I previously wrote here about the statutory felony disqualification for self-defense in North Carolina, adopted in 2011 by the General Assembly alongside expanded castle protections and clearer stand-your-ground rights for law-abiding citizens. The felony disqualification, in G.S. 14-51.4, states that a person loses the right of self-defense if he or she “[w]as attempting to commit, committing, or escaping after the commission of a felony.” A literal interpretation of the provision places “felonious” defendants in a lose-lose situation: if they defend themselves, they can be prosecuted for their use of force even if the force is otherwise permissible; if they don’t defend themselves, they could suffer injury or even death. In my earlier blog post, I suggested that the felony disqualification may include a “nexus” requirement—that is, that the disqualification applies only if the defendant’s felony in some way creates or contributes to the assault on the defendant and the resulting need for the defendant’s use of force. The Court of Appeals in the recent case of State v. Crump took a literal approach, appearing to make the felony disqualification an absolute bar to self-defense if the defendant contemporaneously engages in a felony.
The evidence in Crump. The facts of the case aren’t pretty. The State’s evidence, detailed in the Court of Appeals’ opinion (Slip Opinion at 2–3), was that the defendant and the co-defendant robbed several patrons at an illegal poker game a few days earlier on September 24. The defendant was charged with several counts of armed robbery and second-degree kidnapping as well as possession of a firearm by a felon, which were joined for trial with the incident that occurred a few days later. The later incident, on September 29, led to the defendant’s claim of self-defense. An acquaintance of one of the patrons who was robbed on September 24 began receiving text messages from one of the stolen cell phones indicating that the people believed to be the robbers were looking for another poker game to rob. The acquaintance invited them to a fake poker game and, when they arrived, called 911. He told the emergency operator that there were two men in a car with loaded guns and that he thought they were intending to rob someone. The police arrived on the scene, an office complex, in the early hours of the morning on September 29.
The Court of Appeals’ opinion doesn’t describe what happened next, but the appellate briefs by the State and defendant largely agree on the facts (available here on the North Carolina Supreme Court and Court of Appeals Electronic Filing Site and Document Library). The State’s evidence was that two police officers observed the defendant’s car parked at the back of the office complex. The officers stepped toward the car, threading their way through a gap between two dump trucks, also parked at the back of the complex. The officer in front had shouldered his shotgun, the officer behind had drawn his service revolver. They were in uniform but had not yet announced that they were officers. The State’s evidence was that the occupants of the car fired several times at them, and the officers returned fire.
The defendant’s evidence was that he loaned his car to the co-defendant on September 24, which he frequently did; that the co-defendant and co-defendant’s brother committed the robbery that day; and that the defendant was unaware until after the September 29 incident that the co-defendant and co-defendant’s brother had used his car in the robbery. The defendant also offered evidence that the co-defendant and co-defendant’s brother wanted to go to a poker game on September 29 and asked him to drive them there. After arriving at the office complex, the defendant waited in the car while the co-defendant’s brother unsuccessfully tried to gain entry into the building. While waiting, the defendant saw a shadowy figure pointing a long gun at them. The defendant felt the impact of two shots on his car and, unaware that the officers were officers, fired several shots at them to give himself time to start the car up and drive off.
The Court of Appeals’ opinion picks up the September 29 incident from there. A low-speed pursuit ensued, ending when the defendant drove over stop sticks placed by the police. On searching the car, the police found several of the items stolen during the previous robbery. Based on the September 29 incident, the defendant was charged with two counts of assault with a deadly weapon with intent to kill, two counts of assault with a firearm on a law enforcement officer, and possession of a firearm by a felon. Slip Op. at 3–4.
The trial court dismissed the robbery and second-degree kidnapping charge involving one of the victims and the robbery charge involving another of the victims during the September 24 robbery. The jury found the defendant not guilty of assault with a firearm on a law-enforcement officer during the September 29 incident. The opinion does not indicate the basis for the acquittal, but the offense requires proof that the defendant knew that the officer was an officer. The jury convicted the defendant of all other charges. Slip Op. at 4.
