Appeal by defendant from judgment entered 7 April 2005 byJudge Judson D. DeRamus, Jr. in Superior Court, Guilford
County. Heard in the Court of Appeals 17 May 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Diane A. Reeves, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Keischa M. Lovelace, for defendant-appellant.
McGEE, Judge.
Joe Louis Withers (defendant) was convicted of first
degree murder of Terrell Walker (Walker) in a judgment entered
7 April 2005. The trial court sentenced defendant to life
imprisonment without parole.
At trial, the State's evidence tended to show the
following. Ronald Hayes (Hayes) testified he was at
defendant's home with defendant, Timothy McCoy (McCoy), and
Rashay Latonya Saunders Lockett (Lockett) on 19 March 2004.
Defendant and McCoy left defendant's home and Hayes stayed
with Lockett. Hayes testified that after defendant and McCoy
left, Walker came to defendant's home, "pulled out some dope
and . . . put it on the end table, and . . . started counting
money." Hayes saw Walker sell drugs in defendant's home.
Hayes testified that when defendant and McCoy returned,
Walker started "foulmouthin[g]" two women who had arrived at
defendant's home with Andy Graham (Graham), and defendant told
Walker to leave. Walker did not leave but instead threatened
defendant by saying, "I'll kick your ass." Walker stood over
defendant in an attempt to scare defendant. Defendant went toget his rifle and Hayes and McCoy "[wrestled]" Walker out of
defendant's home. When Walker left, defendant put down his
rifle.
Walker then started kicking the front door from outside
and looking through the windows at the top of the door.
Defendant picked up his rifle and walked towards the door.
McCoy grabbed the rifle from defendant, and the rifle went off
inside the house, hitting the air conditioner. Hayes
testified that
[e]verybody ducked, and [defendant]
stepped out, he just stepped right outside
the door on the porch. That's when
[defendant] told [Walker], he said, "I
told you to leave, but you don't believe
I'll do nothin[g] to you," and that's when
I heard the first shot. I didn't count
the shots after that.
McCoy testified that when defendant asked Walker to leave
defendant's home, Walker "kept cussin[g], called [defendant]
an old bastard, you son-of-a-bitch, f--- you, you're a
wangster, I'm a gangster, and all of that s--- to
[defendant]." McCoy heard Walker tell defendant he was going
to "kick [defendant's] ass" and saw Walker tower over
defendant in an attempt to scare defendant.
McCoy testified that Graham escorted Walker out of
defendant's home, but Walker then kicked the door repeatedly
and looked through the windows at the top of the door.
Defendant got his rifle and McCoy stood in front of the door
and told defendant that he would not let defendant go outside.
Defendant's rifle misfired, hitting the air conditioner, andMcCoy got out of the way. McCoy testified:
Q. What happened after you got out of the
way?
A. [Defendant] opened the front door up,
opened the screen door, [Walker] was still
standing on the porch. And [defendant]
just stood there looking at [Walker].
[Defendant] ha[d] the barrel of the
[rifle] in his hand, like this.
[Defendant] didn't have his hand on the
trigger. He was talking to [Walker]. He
said, "Boy, you don't think I'll shoot
you?" [Walker] was still there talking s--
-, and I was like, "[Walker], shut up.
Just be quiet."
Then [Walker] walked out in the yard.
[Defendant] walked on the sidewalk.
[Walker] stood between [defendant's] car
and his car. [Walker] told [defendant],
"F--- you." [Defendant] said, "Boy, you
still don't think I'll fire your ass up,
do you?" And [Walker] said, "F--- you,"
and [defendant] fired [at] him."
McCoy testified that after defendant shot Walker the first
time, Walker said he was "going to get his s---," which McCoy
understood to mean Walker was going to get his gun. McCoy
testified that defendant shot Walker again.
Graham testified that defendant was in the doorway of
defendant's home when defendant fired the first shot at
Walker. Lockett, who was also at defendant's home on 19 March
2004, testified as follows:
Q. Okay. Do you recall telling Detective
Hosier that you heard [defendant] saying,
"Oh, you're reaching for your s---, go
ahead and reach for your s---"?
A. Yeah.
Q. Did you hear [defendant] say that?
A. Yeah, [defendant] said, "Oh, what
[are] you reaching for."
