State v. BassÂ
2017 N.C. App. LEXIS 440
| N.C. Ct. App. | 2017Background
- Defendant Justin Bass was beaten by Jerome Fogg on June 23, 2014, sustaining a broken jaw and thereafter carried a 9mm firearm out of fear. A cell-phone video of that beating was played to the jury.
- On July 3, 2014, Fogg (armed with a large knife) approached Bass at the Bay Tree Apartments; Bass pulled a gun, shot Fogg multiple times, and fled; Fogg survived after extensive surgery.
- Bass was indicted for attempted murder and assault with a deadly weapon with intent to kill; jury acquitted him of attempted murder and intent-to-kill assault but convicted him of assault with a deadly weapon inflicting serious injury; sentence 30–48 months.
- At trial Bass claimed statutory self-defense (no duty to retreat) and sought to admit testimony about Fogg’s specific prior violent acts to show Fogg was the aggressor; the court limited such evidence to reputation/opinion and refused a requested no-duty-to-retreat instruction.
- During deliberations the jury asked about “duty to retreat” and the trial court told them the statutory no-duty-to-retreat rule applies only in home/place contexts and “does not apply in this case.” A juror later sent an unsigned letter describing coercive/biasing deliberations.
- The Court of Appeals held the trial court erred prejudicially in (1) failing and later misinstructing the jury about the statutory no-duty-to-retreat rule and (2) excluding testimony about Fogg’s specific violent acts and denying a continuance to investigate those incidents; ordered a new trial.
Issues
| Issue | State's Argument | Bass's Argument | Held |
|---|---|---|---|
| Whether jury should have been instructed Bass had no duty to retreat under N.C.G.S. §14-51.3 | Instruction as given was sufficient; omission harmless or controlled by precedent | Bass entitled to "no duty to retreat" instruction because he was in a place he had a lawful right to be and reasonably feared imminent great bodily harm | Error: trial court omitted required no-duty language and later told jury statute didn’t apply; prejudicial — new trial ordered |
| Whether trial court’s response to jury’s question on duty to retreat was erroneous | Court’s clarification correct as matter of law | Court’s later statement that no-duty statute did not apply was contrary to §14-51.3 and misleading to jurors | Error: supplemental instruction was contrary to law, likely confused jury, and was prejudicial |
| Admissibility of testimony about Fogg’s specific prior violent acts under Rule 405(b) and right to present defense | Specific-act testimony should be excluded; reputation/opinion testimony sufficed | Specific-act testimony admissible to show victim was aggressor and to support self-defense | Error: exclusion of specific-act evidence was improper and prejudicial because it went to whether Fogg was aggressor and Bass’s reasonable belief; warrants new trial |
| Denial of motion to continue after late disclosure of records about Fogg’s violence | Denial within trial court’s discretion; Bass had opportunity to present reputation evidence | Denial prevented reasonable investigation and impeded presentation of complete defense and effective assistance of counsel | Error: denial prejudiced Bass’s ability to investigate and present specific-act evidence; contributes to reversal and new trial |
Key Cases Cited
- State v. Osorio, 196 N.C. App. 458 (discussing standard of review for jury instructions)
- State v. Whetstone, 212 N.C. App. 551 (defining deadly vs. nondeadly force and self-defense principles)
- State v. Pearson, 288 N.C. 34 (common-law rules on duty to retreat and deadly force)
- State v. Morgan, 315 N.C. 626 (defendant entitled to no-duty-to-retreat instruction when evidence warrants)
- State v. Lee, 789 S.E.2d 679 (N.C. Ct. App.) (Court of Appeals’ contrary analysis limiting no-duty presumption to home/vehicle/workplace, discussed but distinguished by majority)