State v. LeeÂ, 248 N.C. App. 763

Background

On Jan. 1, 2013 Gyrell Shavonta Lee shot and killed Quinton Epps after an altercation in a public street; Walker (Lee’s cousin) had been shot earlier in the confrontation and later died. Lee was indicted for first‑degree murder and convicted of second‑degree murder.
Witness testimony conflicted: one eyewitness (Jackson) testified Lee emerged and shot Epps while Epps was on the ground; Lee testified he shot after Epps pointed a gun at him following shots at Walker.
Police recovered Lee’s .45 handgun and ballistics linked casings and bullets to that gun.
At trial Lee asserted self‑defense (and, at times, defense of others); the jury convicted and Lee received a presumptive range sentence (192–243 months).
On appeal Lee raised six claims of error: omission of a no‑duty‑to‑retreat instruction; an aggressor instruction; omission of a defense‑of‑another instruction; exclusion of a witness statement; alleged coercive jury deliberation; and failure to consider mitigating factors at sentencing.
The Court of Appeals reviewed unpreserved instructional and jury‑procedure claims for plain error, considered the record in the light favorable to Lee where required, and affirmed (NO ERROR).

Issues

Issue	State's Argument	Lee's Argument	Held
Omission of no‑duty‑to‑retreat instruction	No reversible error because evidence did not show Lee was in his home/curtilage entitled to stand‑your‑ground instruction.	Omission was prejudicial; jury would likely have acquitted if instructed there was no duty to retreat.	No error: evidence placed shooting in a public street, not home/curtilage, so pattern no‑retreat instruction not warranted.
Aggressor instruction (jury told Lee could be initial aggressor)	Instruction permissible because conflicting evidence supported a finding Lee voluntarily entered the fight or behaved as aggressor.	There was no evidence Lee was the aggressor; giving instruction was erroneous.	No plain error: credibility conflicts (including eyewitness) allowed jury to find Lee the aggressor.
Failure to instruct on defense of another	No instruction required because evidence did not show Lee reasonably believed deadly force was necessary to save Walker when Lee fired.	Lee shot to protect Walker and thus was entitled to a defense‑of‑another instruction.	No error: at the time Lee shot, threat to Walker had ceased; record did not support reasonable belief deadly force was necessary to protect another.
Exclusion of uncle’s testimony (statement by Lee)	Exclusion was not preserved (no offer of proof) and was harmless because other evidence supported the challenged points.	Excluding Bowser’s recounting of Lee’s calming words prejudiced Lee and deprived jury of exculpatory evidence.	No reversible error: defendant failed to make an offer of proof, and admission would not likely have changed result.
Jury deliberation length / alleged coercion	Court acted within discretion (gave Allen instruction with consent, checked jury status, and resumed when foreman said progress was possible).	Court required jury to deliberate late into the evening, coercing a verdict in violation of § 15A‑1235(c).	No plain error: Allen instruction properly given, court did not coerce verdict, and totality of circumstances show no improper pressure.
Sentencing: failure to consider mitigating factors	Not reversible: court sentenced within presumptive range and is not required to make findings or comment when it does not depart.	Trial court failed to consider mitigating evidence and thus abused discretion.	No error: sentencing within presumptive range; court not required to make mitigation findings or to articulate consideration.

Key Cases Cited

State v. Withers, 179 N.C. App. 249 (instructional preservation and plain‑error review)
State v. Morgan, 315 N.C. 626 (no duty to retreat in home/curtilage when evidence supports it)
State v. Pearson, 288 N.C. 34 (limits on use of force when not in own dwelling/curtilage)
State v. Williams, 315 N.C. 310 (considerations for Allen instruction and jury coercion analysis)
State v. May, 368 N.C. 112 (statutory § 15A‑1235(c) is permissive; plain‑error standard for unpreserved claims)