Defendant testified that Walker had tried to sell drugs
out of defendant's home three or four times prior to 19 March
2004. Each time, defendant had told Walker he could not sell
drugs out of defendant's home. Walker came to defendant's
home at approximately 8:00 or 8:30 p.m. on 19 March 2004 and
defendant told him to leave. Walker left defendant's home to
sell drugs next door.
Defendant left his house and later returned to find
Walker "sitting in the living room on the couch, with a bunch
of dope on [defendant's] table, cutting it up and bagging it
up." Defendant told Walker he could not sell drugs in
defendant's home and told Walker to leave, but Walker refused.
Defendant got his rifle while Hayes and McCoy removed Walker
from defendant's home. Once Walker was outside, defendant put
down his rifle. However, shortly thereafter, Walker began
kicking the door and looking through the window into
defendant's home. As he was kicking the door, defendant
testified Walker said: "Open the so-and-so door. I ain't
leavin[g] nowhere till I get my money back."
Defendant picked up his rifle, went to the door and told
McCoy that "the man's gonna tear my door down. I['ve] got to
do something." When defendant opened the door, Walker had
stepped off the porch and was standing next to his car, about
seven or eight feet away from defendant. Defendant again told
Walker to leave. Defendant testified: [Walker] started towards me, and [there
is] a pole there on the corner of the, uh,
the porch. [Walker] started towards me.
[There is] a bush there. [Walker's] car,
uh, the bushes [were] at the back of his
car, and there's a pole there to hold up
the porch. He started toward me, and he
reached up to that pole, and he slipped.
And when he slipped, I fired, [because] I
didn't know whether he was grabbing me.
I didn't know what was going on.
Q. Okay. Why did you shoot [Walker]?
A. [Because] I was scared that he was
fixin[g] to do something to me, fixin[g]
to kill me or whatever. I was afraid.
Defendant further testified that he shot Walker again when
Walker was stooping over his open trunk about four or five
feet away from defendant.
Q. Okay. Why did you shoot [Walker] the
second time?
A. Because when he [came] out [of] that
trunk, I didn't know what he was coming
out of that trunk with, [because] I knew
he had an AK-47.
Q. Okay. Did you see a gun in his hand
when he turned?
A. I saw something. I won't swear to it
that it was a gun. I saw something. It
was a quick flash, and that was it.
. . .
Q. . . . how long had you known [Walker]?
A. No more than six months.
Q. In the prior months, had you seen him
with an AK-47?
[THE STATE]: Objection.
A. Yes, sir, I did.
THE COURT: Overruled.
. . .
Q. Okay. But you did see him with an
assault- -
A. I [saw] him the same night I got [my
.22 automatic rifle].
Q. And this was how many weeks before
this incident?
A. A month or so before then.
Defendant testified he was sixty-eight years old, disabled,
five feet, eleven inches tall, and weighed 155 pounds. The
medical examiner testified that Walker was twenty-six years
old, six feet, six inches tall, and weighed 272 pounds.
At the jury instruction conference, defendant requested
an instruction on self-defense and the trial court stated that
it would instruct the jury on self-defense using N.C.P.I.--
Crim. 206.10. Defendant also requested an instruction on
defense of habitation in accordance with N.C.P.I.--Crim.
308.80. Defense counsel further stated:
Judge, I would ask the Court, on
Footnote 1, it talks about State versus
Blue, and specifically it says that the
defense of habitation can be applicable to
the porch of a dwelling under certain
circumstances, and somewhere I've got a
copy of that case with me. I believe they
said that was a call best left to the
jury.
. . .
And as far as where [defendant] was
standing, [defendant] testified he was
standing on the porch, but Andy Graham,
one of the State's witnesses, testified
that [defendant] was standing in
[defendant's] doorway when [defendant]
shot [Walker] those couple of times. So[defendant] was in the doorway. So I
basically would contend that in this case,
the porch could be considered a part of
the house.
The trial court agreed to give an instruction on defense of
habitation; however, the trial court stated it would modify
the instruction in accordance with State v. Blue, 356 N.C. 79,
565 S.E.2d 133 (2002). The portions of the jury instructions
given by the trial court which are necessary to a discussion
of the issues on appeal are set forth in the analysis.
I.
Defendant first contends he is entitled to a new trial
because the trial court erred by failing to instruct on not
guilty by reason of self-defense as a possible verdict in its
final mandate to the jury. We agree.
