78 N.C. App. 100 | N.C. Ct. App. | 1985
Lead Opinion
Defendant’s first assignment of error is that the trial judge erred in denying defendant’s motion to dismiss at the close of the State’s evidence and his motion to set aside the verdict. By introducing testimony, however, defendant waived his right to assign as error the denial of his motion to dismiss at the close of the State’s evidence. G.S. 15-173; State v. Jones, 296 N.C. 75, 248 S.E. 2d 858 (1978). The motion to set aside the verdict is a post-trial motion pursuant to G.S. 15A-1414, the disposition of which is within the discretion of the trial court. Therefore, refusal to grant a motion to set aside the verdict is not error absent a showing of abuse of that discretion. State v. Batts, 303 N.C. 155, 277 S.E. 2d 385 (1981).
The State’s evidence tended to show that, at the time of the shooting, defendant was under the influence of drugs and alcohol; that defendant had pointed the gun at the victim earlier; that defendant and the victim’s sister were fighting when the victim entered their apartment; that the victim pushed defendant to interpose himself between his sister and the defendant; and that defendant intentionally shot the victim, inflicting serious injury. While defendant did present evidence tending to show he acted in self-defense, the jury simply chose to believe the victim’s version of events rather than defendant’s. Defendant has failed to show that the trial judge abused his discretion in any way by denying
Defendant’s second assignment of error relates to the instruction given by the trial judge on the issue of self-defense; specifically, that it was error for the trial judge to instruct that one who is the aggressor in an altercation cannot claim self-defense unless he abandons the fight. Defendant asserts that no evidence supported a conclusion that he was the aggressor and that the instruction prejudiced him by misleading the jury. Clearly, it would be error for a trial judge to instruct the jury on a theory which could be used to convict defendant when that theory has no evidentiary support. See, e.g., State v. Brown, 312 N.C. 237, 321 S.E. 2d 856 (1984). However, there is evidence in this case to enable a reasonable person to conclude that defendant was the aggressor. The victim testified that defendant had pointed a gun at him in a threatening manner less than five minutes before the shooting; that his sister and the defendant were arguing when he entered their apartment; and that the defendant still had the gun in his hand. The defendant’s conduct at or around the time of the shooting was such as to justify a conclusion that the defendant was the aggressor or, at least, not without fault in bringing on the altercation which led to the shooting. See State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970). Thus, the giving of the challenged instruction was not error.
Defendant next argues that the form of the above challenged instruction was erroneous because it did not specifically include an instruction that the claim of self-defense can be revived by withdrawing from the original difficulty. Defendant failed to object to this omission at trial when given an opportunity to do so. Therefore, unless “plain error” is found, this assignment of error has not been properly preserved for appeal. N.C. Rules App. Proc. 10(b)(2). The trial' judge did include in his instruction on self-defense that an aggressor cannot claim self-defense “unless he thereafter attempted to abandon the fight and gave notice to his opponent that he was doing so.” This statement on the rule of restoration of the right to act in self-defense is sufficient to avoid a finding of “plain error.”
Defendant also argues that the self-defense instruction did not meet the requirements of G.S. 15A-1232 by failing to ade
The same rationale applies to defendant’s third assignment of error. In summarizing the evidence, the trial judge erroneously stated that when Mike Wilson entered defendant’s bedroom, “He saw James Lilley holding a gun pointed in her direction” (referring to Wilson’s sister). All agree that there was no evidence presented at trial which showed that defendant had ever pointed the gun at Wilson’s sister. This misstatement of fact, however, did not amount to prejudicial error. As noted above, an isolated statement in an otherwise substantially correct charge does not constitute prejudicial error. State v. Gatling, 275 N.C. 625, 170 S.E. 2d 593 (1969). The erroneous statement did not relate to a crucial element of the offense or of defendant’s claim of self-defense. Additionally, the trial judge instructed that the jurors’ own recollection of the evidence was to control. This instruction served to offset whatever prejudice may have resulted from the misstatement. Finally, defendant failed to point out the error to the trial judge when given an opportunity to do so before the jury retired. By failing to give the trial judge the opportunity to remedy the error, defendant effectively waived his right to assert this statement as error. State v. Pratt, 306 N.C. 673, 295 S.E. 2d 462 (1982).
Defendant’s fourth assignment of error is that the trial judge committed prejudicial error by failing to instruct the jury on the right of one to use force in self-defense without retreating when he is in his own home. Although defendant did not request such an instruction at trial, nor did he object to its omission, he asks us to consider it on appeal under the “plain error” rule, adopted in State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983) as an excep
In the case before us, the trial court should have included an instruction to the effect that the defendant had no duty to retreat when attacked in his own home. However, for the reasons set forth below, the failure to give such an instruction, in our view, falls short of the requirements of the “plain error” rule.
First, the rule allowing a person to stand his ground and not requiring him to retreat when attacked in his home applies only when the defendant is free from fault in bringing on the difficulty leading to the assault. State v. Pearson, 288 N.C. 34, 215 S.E. 2d 598 (1975). In this case, a reasonable juror could conclude that the defendant was not free from fault where there was evidence showing that defendant had hit the victim’s sister; that defendant had earlier pointed a gun at the victim; that defendant had asked the victim to come over; that the victim heard the defendant and his sister quarrelling when he entered their apartment; and that defendant still had the gun in his hand when the victim entered the bedroom. This evidence is sufficient to support a conclusion that the defendant was not free from fault and, thus, could not avail himself of the general rule that one has no duty to retreat when attacked at home.
Second, there is conflicting evidence as to whether the victim actually “attacked” defendant. The victim testified that he had merely pushed the defendant to step in between his sister and the defendant. The defendant and his girlfriend testified that the victim “jumped on” defendant. Had the jury chosen to believe their testimony, defendant would likely have been acquitted. The jury apparently found the victim to be more credible. In the cases cited by the defendant supporting this assignment of error, the evidence was uncontroverted that the victim in each case had
Defendant’s fifth and final argument is that the trial judge erred in failing to give an instruction on the right to defend one’s habitation. Such an instruction is not supported by the evidence, however, and this defendant was not entitled to have the instruction given. The rules governing defense of habitation are designed to allow the occupants of a home to protect themselves and their home where they may not have an opportunity to see their assailant or ascertain his purpose. McCombs, supra. However, once the assailant has gained entry, the usual rules of self-defense replace the rules governing defense of habitation. Id. The defendant in this case, regardless of whose version of the incident is believed, was aware of the victim’s presence and his purpose. Thus, only the normal rules of self-defense applied, and the defendant could not claim defense of habitation to justify shooting the victim.
In light of the facts of this case, the trial judge’s instructions to the jury cannot be said to have prejudiced the defendant, nor affected the result. Having carefully reviewed the record and thoroughly considered all assignments of error, we find
No error.
Dissenting Opinion
dissenting.
Believing that the trial judge committed “plain error” by failing to instruct the jury on the right of defendant to use force in self-defense without retreating because he was in his own home, I dissent. See State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). That the error prejudicially affected substantial rights of the defendant is buttressed by my belief that this is a close case on all issues, especially the issues involving whether defendant was the aggressor and the court’s obvious misstatement that Mike Wilson, the victim, “saw James Lilley [the defendant] holding a gun pointed in her direction” (referring to Wilson’s sister).
