North Carolina Lawyers Weekly
In some other case involving a black male defendant and a shooting with police officers, it could very well be proper to allow the defendant to question jurors generally about their opinions and/or biases regarding police officer shootings of (specifically) black men; however, in this case, defendant testified that he did not know until after he had fired shots and sped away that the gun-wielding man he shot at was a police officer. Therefore, defendant was not prejudiced by the trial court’s rulings, which prohibited defense counsel from questioning the jury venire about inherent bias.
We find no prejudicial error in defendant’s convictions of two counts of assault with a deadly weapon with the intent to kill (AWDWIK), two counts of possession of a firearm by a convicted felon, nine counts of armed robbery, 10 counts of second-degree kidnapping, and conspiracy to commit armed robbery.
Facts
Defendant and Jamel Lewis robbed an illegal gambling house at gunpoint. One of the victims did not deactivate his phone, and a friend used the robbers’ access to the phone to lure them to what they thought would be another poker game.
Once defendant and Lewis arrived at the destination for the fake poker game, the victim’s friend called the police. Defendant and Lewis engaged in a shootout with police, led police on a low-speed chase, and were eventually stopped when they ran over stop sticks.
Stand Your Ground
Defendant raised the statutory justifications of protection of his motor vehicle and self-defense pursuant to G.S. §§ 14-51.2, -51.3 as to the AWDWIK charge. The trial court found that defendant’s evidence did not show his belief that entry to his motor vehicle was imminent, and gave N.C.P.I.-Crim. 308.45 (“All assaults involving deadly force”) rather than N.C.P.I.-Crim. 308.80 (“defense of motor vehicle”), as requested by defendant.
The trial court instructed the jury pursuant to N.C.P.I.-Crim. 308.45 by incorporating the language of G.S. § 14-51.4(1), which indicates self-defense based on .1 and .2 is not available “to a person . . . who was attempting to commit, was committing, or was escaping after the commission of a felony.”
The trial court also instructed the jury that, if defendant was not the aggressor and was in his motor vehicle at a place where he had the lawful right to be, he was under no obligation to retreat and could stand his ground and repel force with force, regardless of the character of the assault being made upon him.
Defendant argues the disqualifying felony (which he was allegedly attempting to commit, committing, or escaping after committing) must have “directly and immediately produced the confrontation where the force was used.”
Section 14-51.4 plainly states that the defense of self-defense “is not available to a person who used defensive force and who: (1) Was attempting to commit, committing, or escaping after the commission of a felony.” The plain language of the statute makes clear that the disqualifying felony need not precipitate the circumstances giving rise to the perceived need to use force; there is no qualifying or limiting language in this provision modifying the word “felony.”
Accordingly, the absence of a plain and explicit causal nexus enunciated in § 14-51.4(1) makes manifest that the General Assembly omitted it purposefully and intended to limit the invocation of self-defense in this instance solely to the law-abiding. We decline to impose a causal nexus requirement and frustrate legislative intent.
Defendant also argues that the inclusion and identification of AWDWIK as a disqualifying felony is circular, triggering both the consideration and disqualification of his self-defense claim and thereby negating it. The state concedes – and we agree – that including the AWDWIK felony was a “circularity error,” but we conclude that it was not prejudicial error.
Defendant admitted to a disqualifying felony – possession of a firearm by a felon – in advance of the charge conference; therefore, he was not entitled to a self-defense instruction pursuant to § 14-51.4(1) in any event.
At worst, the contested instruction was harmless error and was not prejudicial to defendant.
First, the instructions plainly identified disqualifying felonies for which there was sufficient evidence – i.e., possession of a firearm by a felon (to which defendant had stipulated) and assault with a deadly weapon on a law enforcement officer. Second, the state did not argue that AWDWIK was a disqualifying felony, focusing on defendant’s felony possession of a firearm and stolen goods and assault on a law enforcement officer.
Accordingly, any error by the trial court in including the AWDWIK charge as a disqualifying felony was not prejudicial to defendant.
Voir Dire
The state argues that defendant cannot demonstrate prejudice from the trial court’s ruling on his line of questioning potential jurors because defendant did not exhaust his peremptory challenges. We disagree. Any peremptory challenge made by a defendant (or any party) is an empty gesture once a trial court has ruled that an entire line of (relevant) questioning will be categorically prohibited.
Defendant sought to question venire members about implicit bias and recent police shootings of black men. The trial court shut down that line of questioning. Defendant was categorically denied the opportunity to question prospective jurors, not only about a specific police officer shooting, but also even generally about their opinions and/or biases regarding police officer shootings of (specifically) black men in a case where defendant was a black male and police officers were involved in the shooting at issue.
Nevertheless, per defendant’s own testimony, it was not until the car chase ensued that he was even aware that the individuals he fired on were police officers.
In another case – not this one – but in another case involving a black male defendant involved in a shooting with police officers, a line of questioning akin to the one proposed by this defendant at trial regarding police officer shootings could very well be a proper – even necessary – subject of inquiry as part of the jury voir dire, and the trial court should seriously consider allowing counsel to pursue this type of questioning in order to allow both parties – the state and defendant — to intelligently exercise their peremptory challenges.
Indeed, we believe that as long as a defense attorney can tie these types of questions to an issue in the case, the court should permit the questioning. However, on the precise facts of this case, we find no prejudicial error.
State v. Crump (Lawyers Weekly No. 011-135-18, 24 pp.) (Wanda Bryant, J.) Appealed from Mecklenburg County Superior Court (Gregory Hayes, J.) Peter Regulski for the state; Ann Petersen for defendant. N.C. App.
