Even though defendant wasn’t trying to kill the driver who was purportedly trying to force defendant off the road, since defendant intended to “strike the blow” and shoot the driver’s tire, a self-defense instruction was available for the offenses of discharging a firearm into an occupied and operating vehicle and misdemeanor injury to personal property.
Defendant is entitled to a new trial.
Defendant was also entitled to have included in the self-defense instruction the no-duty-to-retreat language from our stand your ground law. Viewed in the light most favorable to defendant, the evidence shows he was driving at night in wet conditions with a potential for ice, along a meandering two-lane public highway with few street lights. According to defendant, Timothy Parker’s pickup truck came up behind him and persistently tailgated defendant’s vehicle with bright lights, while other traffic was traveling in front of him. Parker had an opportunity to pass defendant, instead Parker pulled up alongside him. Defendant slowed down, Parker also slowed and “paced” him, rather than passing, and veered closer towards defendant’s vehicle.
Defendant’s vehicle’s passenger-side tires were both off the paved portion of the road on the muddy shoulder. Defendant said he was afraid he would lose control, his vehicle would flip upside down, and he would be paralyzed.
Whether defendant’s use of force under these circumstances was reasonable or excessive is clearly a question of fact to be determined by the jury upon proper instructions.
Defendant was present in a location he lawfully had a right to be: driving inside his vehicle upon a public highway. Defendant was under no legal obligation to stop, pull off the road, veer from his lane of travel, or to engage his brakes and risk endangering himself. G.S. § 14-51.3(a).
Without the jury being instructed that defendant had no duty to retreat from a place where he lawfully had a right to be, the jury could have determined, as the prosecutor argued in closing, that defendant was under a legal obligation to cower and retreat. This notion would have required defendant to have (1) further slowed down while being “paced,” (2) pulled off the road, or (3) ceased maintaining his lawful course of travel to avoid Parker’s use of his truck as a deadly weapon to force him off the road, in order to avoid criminal liability.
Viewed in the light most favorable to defendant, there is a reasonable possibility that, had the trial court given the required stand-your-ground instruction to the jury, a different result would have been reached at trial.
State v. Ayers (Lawyers Weekly No. 011-272-18, 14 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Mary Carla Babb for the state; Sean Vitrano for defendant. N.C. App.