The self-defense instructions given in Crump. Based on this evidence, the trial court gave the pattern jury instruction on self-defense in N.C.P.I.—Crim. 308.45, which applies to assaults involving deadly force. The instruction repeated verbatim the statutory felony disqualification in G.S. 14-51.4. The defendant requested that the judge instruct the jury that a disqualifying felony must have some connection to the need to use defensive force—specifically, that a felony is disqualifying only when the “felonious acts directly and immediately caused the confrontation that resulted in the deadly threat to him.” Slip Op. at 8. The trial court declined to modify the instruction.
The Court of Appeals upheld the trial court’s instruction. It recognized that the statutory felony disqualification requires a temporal connection—that is, the felony must occur contemporaneously with the need to act in self-defense. Thus, the earlier robbery would not be disqualifying. In the Court’s view, however, the statute does not require a causal connection. The trial court therefore did not err in refusing to include the language requested by the defendant. The Court held further that the defendant was not entitled to self-defense instructions at all because he was committing the offense of possession of a firearm by a felon during the September 29 incident and no causal connection between that felony and the defendant’s use of force was required.
The Court of Appeals gave two basic reasons for its interpretation. First, the Court stated that the plain language of the statute did not require a causal connection. That observation doesn’t necessarily end the argument, however. In an opinion last year interpreting the self-defense statutes, State v. Holloman, 369 N.C. 615 (2017), the North Carolina Supreme Court addressed the aggressor disqualification in G.S. 14-51.4(2). That statute provides that a person who provokes the use of force against himself or herself may use force in return, including deadly force, if the person reasonably believes that he or she faces death or great bodily injury and has no reasonable means of escape. The defendant in Holloman argued that this provision applied even when the defendant begins a conflict with deadly force—that is, when the defendant is an aggressor with “murderous” intent. The Supreme Court recognized that the literal language of the statute did not distinguish between aggressors with or without “murderous intent.” The Court held, however, that the General Assembly could not have intended to allow aggressors with “murderous intent” to rely on self-defense when the other person justifiably uses deadly force to meet the defendant’s unjustified use of deadly force. Despite the literal language of the above exception to the aggressor disqualification, the Court concluded that it did not apply to aggressors with murderous intent. See also State v. Jones, 353 N.C. 159 (2000) (holding that despite literal language, felony murder statute did not apply to DWI as underlying felony).
Second, the Court of Appeals in Crump compared the felony disqualification in G.S. 14-51.4(1) to the wording of G.S. 14-51.2(c)(3). The latter provision is part of the statute on defensive force in one’s home, workplace, or vehicle, which establishes a presumption of reasonableness when the defendant uses force against an unlawful, forcible entry into those places. The specific provision denies that presumption if the defendant is engaged in “any criminal offense that involves the use or threat of physical force or violence against any individual.” The Court found that the inclusion of this language shows that the General Assembly intended to limit the denial of the presumption to offenses involving force or violence, while the absence of such language in the felony disqualification shows that the General Assembly intended to impose no limits.
A difficulty with this interpretation is that it gives with one hand and takes away with the other. If a defendant is engaged in an offense that does not involve force or violence in one of the specified locations (home, workplace, vehicle), the defendant gets the presumption of reasonableness; however, if the offense is a felony, the defendant loses the right of self-defense entirely in those places, whether or not the offense involves force or violence. That’s because G.S. 14-51.4 states that the justification in G.S. 14-51.2, which applies to self-defense within one’s home, workplace, or vehicle, as well as the justification in G.S. 14-51.3, which applies to defense of person, is unavailable if the felony disqualification applies. The opinion in Crump does not address this issue.
Potential impact of holding in Crump. In light of the evidence of the earlier robbery and the shooting at the police, the jury in Crump might have decided that the defendant did not have the right of self-defense, even with the defendant’s requested modification of the instruction. The Court of Appeals’ discussion of the facts in Crump suggests that the Court had reservations about the defendant’s version of the events. The trial court’s literal instruction regarding the statutory felony disqualification, however, considerably narrowed the jury’s ability to consider the defendant’s claim of self-defense, if not effectively precluding it.
Moreover, a literal application of the statute may bar self-defense in a broader array of circumstances than presented in Crump. Here are a couple of examples that come to mind:
- Joan, a domestic violence victim, is addicted to opioids from medication previously prescribed to her for pain from her injuries. She is in illegal possession of opioids, a felony, when she is violently assaulted by her boyfriend for reasons that have nothing to do with the felony she was committing. She defends herself to avoid death or serious injury.
