker
from death or further serious bodily injury. This satisfies the standard for the use of
deadly force in defense of another under subsection 14-51.3(a)(1). Thus, the trial
court erred by omitting a jury instruction on defense of another.
In sum, the trial court did not instruct the jury on perfect defense of another,
even though defense of another under N.C.G.S § 14-51.3(a)(1) was a “substantial and
essential feature[ ] . . . arising on the evidence” in this case. See Harris, 306 N.C. at
727,
295 S.E.2d at 393. The trial court erred by not instructing the jury on this
defense. Defendant concedes that this issue was not properly preserved below, so this
Court should review the issue only for plain error. I do not need to address whether
the omission of this instruction rose to the level of plain error, however, as defendant
will receive a new trial under the majority’s ruling regardless. If the same or
substantially similar evidence is presented at a future trial of defendant, the trial
court should instruct the jury on the law concerning perfect defense of another. The
jury should not be precluded from considering any reasonable explanation of
defendant’s actions right after he saw his cousin get shot.
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