[1] The State contends defendant did not preserve this
argument for appellate review and, therefore, we must first
determine this issue. Defendant requested an instruction on
self-defense at the jury instruction conference. The trial
court stated it would instruct the jury on self-defense using
N.C.P.I.--Crim. 206.10. Pursuant to N.C.P.I.--Crim. 206.10
(2005), the following instruction should have been given in
the trial court's final mandate to the jury:
And finally, if the State has failed to
satisfy you beyond a reasonable doubt that
the defendant did not act in self-defense
then the defendant's action would be
justified by self-defense; therefore, you
would return a verdict of not guilty.
The State concedes the trial court did not instruct thejury in the final mandate that it would be its duty to return
a verdict of not guilty if they found that defendant acted in
self-defense. In
State v. Ross, 322 N.C. 261, 265, 367 S.E.2d
889, 891 (1988), our Supreme Court recognized that
a request for an instruction at the charge
conference is sufficient compliance with
[Rule 10(b)(2) of the North Carolina Rules
of Appellate Procedure] to warrant our
full review on appeal where the requested
instruction is subsequently promised but
not given, notwithstanding any failure to
bring the error to the trial judge's
attention at the end of the instructions.
As in
Ross, defendant's request for the self-defense
instruction, and the trial court's assurance that it would
instruct the jury in accordance with N.C.P.I.--Crim. 206.10,
preserved this argument for appellate review.
See Ross, 322
N.C. at 265, 367 S.E.2d at 891.
[2] Our Supreme Court held in
State v. Dooley, 285 N.C.
158, 203 S.E.2d 815 (1974), that the trial court's failure to
include an instruction on self-defense in its final mandate to
the jury was reversible error that entitled the defendant to
a new trial.
Id. at 166, 203 S.E.2d at 820;
see also State v.
Ledford, 171 N.C. App. 144, 613 S.E.2d 726 (2005);
State v.
Williams, 154 N.C. App. 496, 571 S.E.2d 886 (2002);
State v.
Kelly, 56 N.C. App. 442, 289 S.E.2d 120 (1982). Our
Supreme
Court further held in
Dooley that "[b]y failing to so charge,
the jury could have assumed that a verdict of not guilty by
reason of self-defense was not a permissible verdict in the
case."
Dooley, 285 N.C. at 166, 203 S.E.2d at 820. Relying upon
State v. Goodson, 341 N.C. 619, 461 S.E.2d
740 (1995), the State argues defendant was not prejudiced by
the trial court's failure to include an instruction on self-
defense in the final mandate because the instruction as a
whole was adequate. In
Goodson, the defendant was convicted
of first degree murder and argued the trial court erred by
making only a passing reference to a verdict of not guilty by
reason of accident in its final mandate to the jury.
Id. at
623-25, 461 S.E.2d at 742-43. However, our Supreme Court
recognized that the trial court correctly charged the jury on
accident immediately before giving the final mandate.
Id. at
625, 461 S.E.2d at 743. Moreover, the trial court did
instruct the jury in the final mandate that "if the jury
believed the death of the victim was caused by an accident, it
would find the defendant not guilty."
Id. at 625, 461 S.E.2d
at 744. Accordingly, our Supreme Court held the trial court
did not err.
Id.
In the present case, unlike in
Goodson, the trial court
failed in the final mandate to instruct the jury that if it
found defendant had acted in self-defense, it should find
defendant not guilty. Therefore, as in
Dooley, "the jury
could have assumed that a verdict of not guilty by reason of
self-defense was not a permissible verdict in the case."
See
Dooley, 285 N.C. at 166, 203 S.E.2d at 820. We thus hold that
the trial court's failure to specifically instruct the jury as
to a verdict of not guilty by reason of self-defense in thefinal mandate was reversible error, and we remand for a new
trial.
See Id. We address defendant's remaining assignments
of error because the issues are likely to recur upon retrial.
II.
[3] Defendant argues the trial court committed plain
error by failing to instruct the jury, as part of its
instruction on self-defense, that defendant (1) did not have
a duty to retreat, (2) had the right to stand his ground, and
(3) had the right to repel force with force and to increase
the amount of force used. In
State v. Blue, 356 N.C. 79, 565
S.E.2d 133 (2002),
our Supreme Court recognized that
"[o]rdinarily, when a person who is free
from fault in bringing on a difficulty []
is attacked in his own home or on his own
premises, the law imposes on him no duty
to retreat before he can justify his
fighting in self defense, regardless of
the character of the assault, but is
entitled to stand his ground, to repel
force with force, and to increase his
force, so as not only to resist, but also
to overcome the assault and secure himself
from all harm."
