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Another Self-Defense Decision on a Troublesome Doctrine

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In State v. Harvey, ___ N.C. ___, ___ S.E.2d ___ (June 14, 2019), a five to one majority of the North Carolina Supreme Court affirmed the unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 500 (2018), holding that the trial judge properly refused to instruct the jury on perfect and imperfect self-defense in a homicide case. In so ruling, the majority in the Supreme Court and Court of Appeals relied on the “belief” doctrine created by our courts over the last 25 years. The opinions, four in all, show that our courts are continuing to wrestle with the implications of that doctrine.

Facts of the Case. The majority and dissenting opinions in Harvey, in both the Supreme Court and Court of Appeals, had differing views of the evidence. Here is a summary of the facts described by the majority of the Supreme Court, with some of the differences noted.

Briefly, the decedent, Tobias Toler, went to a party at the mobile home of the defendant, Alphonzo Harvey. Toler was drinking a high alcohol beer and began staggering around Harvey’s home, acting in a loud and rowdy manner, and cussing. Harvey told Toler to leave about seven or eight times, but Toler refused to leave unless Harvey went outside with him. Once the two were outside, Toler said he ought to whip Harvey’s “damn ass.” He threw a plastic bottle at Harvey and missed; he also threw a small broken piece of brick at Harvey, cutting Harvey’s finger. (The dissent in the Supreme Court observed that other testimony indicated that the bottle was glass and that the brick hit the side of the mobile home with a loud thud. Slip op., dissent, at 3 n.1.)

While outside, Harvey again told Toler to leave, and Toler hit Harvey in the face. Harvey hit him back in the face. At some point in the conflict, Toler produced a small pocketknife, telling Harvey he ought to kill his “damn ass,” and Harvey went inside and retrieved a knife of his own. (The majority noted that witnesses testified that Harvey’s knife resembled an iron pipe with a blade on the end, Slip op., majority, at 3 n.3, while the dissent cited Harvey’s testimony that the knife was mounted on the end of a wooden rod. Slip op., dissent, at 4.).

The majority and dissenting opinions describe the fatal exchange differently. According to the majority, after returning to the yard, Harvey approached Toler while swinging the knife, made a stabbing motion three times, and pierced Toler’s chest, which resulted in Toler’s death. Slip op. at 3–4. The dissenting opinion relied on Harvey’s testimony that Toler “came up on” him with his pocketknife in hand, which is when Harvey hit Toler with his knife. Slip op., dissent, at 4.

Counsel for Harvey gave notice of the intent to rely on self-defense before trial and requested self-defense instructions at trial, including an instruction on voluntary manslaughter. The trial judge refused these instructions and instructed the jury to consider only whether the defendant was guilty of first-degree murder, guilty of second-degree murder, or not guilty. The jury convicted Harvey of second-degree murder, and the trial judge sentenced him to a term of 483 months (about 40 years) to 592 months imprisonment. (The record indicates that Harvey was in prior record level VI, having been convicted of 16 misdemeanors and one Class I felony during a span of 30 years. Settled Record on Appeal at 37–40.)

The Majority Opinion. The majority of the North Carolina Supreme Court began by recognizing two types of self-defense in North Carolina—perfect and imperfect self-defense. To obtain an instruction on either of the two, the defendant must produce evidence that (1) he in fact formed a belief that it was necessary to kill his adversary to protect himself from death or great bodily harm and (2) his belief was reasonable. Slip op., majority, at 6–7. Previous decisions have used this phrasing to describe these requirements. See State v. Bush, 307 N.C. 152 (1982), quoting State v. Norris, 303 N.C. 526 (1981). The majority found that the evidence “fails to manifest any circumstances existing at the time defendant stabbed Toler which would have justified an instruction on either perfect or imperfect self-defense.” Slip op., majority, at 8.

Under the majority’s view, the problem was essentially with the first requirement.

Despite his extensive testimony recounting the entire transaction of events from his own perspective, defendant never represented that Toler’s actions in the moments preceding the killing had placed defendant in fear of death or great bodily harm . . . . On the other hand, defendant’s own testimony undermines his argument that any self-defense instruction was warranted. Slip op., majority, at 8–9.

The majority pointed to portions of Harvey’s testimony in which he referred to the stabbing as “the accident,” stated that his purpose in getting the knife was because he was “scared” that Toler was going to hurt him, and represented that what he sought to do with the knife was to make Toler leave. Id. at 9–10. The majority pointed to prior decisions holding that the defendant was not entitled to self-defense instructions where he claimed the killing was accidental, made self-serving statements that he was scared, or fired a gun to make the victim and others retreat. Id. at 9. Because Harvey failed to present evidence that he believed it was necessary to fatally stab Toler in order to protect himself from death or great bodily harm, he was not entitled to an instruction on perfect or imperfect self-defense.

