Where defendant presented evidence that (1) as he was walking to his apartment, he was confronted by a violent gang member whom he knew to always be armed; (2) the gang member threatened defendant, ignored defendant’s warning shots, and lunged at defendant while reaching behind his back towards his waistband; and (3) defendant shot the gang member, defendant was entitled to a jury instruction on self-defense that included the stand-your-ground provision.
We reverse the trial court’s judgment and remand for a new trial.
Earlier during the evening of defendant’s fatal showing of Dondre Nelson, defendant had an altercation with his girlfriend. Defendant fired three shots, one of which struck the door of an apartment in which Nelson’s daughter was staying.
Defendant left the Oak Knoll apartment complex, where he lived and Nelson sometimes stayed. He borrowed a gun from Jerome Smith and returned to Oak Knoll.
Defendant was fully aware of Nelson’s violent and dangerous propensities. According to defendant, Nelson had achieved his high-ranking membership in the Blood gang by killing a rival gang member. In addition, Nelson stated that he shot an individual who he believed had fired a shot into the Oak Knoll apartments. Furthermore, defendant observed Nelson robbing individuals in the apartments on multiple occasions and testified that, to his knowledge, Nelson always carried a gun with him.
According to defendant, when he returned to Oak Knoll, Nelson stood outside defendant’s apartment, waiting to confront defendant about allegedly shooting a gun towards Nelson’s daughter. Defendant also testified he had borrowed the gun from Smith for protection.
When Nelson noticed defendant walking towards his apartment, Nelson told defendant “this is war, empty your pocket”; continued to advance upon defendant after defendant fired two warning shots; and eventually lunged at defendant while reaching behind his back towards his waistband. By viewing the evidence in the light most favorable to defendant, a jury could conclude that defendant actually and reasonably believed that Nelson was about to shoot him and that it was necessary for defendant to use deadly force to protect himself.
The fact that defendant armed himself and did not affirmatively avoid the altercation does not make defendant the initial aggressor. Further, defendant’s earlier conduct towards his girlfriend does not make him an aggressor against Nelson.
It is true that, when law enforcement officers searched Nelson’s body, they did not find a gun. However, evidence presented at trial, when viewed in the light most favorable to defendant, suggested that Nelson may have been armed.
Law enforcement officers testified that neither Nelson’s wallet nor his cell phone was found on his person. Yet, Nelson had used his cell phone earlier that evening, and a receipt from Walmart was found in Nelson’s pocket. Witnesses also reported seeing an unidentified female fleeing the area that night with a gun.
From this evidence, a jury could reasonably infer that defendant reasonably believed Nelson was armed at the time of the altercation. Therefore, defendant was still entitled to protect himself if he reasonably believed Nelson was armed and intended to inflict death or serious bodily injury on defendant.
Although 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 from its actual instructions without prior notice to the parties and failed to give any part of the “stand-your-ground” instruction. This constitutes prejudicial error and warrants a new trial.
State v. Irabor (Lawyers Weekly No. 011-355-18, 11 pp.) (Ann Marie Calabria, J.) Appealed from Buncombe County Superior Court (Robert Sumner, J.) James Stanley for the state; Daniel Shatz for defendant. N.C. App.