Id. at 86, 565 S.E.2d at 138 (quoting
State v. Johnson, 261
N.C. 727, 729-30, 136 S.E.2d 84, 86 (1964)). The Court also
held: "Further, defense of the person within one's premises
includes not only the dwelling, but also the curtilage and
buildings within the curtilage."
Id. "When determining
whether the evidence is sufficient to entitle a defendant to
jury instructions on a defense or mitigating factor, courts
must consider the evidence in the light most favorable to
[the] defendant."
State v. Mash, 323 N.C. 339, 348, 372S.E.2d 532, 537 (1988). "If an instruction is required, it
must be comprehensive."
State v. Brown, 117 N.C. App. 239,
241, 450 S.E.2d 538, 540 (1994),
cert. denied, 339 N.C. 616,
454 S.E.2d 259, 340 N.C. 115, 456 S.E.2d 320 (1995).
A defendant must object to the jury charge before the
jury retires to consider its verdict in order to preserve for
appeal an issue regarding jury instructions. N.C.R. App. P.
10(b)(2). Defendant did not object to the self-defense
instruction given by the trial court, and our review is
therefore limited to plain error. Our Supreme Court has
stated that
[p]lain error includes error that is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements
that justice cannot have been done; or
grave error that amounts to a denial of a
fundamental right of the accused; or error
that has resulted in a miscarriage of
justice or in the denial to [the]
appellant of a fair trial.
State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996)
(citing
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983)). "[I]n order to prevail under the plain error rule,
[a] defendant must convince this Court that (1) there was
error and (2) without this error, the jury would probably have
reached a different verdict."
State v. Najewicz, 112 N.C.
App. 280, 294, 436 S.E.2d 132, 141 (1993),
disc. review
denied, 335 N.C. 563, 441 S.E.2d 130 (1994).
The trial court in this case instructed the jury on the
elements of self-defense. The trial court then instructed thejury as follows:
The defendant, members of the jury,
would not be guilty of any murder or
manslaughter if he, . . . defendant, acted
in self-defense as I have just defined
that to be, and if he was not the
aggressor in bringing on the fight, and
did not use excessive force under the
circumstances. If the defendant
voluntarily and without provocation
entered the fight, he would be considered
the aggressor, unless he thereafter
attempted to abandon the fight and gave
notice to the deceased that he was doing
so. One enters a fight voluntarily if he
uses toward his opponent - uses language
which, considering all the circumstances,
is calculated and intended to bring on a
fight. A defendant uses excessive force
if he uses more force than reasonably
appeared to him to be necessary at the
time of the killing. It is for you, the
jury, to determine the reasonableness of
the force used by . . . defendant under
all the circumstances as they appeared to
him at the time.
The defendant is not entitled to the
benefit of self-defense if he was the
aggressor, with the intent to kill or
inflict serious bodily harm upon the
deceased. Therefore, in order for you to
find . . . defendant guilty of murder in
the first or second degree, the State must
prove beyond a reasonable doubt, among
other things, that . . . defendant was the
aggressor with the intent to kill or
inflict serious bodily harm upon the
deceased. If the State fails to prove
either that . . . defendant did not act in
self-defense or was the aggressor, with
the intent to kill or inflict serious
bodily harm, you may not convict
. . . defendant of either first or second
degree murder, but you may convict
. . . defendant of voluntary manslaughter
if the State proves that . . . defendant
was simply the aggressor, without
murderous intent, in bringing on the fight
in which the deceased was killed, or that
. . . defendant used excessive force.
Defendant argues there was competent evidence in the
record tending to show that defendant was not the aggressor.
Defendant testified that he returned home on 19 March 2004 and
found Walker inside defendant's home selling drugs. Defendant
told Walker to stop selling drugs and to leave, but Walker
refused. Defendant testified that he got his rifle and Walker
left the house. Walker then kicked the door to defendant's
home, looked through the windows, and said: "Open the so-and-
so door. I ain't leavin[g] nowhere till I get my money back."
Defendant testified that he picked up his rifle, went to the
door, and told McCoy that "the man's gonna tear my door down.
I['ve] got to do something."