The Dissenting Opinion. Justice Earls, in dissent, found that the trial judge and the majority “are making the judgment that should be made by the jury . . . who heard the evidence and saw the witnesses testify at trial.” Slip. op., dissent, at 1.

Justice Earls found that the majority opinion imposed a “magic words” requirement, denying Harvey the right to have the jury decide his self-defense claim because he failed to testify specifically that he was in fear for his life and believed he needed to kill Toler to save himself from death or great bodily injury. She found that Harvey met this requirement based on his “repeated testimony that he was scared of Toler, was afraid he would be hurt, and was being threatened with a knife by Toler, who was drunk and just said he ought to kill him.” Id. at 6. She found the cases cited by the majority inapplicable. They involved situations in which the defendant claimed that a gun went off by accident, testified that he was firing warning shots to get the victim to retreat, or offered no evidence of the requirements of self-defense other than his self-serving statements that he was scared. Justice Earls found that Harvey’s isolated use of these words—such as his reference to the incident as “the accident”—did not negate other evidence showing that he intentionally acted in self-defense. “To imply otherwise is to elevate form over substance.” Id. at 9.

Justice Earls also noted that the transcript of the testimony showed that defendant was not an articulate person. He had completed the ninth or tenth grade and had sustained a severe head injury in a car accident in 2008, requiring insertion of a metal plate in his head and affecting his memory and ability to talk and function. She observed: “Inarticulate and less well coached defendants should be treated equally with those who can easily learn the ‘magic words’ the majority would require for a self-defense instruction.” Id. at 8. Justice Earls concluded that the jury, not the trial judge or majority, had the responsibility to weigh the persuasiveness of the evidence, resolve contradictions in the testimony, and determine whether Harvey acted in self-defense, perfectly or imperfectly.

Open Issues. In my previous post on self-defense, I wrote about the importance of considering the impact of North Carolina’s statutory law of self-defense. None of the opinions in Harvey mention the self-defense statutes other than to note that counsel for Harvey conceded at trial that a jury instruction on the statutory castle doctrine in G.S. 14-51.2 was not warranted in the circumstances of the case. Slip op., majority, at 4 n.4. The scope of the statutory protections is therefore left to future cases. The statute may apply, for example, when a person is lawfully on the curtilage of a person’s home and then unlawfully and forcibly tries to enter the dwelling itself.

The wording of the statute on defense of person, G.S. 14-51.3, also may have a bearing on whether the belief doctrine, developed by the courts under the common law and the focus of the Harvey opinions, applies under the statute. G.S. 14-51.3 states that when using force (that is, nondeadly force), the defendant must reasonably believe the “conduct” is necessary to defend against unlawful force. When using deadly force, the person must reasonably believe “such force” is necessary to prevent death or great bodily harm. This simpler phrasing may lead to a simpler view of the testimony defendants must give to rely on self-defense and avoid complicated, uncertain, and divided views on the adequacy of such testimony.

2 comments on “Another Self-Defense Decision on a Troublesome Doctrine

  1. I find our appellate courts’ application of the rule that evidence must be taken in a light most favorable to a particular party to be inconsistent. In the context of a sufficiency argument, when this standard favors the State, the weakest of assumptions are enough. In the context of jury instructions, like the State v. Harvey case, the standard is applied far less expansively. If it is the same standard, which it is supposed to be, why the obvious difference in application? I salute Earls for actually applying the “most favorable” standard in Harvey instead of just mouthing it and doing the opposite.

  2. We need more judges like Anita Earls on the bench. She got this case right. This was a question for the jury. Additionally, it sounds as if the Court is modifying the traditional self-defense doctrine for murder cases from requiring a belief that the action of defending oneself was necessary to a belief that it was necessary to actually kill the other person. Those two are not the same. It sounds as if when a defendant testifies that he for example returned fire at an attacker who is shooting at him but that he did not intend to kill the attacker, just injure and incapacitate him, then this Court would say the self-defense instruction should not be given to the jury. The Court is imposing a new requirement that the defendant must believe it was necessary to kill the attacker in place of the old requirement that the defendant must believe it was necessary to use deadly force against the attacker. (Deadly force is force which can kill but might not; it does not have to be force that successfully kills). It is an unreasonable modification of the self-defense rules. Why punish the person who acted in self-defense hoping his deadly force would only incapacitate his attacker while rewarding the person who acted in self-defense hoping his deadly force would kill his attacker? (The person hoping to only incapacitate his attacker will call the death “accidental,” meaning not that his actions were accidental but that the resulting death was not what he was trying to achieve; he was just trying to protect himself.)