NC Court of Appeals Confirms No Duty to Retreat Prior to Self-Defense

Posted by Sean Cecil | Jun 07, 2017 | 0 Comments

North Carolina law does not require retreat before use of self-defense. "Perfect" self-defense is a defense against criminal charges; "imperfect" may be used as a mitigating factor in sentencing. Perfect self-defense requires all four of the following elements:

(1) It appeared to defendant and he believed it to be necessary to use force to save himself from harm; 

(2) Defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness;

(3) Defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and

(4) Defendant did not use excessive force. 

Imperfect self-defense is available when elements 1 and 2 are met, but either the defendant was the aggressor or used excessive force. Self-defense is codified in North Carolina statute at N.C. Gen. Stat. section 14-51.3. Under the statute, a person does not have the duty to retreat in any place he or she has the lawful right to be. Also, under N.C. Gen. Stat. section 14-51.2, a person in their home, workplace, or motor vehicle is presumed to be in "reasonable fear of imminent death or serious bodily injury" (such that use of deadly force is warranted in self-defense) if both of the following apply: 

(1)   The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person's will from the home, motor vehicle, or workplace.

(2)   The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

The presumptions related to home, vehicles, and work are rebuttable, and do not apply in all cases.

Yesterday, in State v. Bass, the Court of Appeals ruled that a trial judge's refusal to instruct the jury regarding the absence of a duty to retreat is reversible error, and ordered a new trial for the Defendant. Mr. Bass was convicted after shooting  a man several times a couple weeks after that man had severely beaten him, breaking his jaw, among other injuries. At trial, the defendant testified that the man he shot had approached him aggressively and had a large knife, and he believed the man was going to beat him up again or worse. He testified that he shot the man because he was scared for his life. 

During the charging conference (where the lawyers and judge discuss jury instructions and the judge decides what instructions will be used) the trial judge ruled that the jury would not be instructed that the defendant had no duty to retreat prior to shooting, because the defendant was not in his home, workplace or vehicle. This failure (notably, over the defense lawyer's exception) was prejudicial to the defendant, ruled the Appellate Court, and the prejudice was exemplified by a jury question to the court regarding duty to retreat. The ruling described the trial court's instruction on duty to retreat were an "inaccurate and misleading statement of the statutes and case law" and that the Defendant had shown a "reasonable possibility that, had the error in question not been committed, a different result would have been reached" justifying a new trial on the charges. 

 Despite having already ruled that the Defendant was entitled to a new trial based upon jury instructions alone, the Court also agreed with him that the trial court's failure to allow the defense to present evidence of the "victim's" prior history of violence, and refusal to allow a defense continuance after the prosecution disclosed evidence of the violent history the night before trial, was reversible error. When a character trait is part of an essential element of claim or defense, proof of specific instances of conduct may be made. Evidence of a "victim's" history of violence may be relevant to establish that he was not in fact a victim but was the first aggressor. The Court found that the trial court's refusal to allow testimony regarding specific instances of the alleged victim's conduct was a  prejudicial denial of the Defendant's right to present a complete defense. The court ruled also that the defense should have been granted a continuance as requested, based upon the late disclosure of even more information relevant to the alleged victim's history of violence. 

 The Bass case underscores the crucial importance of jury instructions to the outcome of a jury trial. One of the first things I do when I determine that a case is likely to result in a trial is to have a look at the pattern jury instructions and research whether there might be additional law that can be used to craft non-pattern instructions. In the trial of Trayvon Martin's killer, I strongly believe that the not guilty verdict was a result of the trial court's failure to provide a "first aggressor" instruction. I haven't researched it in a while, but Florida did have a statute that nullifies self-defense for people who cause the situation requiring defensive use of force. Similarly, North Carolina law provides that self-defense justification is not available in two situations:

1. To someone attempting to commit, committing, or fleeing a felony. 

2.  Self-defense is also unavailable to someone who initially provokes the use of force against himself, provided, that he may if either the force used by the provoked is so serious that the person using defensive force reasonably believes he is in imminent danger of death or serious bodily harm, has no means to retreat, and the use of force was the only way to escape the danger OR the person who used defensive force withdraws in good faith from the person provoked and indicates clearly that he desires to withdraw and terminate the use of force, but the person provoked continued or resumed the use of force. 

Self-defense can be complicated. It certainly is fact-specific. Police are not necessarily obligated to consider it when making an arrest or charging decision. Someone who anticipates being or has been contacted by police for a situation involving use of force should consult an attorney as soon as possible! 

About the Author

Sean Cecil

Sean is an experienced advocate dedicated to justice for all people. He believes that individual human rights outweigh the freedom to make an easy dollar.


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