When defendant opened the door, Walker had stepped off
the porch and was standing next to his car, about seven or
eight feet away from defendant. Defendant again told Walker
to leave, but Walker came towards defendant, reached for a
pole on the porch, and slipped. Defendant testified he shot
Walker because he was "scared that [Walker] was fixin[g] to do
something to me, fixin[g] to kill me or whatever." Defendant
shot Walker again when Walker was stooping over his open trunk
about four or five feet away from defendant. Defendant said
he shot Walker a second time because he thought Walker might
be taking his AK-47 out of the trunk of his car. Defendant
testified that he knew that Walker owned an AK-47 and that
defendant had seen Walker with the AK-47 about one month prior
to 19 March 2004. Hayes and McCoy testified that Walker threatened
defendant in defendant's home by saying, "I'll kick your ass."
Hayes and McCoy further testified that Walker verbally
provoked, and attempted to scare, defendant. McCoy testified
that after defendant shot Walker the first time, Walker said
he was "going to get his s---," which McCoy understood to mean
that Walker was going to get his gun. Lockett testified that
defendant said to Walker, "Oh, you're reaching for your s---,
go ahead and reach for your s---." Furthermore, there was
testimony regarding the significant age, height and weight
disparity between defendant and Walker.
Under these circumstances, the jury could have found that
defendant was not the aggressor and was attacked in his home
or on his premises. Therefore, the trial court erred by
failing to instruct the jury that if it found defendant was
not the aggressor, defendant did not have a duty to retreat,
but could stand his ground, repel force with force, and
increase the amount of force used.
We must also determine whether the instructional error
amounted to plain error. We hold that it did. In
State v.
Davis, 177 N.C. App. 98, 627 S.E.2d 474 (2006), the defendant
was convicted of second degree murder and discharging a
firearm into occupied property.
Id. at 98, 627 S.E.2d at 475.
The State's evidence at trial showed that the defendant fired
a gun at the car in which the victim was a passenger only
after another passenger in the car shot at the defendant.
Id.at 103, 627 S.E.2d at 478. The defendant argued the trial
court committed plain error by failing to instruct the jury
that the defendant had no duty to retreat.
Id. at 102-03, 627
S.E.2d at 477. Our Court agreed, holding as follows: "Without
an instruction that [the] defendant had the right to stand his
ground when met with deadly force, the jury may have believed
that [the] defendant acted with malice, requiring it to return
a verdict of guilty of second degree murder."
Id. at 103, 627
S.E.2d at 478. The trial court's failure to give the
instruction was plain error entitling the defendant to a new
trial.
Id. at 103, 627 S.E.2d at 478.
Likewise, in the present case, the trial court committed
plain error by failing to instruct the jury that if it found
defendant was not the aggressor, defendant did not have a duty
to retreat, but could stand his ground, repel force with
force, and increase the amount of force used. Because the
trial court failed to so instruct, "the jury may have believed
that defendant acted with malice," requiring it to find
defendant guilty of first degree murder.
See Davis, 177 N.C.
App. at 103, 627 S.E.2d at 478. Therefore, for the reasons
stated above and for the reasons stated in section I. of this
opinion, defendant is entitled to a new trial.
III.
[4] Defendant argues the instruction given by the trial
court on the defense of habitation was plainly erroneous.
Specifically, defendant contends the trial court committedplain error by: (1) failing to instruct the jury that an
occupant within a home has a right to prevent a forcible entry
into the home where the occupant reasonably believes the
intruder intends to commit a felony in the home; and (2)
"improperly narrow[ing] the jury's focus to activities on the
porch, rather than the totality of the events that occurred at
[defendant's] home." Because defendant failed to object to
the defense of habitation instruction given by the trial
court, our review is limited to plain error.
N.C. Gen. Stat. § 14-51.1(a) (2005), which sets forth the
statutory defense of habitation, provides:
A lawful occupant within a home or other
place of residence is justified in using
any degree of force that the occupant
reasonably believes is necessary,
including deadly force, against an
intruder to prevent a forcible entry into
the home or residence or to terminate the
intruder's unlawful entry (i) if the
occupant reasonably apprehends that the
intruder may kill or inflict serious
bodily harm to the occupant or others in
the home or residence, or (ii) if the
occupant reasonably believes that the
intruder intends to commit a felony in the
home or residence.
