State v. Barefoot (Lawyers Weekly No. 15-16-1033, 12 pp.) (Lucy Inman, J.) Appealed from Henderson County Superior Court (C. Phillip Ginn, J.) N.C. App. Unpub.
Holding: All the evidence suggests that the victim had a legal right to be at the flea market where defendant had a stall and that the victim was often at the market as both a seller and customer. Therefore, the trial court was not required to give a jury instruction on defense of habitation because there is no evidence that the victim had “unlawfully and forcibly” entered the flea market, a required showing for a defendant to be entitled to the defense of habitation instruction.
We find no error in defendant’s conviction of first-degree murder.
The trial court misspoke when it instructed the jury that it should only consider involuntary manslaughter it if found beyond a reasonable doubt that defendant was not guilty of first-degree murder, second-degree murder, or voluntary manslaughter. However, the trial court properly instructed the jury that the state has the burden of proof when it instructed on each individual crime, including involuntary manslaughter, and again when it summed up each charge. Viewing the instructions contextually and in their entirety, while there was an error in the single jury instruction, it is not likely that this error misled the jury given the numerous other times that the trial court correctly instructed on the burden of proof.