- Roger was convicted several years ago of a nonviolent property felony. Although unlawful, he keeps a gun in his home to protect himself and his family. Armed intruders break into his home one night. He shoots to defend himself and his family.
Suppose in these examples that the police and prosecutor believe a different version of what transpired and pursue charges against Joan and Roger. I wonder whether our General Assembly really intended to preclude them from defending themselves when attacked and from telling their side of the story at trial. See Perkins v. State, 576 So. 2d 1310, 1314 (Fla. 1991) (concurring opinion) (stating that precluding self-defense for unrelated felony would violate a defendant’s fundamental right to defend his or her life and liberty in court by asserting a reasonable defense and would violate the fundamental right to meet force with force in the field when attacked illegally and without justification, the “right to life itself”); see also R. Christopher Campbell, Unlawful/Criminal Activity: The Ill-Defined and Inadequate Provision for a “Stand Your Ground” Defense, 20 Barry L. Rev. 43 (Fall 2014) (discussing limits on right of person engaged in unlawful activity to use force without retreating). But see Dawkins v. State, 252 P.2d 214 (Okla. Crim. App. 2011) (refusing to require nexus when defendant used illegally modified shotgun in defense of another).
Other questions. The statutory felony disqualification raises additional questions, not specifically addressed in Crump.
- In its instructions, the trial court listed uncharged felonies as disqualifying the defendant from acting in self-defense, including the uncharged offenses of attempted robbery with a dangerous weapon and possession of stolen goods during the September 29 incident. Is that permissible? If so, what instructions does the judge have to give the jury on the uncharged crimes? See generally N.C.P.I.—Crim. 214.10 n.5 (directing for a first-degree burglary charge that the judge define the felony that the defendant intended to commit, an element of burglary).
- The trial court also listed as disqualifying felonies the charged offenses of assault with a deadly weapon with intent to kill (AWDWIK) and assault with a firearm on a law enforcement officer. The Court of Appeals recognized that AWDWIK could not be a disqualifying felony because it was the very act that the defendant claimed was in self-defense. The State in Crump agreed that the inclusion of this charge in the felony disqualification instructions was a “circularity error.” The Court of Appeals indicated that assault with a firearm on an officer was a disqualifying felony, but that statement seems incorrect because it too involved the act that the defendant claimed was in self-defense. A different issue is whether the jury can base a felony disqualification on an offense for which it acquits the defendant. It seems not.
- Crump did not discuss potential defenses to disqualifying felonies, such as a necessity defense to the offense of possessing a firearm by a felon. Presumably, the jury would have to be instructed on defenses to a disqualifying felony, which, if found by the jury, would allow the jury to consider self-defense.
- An additional issue [which I did not identify in my initial post] is the extent to which common law defensive force principles survive the adoption of the defensive force statutes. Crump considered the impact of the statutory felony disqualification on the defendant’s statutory right of self-defense. Slip op. at 6 (stating that defendant raised statutory justifications to AWDWIK charge). It did not specifically address any rights under the common law. See, e.g., G.S. 14-51.2(g) (stating that section does not repeal any other defense that may exist under common law); State v. Lee, ___ N.C. ___, 811 S.E.2d 563 (2018) (Martin, C.J., concurring) (querying whether defensive force statutes partially abrogate or completely replace common law on defensive force).
- As discussed in my earlier blog post on this subject, the statutory felony disqualification, when applicable, bars self-defense to assault charges such as those in Crump. In a homicide case, it probably does not bar imperfect self-defense, which reduces murder to manslaughter under North Carolina law. This is so because G.S. 14-51.4 states that the felony disqualification bars the “justification” in G.S. 14-51.2 (defense within home, workplace, or vehicle) and G.S. 14-51.3 (defense of person). Imperfect self-defense is not typically considered a justification defense so the disqualification would not apply.
These and other questions will need to be addressed in applying the felony disqualification. Should our Supreme Court grant review, however, the first question will be whether the felony disqualification includes a causal nexus requirement.