Pattern jury instruction N.C.P.I.--Crim. 308.80 (2005),
regarding when a person is justified in using deadly force in
defense of his home, states that deadly force is justified
when
(1) such force was being used to [prevent
a forcible entry] [terminate the
intruder's unlawful entry] into the
defendant's [home] [place of residence];
and
(2) the defendant reasonably believed that
the intruder [may kill or inflict serious
bodily harm to the defendant or others in
the [home] [place of residence];] [intends
to commit a felony in the [home] [place of
residence];]
and
(3) the defendant reasonably believed that
the degree of force he used was necessary
to [prevent a forcible entry] [terminate
the intruder's unlawful entry] into his
[home] [place of residence].
The trial court did not instruct the jury that defendant
would have been justified in using deadly force against Walker
if defendant reasonably believed that Walker intended to
commit a felony in defendant's home. Defendant argues there
was competent evidence in the record tending to show that
defendant believed Walker intended to commit a felony, being
the sale of drugs, in defendant's home. Defendant testified
that prior to 19 March 2004, Walker had tried to sell drugs
out of defendant's home on three or four occasions, and
defendant had told Walker he could not do this. Defendant
said Walker came to defendant's home at approximately 8:00 or
8:30 p.m. on 19 March 2004 and defendant told him to leave.
Walker left defendant's home to sell drugs next door.
Defendant left his home and returned later in the evening to
find Walker "sitting in the living room on the couch, with a
bunch of dope on [defendant's] table, cutting it up and
bagging it up." Hayes also testified that he saw Walker
selling drugs in defendant's home on 19 March 2004.
Defendant told Walker he could not sell drugs in
defendant's home and told him to leave, but Walker refused. After others convinced Walker to leave, Walker began kicking
the door of defendant's home and looking through the windows
from the outside. Defendant testified Walker said: "Open the
so-and-so door. I ain't leavin[g] nowhere till I get my money
back."
Viewed in the light most favorable to defendant, Walker's
statement, along with the evidence that Walker sold drugs in
defendant's home that evening, tend to show that Walker wanted
to reenter defendant's home to get drug money. We conclude
this was competent evidence that defendant had a reasonable
belief that Walker intended to enter defendant's home to
commit a felony, the sale of drugs. Therefore, the trial
court erred by failing to instruct the jury that an occupant
of a home may use deadly force to prevent a forcible entry
into the home if the occupant reasonably believes the intruder
intends to commit a felony in the home.
See N.C.G.S. § 14-
51.1(a); N.C.P.I.--Crim. 308.80.
However, although the trial court erred, defendant has
failed to "convince this Court that . . . without this error,
the jury would probably have reached a different verdict."
See Najewicz, 112 N.C. App. at 294, 436 S.E.2d at 141.
Therefore, we hold that the error did not amount to plain
error. Nevertheless, the trial court should not commit this
same instructional error at defendant's new trial.
See State
v. Delsanto, 172 N.C. App. 42, 53, 615 S.E.2d 870, 877 (2005)
(holding that although the erroneous admission of thechallenged evidence in that case did not have an impact on the
jury's finding of guilt, "the admission of the testimony for
the purpose of showing [the] defendant's propensity to commit
the crime was in error and should not be presented at [the]
defendant's new trial for this same purpose.").
Secondly, although the trial court did instruct the jury
that under the defense of habitation, a porch may be
considered a part of the home under certain circumstances,
defendant argues the trial court committed plain error by
"improperly narrow[ing] the jury's focus to activities on the
porch, rather than the totality of the events that occurred at
the home."
Defendant requested that the trial court consider
State
v. Blue, 356 N.C. 79, 565 S.E.2d 133 (2002), in charging the
jury on defense of habitation. In
Blue, the defendant was
charged with second degree murder.
Blue, 356 N.C. at 79, 565
S.E.2d at 134. The undisputed evidence presented at trial
showed that the defendant and the victim had struggled on the
front porch of the defendant's residence.
Id. at 81, 565
S.E.2d at 135. It was also undisputed that the victim died of
a stab wound and that the knife belonged to the defendant.
Id. However, there was a dispute as to who struck the first
blow and as to where the two were standing at the time.
Id.
The defendant testified that he was inside the screen door to
his residence when the victim opened the door, reached inside
and hit him.
Id. A witness for the State testified that thedefendant was opening the screen door to his residence when
the victim hit him from behind.
Id. Another witness for the
State testified that the defendant struck the first blow on
the porch of the defendant's residence, while a third witness
testified the defendant was on the porch steps when the
defendant struck the first blow.
Id.
The trial court instructed the jury on defense of
habitation pursuant to N.C.G.S. § 14-51.1.
