Criminal Practice – Self-Defense – Stand Your Ground – Jury Instructions – Apartment Complex – Evidence – Victim’s Violence – Motion to Continue – Constitutional

State v. Bass (Lawyers Weekly No. 011-171-17, 44 pp.) (John Tyson, J.) (Wanda Bryant, J., dissenting) Appealed from Wake County Superior Court (Paul Ridgeway, J.) N.C. App.

Holding: Even though defendant was not in his home, vehicle or workplace when the victim approached him, since defendant was in a place he had a right to be – on the lawn of his apartment complex – he was entitled to a jury instruction that he had no duty to retreat.

We reverse defendant’s conviction of assault with a deadly weapon inflicting serious injury and award defendant a new trial.

Background

In June 2014, the victim, Jerome Fogg, viciously beat defendant, breaking his jaw in three places. Defendant testified that he started carrying a gun out of fear of further injury or death by Fogg.

Two weeks after the beating, Fogg, who had a 10-inch machete-like knife in a sheath on his hip, approached defendant at defendant’s apartment complex. According to defendant, Fogg reached for his knife, and defendant shot Fogg because he was “scared for [his] life.”

Defendant was indicted for attempted murder and assault with a deadly weapon with intent to kill inflicting serious injury. The trial court rejected defendant’s request for a jury instruction that he had no duty to retreat.

Jury Instruction

G.S. § 14-51.2 creates a rebuttable presumption that the lawful occupant of a home, motor vehicle, or workplace holds a reasonable fear of imminent death or serious bodily harm to himself or another when using defensive force at those locations under the circumstances set forth in § 14-51.2(b).

G.S. § 14-51.3 creates no such presumption, yet it provides in part that 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 … (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.”

Despite ample evidence that defendant acted in self-defense when he shot Fogg, the trial court declined defendant’s request that it instruct the jury that defendant had no duty to retreat. It appears the trial court was under the erroneous impression that the “no duty to retreat” language only applies when the defendant acts in and asserts self-defense while in his home, workplace or motor vehicle pursuant to § 14-51.2(b).

During deliberations, the jury sent a note to the court, asking for “further explanation on NC law with regard to ‘duty to retreat.’” The trial court instructed the jury that “a person has no duty to retreat in one’s home, one’s own premises, one’s place of residence, one’s workplace, or one’s motor vehicle. This law does not apply in this case.”

This instruction was clearly contrary to law. It may have required the jury to conclude that defendant would have had a duty to retreat under the circumstances to avoid criminal liability.

The record on appeal also contains an unsigned letter written by a juror to the trial judge during deliberations, expressing his or her concern that defendant would not receive a fair verdict. The juror explained that other jurors were discussing the “stand your ground laws” in other states “as examples of reasons we should think one way or another.” Statements were made in the jury room that “they are all thugs … so we will HAVE to convict on something,” and “we don’t have to agree but will need to compromise on a guilty verdict of some kind.” This letter serves to further demonstrate the erroneous jury instruction prejudiced defendant.

Defendant has shown a reasonable possibility that, had the error in question not been committed, a different result would have been reached.

State v. Lee, 789 S.E.2d 679 (2016), disc. review allowed, 797 S.E.2d 301 (2017), is distinguishable in that, among other things, it involved a plain error review.

Evidence

Under N.C. R. Evid. 405(b), defendant was entitled to present evidence of specific acts of Fogg’s violent conduct to show that Fogg, not defendant, was the aggressor at the time of the assault. This right applies whether Fogg’s specific instances of conduct were known or unknown to defendant at the time of the assault.

The trial court erred when it limited three witnesses’ testimonies so as to exclude specific instances of Fogg’s explosive, unprovoked, and irrational violence, even with strangers. The exclusion of this evidence was prejudicial under G.S. § 15A-1443(a) and denied defendant his constitutional right to present a complete defense. The state has not shown the error was harmless beyond a reasonable doubt.

Furthermore, the trial court erred when it denied defendant’s motion to continue after the prosecutor – on the evening prior to trial – provided defense counsel with other reports of Fogg’s assaultive behavior. The trial court’s failure to allow counsel any time to investigate after the state’s last-minute disclosures further violated defendant’s rights to effective assistance of counsel and to present a complete defense.

New trial.

Dissent

(Bryant, J.) I see no way to distinguish the facts in this case from those in Lee; therefore, I disagree with the majority’s reasoning that Lee “is not precedent here,” whether or not we agree with Lee‘s legal soundness. Although this court reviewed the defendant’s arguments for plain error in Lee, its analysis of whether a no-duty-to-retreat instruction was required controls our analysis in this case.

Furthermore, where the trial court allowed the jury to hear evidence of Fogg’s reputation for aggressiveness and violence from three separate witnesses, I can discern no abuse of discretion in the trial court’s ruling that the witnesses could not also testify about specific instances of Fogg’s violent conduct.

These three witnesses allowed defendant to properly present his claim of self-defense; therefore, the trial court’s denial of defendant’s motion to continue did not deprive him of his constitutional right to present a defense. Moreover, defense counsel did not neglect to move for a continuance; that the motion was denied is not indicative that counsel’s performance was deficient.

I would find no error.