Id. During its
deliberations, the jury sent a question to the trial court,
which read: "Is the front porch considered to be a part of the
home or inside of the home?"
Id. at 83, 565 S.E.2d at 136.
The trial court instructed the jury that a front porch is a
part of the home, but a front porch is not inside the home.
Id. The jury found the defendant guilty of voluntary
manslaughter, and after appeal by the defendant, our Court
found no error.
Id. at 79, 565 S.E.2d at 134.
On appeal to the Supreme Court, the defendant argued that
the Court of Appeals erred in holding that
the trial court did not commit prejudicial
error in failing to instruct the jury, in
response to its question, that [the]
defendant had the same rights pertaining
to self-defense and defense of habitation
on his front porch as he did within his
home since the porch is part of the
curtilage from which [the] defendant had
no duty to retreat.
Id. at 84, 565 S.E.2d at 137. The Supreme Court held that the
defense of habitation was applicable to the porch of a
dwelling under certain circumstances.
Id. at 89, 565 S.E.2d
at 139. The Court further held that "whether a porch, deck,garage, or other appurtenance attached to a dwelling is within
the home or residence for purposes of N.C.G.S. § 14-51.1 is a
question of fact best left for the jury's determination based
on the evidence presented at trial."
Id. at 89, 565 S.E.2d at
140. The Supreme Court reversed the decision of our Court and
remanded the case for a new trial.
Id. at 90, 565 S.E.2d at
140.
Pursuant to defendant's request in the present case, the
trial court instructed the jury in accordance with
Blue. The
trial court did not foreclose the possibility that the jury
could find that defendant acted to prevent Walker from
entering defendant's home. Rather, the trial court instructed
that the porch could also be a part of the home if the jury so
found. Because there was conflicting evidence as to whether
defendant was inside his doorway or on his porch at the time
of the shooting, this jury instruction was appropriate. The
trial court therefore did not "improperly narrow[] the jury's
focus to activities on the porch[.]"
IV.
[5] Defendant argues the trial court committed plain
error by failing to instruct the jury that defendant had the
right to evict trespassers from his property. We disagree.
In
State v. McCombs, 297 N.C. 151, 253 S.E.2d 906 (1979), our
Supreme Court recognized that
when a trespasser invades the premises of
another, the latter has the right to
remove him, and the law requires that he
should first request him to leave, and ifhe does not do so, he should lay his hands
gently upon him, and if he resists, he may
use sufficient force to remove him, taking
care, however, to use no more force than
is necessary to accomplish that object.
Id. at 157, 253 S.E.2d at 911. "However, a person may not use
deadly force or force likely to cause great bodily harm
against a trespasser already in his home."
State v. Clegg,
142 N.C. App. 35, 47, 542 S.E.2d 269, 277,
disc. review
denied, 353 N.C. 453, 548 S.E.2d 529 (2001). In the present
case, whether or not Walker was in defendant's home,
defendant, pursuant to
Clegg, was not permitted to use deadly
force in removing Walker from defendant's property.
See Id.
Therefore, the trial court did not err by failing to instruct
the jury on the right to evict trespassers.
See Id. Because
we conclude the trial court did not err, "a 'plain error'
analysis is inappropriate."
See State v. Torain, 316 N.C.
111, 116, 340 S.E.2d 465, 468,
cert. denied,
Torain v. North
Carolina, 479 U.S. 836, 93 L. Ed. 2d 77 (1986).
V.
[6] Defendant next argues the trial court erred by
denying defendant's motion to require the State to disclose
the identity of the confidential informant. In his motion,
defendant alleged,
inter alia, that "[t]he informant provided
statements allegedly made by . . . [d]efendant in regards to
the shooting after the shooting occurred." Defendant further
alleged that "[t]he informant also stated that he knew
[Walker] carried a .25 caliber pistol sometimes." In
State v. Newkirk, 73 N.C. App. 83, 85, 325 S.E.2d 518,
520,
disc. review denied, 313 N.C. 608, 332 S.E.2d 81 (1985),
our Court recognized:
It is well established that the state is
privileged to withhold from a defendant
the identity of a confidential informant,
with certain exceptions. The test
applied, when disclosure of an informant's
identity is requested, is set forth in
Roviaro v. United States, 353 U.S. 53
(1957).
In
Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639
(1957), the United States Supreme Court held that "[w]here the
disclosure of an informer's identity, or of the contents of
his communication, is relevant and helpful to the defense of
an accused, or is essential to a fair determination of a
cause, the privilege must give way."
Id. at 60-61, 1 L. Ed.
2d at 645. The Supreme Court further held that courts must
balance the right of an individual to prepare a defense with
the public interest in safeguarding the flow of information,
"taking into consideration the crime charged, the possible
defenses, the possible significance of the informer's
testimony, and other relevant factors."
Id. at 62, 1 L. Ed.
2d at 646.
Two factors weighing in favor of
disclosure are (1) the informer was an
actual participant in the crime compared
to a mere informant, and (2) the state's
evidence and defendant's evidence
contradict on material facts that the
informant could clarify[.] Several
factors vitiating against disclosure are
whether the defendant admits culpability,
offers no defense on the merits, or the
evidence independent of the informer'stestimony establishes the accused's guilt.
Newkirk, 73 N.C. App. at 86, 325 S.E.2d at 520-21 (citations
omitted).
In
State v. Jackson, 103 N.C. App. 239, 405 S.E.2d 354
(1991),
aff'd per curiam, 331 N.C. 113, 413 S.E.2d 798 (1992),
the defendant argued the trial court erred by denying his
motion to compel the State to disclose the identity of a
confidential informant.
Id. at 241, 405 S.E.2d at 356. Our
Court held there were several factors favoring nondisclosure:
[The] [d]efendant offered no defense on
the merits, so there was no contradiction
between his evidence and the state's
evidence for the informant's testimony to
clarify. No testimony by the informant
was admitted at trial, rather the
testimony of three law enforcement
officers established [the] defendant's
guilt. In addition, the state asserted
disclosure of the informant's identity
would jeopardize pending investigations.
Id. at 242, 405 S.E.2d at 356. Our Court held the factors
favoring nondisclosure outweighed those in favor of disclosure
and held the trial court did not err by denying the
defendant's motion.
Id.
In the present case, several factors weigh in favor of
nondisclosure. Despite defendant's contention in his brief
that the informant was an actual participant in the shooting,
defendant did not argue this before the trial court.
Defendant stated in his motion to the trial court that "[t]he
informant provided statements allegedly made by
. . . [d]efendant in regards to the shooting after theshooting occurred." At the hearing on defendant's motion, the
State argued: "The information from this source was all
information not gleaned from being on the scene as an
eyewitness, but as hearsay of what . . . defendant had told
him after this case had happened, while it was being
investigated." Defendant did not argue the informant was an
actual participant in the shooting. Moreover, no testimony of
the informant was offered at trial. In addition, the State
argued "that revealing the source of this information would
put that person, if not in danger, would certainly have a
chilling effect on other people trying to give information to
the police."
In his motion, defendant stated "[t]he informant . . .
knew . . . [Walker] carried a .25 caliber pistol sometimes."
Defendant argues this was relevant to his claim of self-
defense. However, although defendant offered the defense of
self-defense, and there was a conflict as to whether Walker
had a gun on the night of the shooting, defendant was able to
offer evidence similar to that provided by the informant.
Defendant testified that Walker carried an AK-47 and that
defendant might have seen Walker reaching for the AK-47 before
defendant shot Walker a second time. McCoy testified that
after defendant shot Walker the first time, Walker said he was
"going to get his s---," which McCoy understood to mean
Walker was going to get his gun. Lockett also testified that
defendant said to Walker: "Oh, you're reaching for your s---,go ahead and reach for your s---[,]" which indicated that
defendant believed Walker had a gun. For the reasons stated
above, we conclude the factors favoring nondisclosure outweigh
those favoring disclosure. We hold the trial court did not
err by denying defendant's motion and we overrule this
assignment of error.
New trial.
Judge ELMORE concurs.
Judge STEELMAN concurs in the result with a separate
opinion.
STEELMAN, Judge, concurring in the result.
I fully concur with the analysis of the first portion of
the majority opinion which requires that this case be remanded
for a new trial based upon the instructional error.
As to part II of the opinion, assuming error on the part
of the trial court, it did not rise to the level that would
constitute “plain error.”
I would further note the danger of this court attempting
to advise the trial court on issues that are likely to recur
upon re-trial. At the re-trial of this case, the trial court
must make its rulings and jury instructions based upon the
evidence presented at the new trial, not that presented at the
first trial. Taylor v. Abernethy, 174 N.C. App. 93, 105, 620
S.E.2d 242, 251 (2005).
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