The defendant presented competent evidence tending to show that he was acting in self-defense when he shot Raquan Neal, the Court of Appeals recently said in State v. Myers, No. COA24-435 (N.C. Ct. App. Nov. 19, 2024), and the trial court’s failure to instruct on self-defense was error. Reciting both the common law and the statutory test for self-defense, the opinion in Myers seems to represent a straightforward application of settled law – except for one thing. The defendant “testified he was not trying to kill Neal.” Myers, Slip Op. 3. Under the common law, a defendant was not privileged to use deadly force unless he believed at the time that it was necessary to kill his assailant. Prior cases found no error in the trial court’s denying an instruction on self-defense when the defendant thus disavowed the requisite intent. This post considers the opinion in Myers.
An Unlawful Killing
There is no statutory definition of the term “murder.” Cf. G.S. 14-17. Rather, murder is defined, as at common law, as an intentional and unlawful killing of another human being with malice aforethought. State v. Crawford, 329 N.C. 466, 480 (1991). Unlawfulness is thus an element of the offense. Indeed, the element of unlawfulness cannot be eliminated without removing murder from the category of crime. See Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 79 (3rd ed. 1982). Self-defense negates the element of unlawfulness. State v. Marley, 321 N.C. 415, 420 (1988).
Absent evidence of justification or excuse, the State carries its burden of proving unlawfulness by showing the killing resulted from the intentional use of a deadly weapon. Marley, 321 N.C. at 420. When, however, there is evidence of self-defense, the presumption of unlawfulness disappears but the logical inference from the facts proved may be weighed against this evidence. State v. Hankerson, 288 N.C. 632, 651 (1975), rev’d on other grounds, 432 U.S. 233 (1977). Hence, to avoid the presumption, the defendant has the burden to produce some evidence of self-defense or rely on such evidence as may be present in the State’s case. Id. at 650; accord State v. Reynolds, 307 N.C. 184, 190 (1982). In any event, the defendant’s burden is not a heavy one. See State v. Bush, 307 N.C. 152, 160 (1982) (“when there is any evidence in the record”); see also John Rubin, The Law of Self-Defense in North Carolina, § 8.2(c), 186 (1996).
Defensive Force in Transition
Until the twentieth century, the law of self-defense in North Carolina was governed largely by common law. By the 1980s, the common law of self-defense had crystalized into a four-factor test. The law of perfect self-defense was said to excuse a killing if, at the time of the killing,
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, . . .
(4) defendant did not use excessive force, . . . .
State v. Norris, 303 N.C. 526, 530 (1981).
Under this formulation, perfect self-defense was available only if it appeared that the defendant believed it was necessary to kill his attacker in order to save himself. State v. Cook, 254 N.C. App. 150, 153 (2017), aff’d, 370 N.C. 506 (2018). Consequently, a defendant was not entitled to an instruction on self-defense “while still insisting that he did not fire the pistol at anyone, that he did not intend to shoot anyone and that he did not know anyone had been shot.” State v. Williams, 342 N.C. 869, 873 (1996). The defendant’s own testimony then “disproves the first element of self-defense.” Id. In sum, “the use of a firearm that a defendant describes as something other than an aimed, deliberate attempt to kill the victim cannot support a finding of perfect self-defense.” State v. Fitts, 254 N.C. App. 803, 807 (2017). My colleague John Rubin discussed the issue here.
Our current defensive force statutes date from 2011. Under G.S. 14-51.3, a person is justified in the use of deadly force and does not have a duty to retreat when, among other things, “[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.” G.S. 14-51.3(a)(1). In State v. McLymore, 380 N.C. 185 (2022), our Supreme Court observed that G.S. 14-51.3 “closely tracks” the earlier common law definition of self-defense. Id. at 191. It concluded, however, that G.S. 14-51.3 supplants the common law on all aspects of the law of self-defense addressed by its provisions. Id.
State v. Myers
In December 2021, the defendant and his friend Zearious Miller visited Monroe Discount Beverage (“Joe’s Store”) where they ran into Deoveon Byrd and Raquan Neal. The defendant approached Byrd and spoke to him. Miller and Neal approached them, and Miller struck Byrd with a firearm. Neal ran to his car and retrieved a firearm, and Miller followed, trying to grab Neal’s gun. The defendant heard gunshots and saw Miller fall, apparently shot by Neal. Neal ran into the store, and the defendant fired eight times at Neal, seriously injuring him. Myers, Slip Op. 2-3.
The defendant was charged with attempted murder, assault with a deadly weapon inflicting serious bodily injury, and discharging a weapon into occupied property. At trial, the defendant requested a jury instruction on self-defense. Based on the testimony and the caselaw, the trial court believed that an instruction was not warranted, and it refused the defendant’s request. Myers, Slip Op. 6.
On appeal, the defendant argued the trial court erred by failing to instruct the jury on self-defense. The Court of Appeals recited the relevant statutory provisions: a person is justified in the use of deadly force if he or she reasonably believes such force is necessary to prevent imminent death or great bodily harm. Myers, Slip Op. 7 (quoting G.S. 14-51.3(a)). It also recited the four-factor common law test. Myers, Slip Op. 8 (quoting State v. Bush, 307 N.C. 152, 158 (1982)). Here, the evidence showed that the defendant fired at Neal as Neal went into the store; that the defendant testified he was scared, and that the defendant testified that he was trying to defend himself. Viewing the evidence in the light most favorable to the defendant, the Court of Appeals concluded “the evidence is sufficient to support an instruction of at least imperfect self-defense, if not perfect self-defense.” Myers, Slip Op. 10. The trial court erred by failing to provide the requested instructions on self-defense, and the defendant was entitled to a new trial. Myers, Slip Op. 10-11.
Conclusion
It is not apparent from the opinion in Myers that the trial court’s ruling, denying a self-defense instruction, was based on the defendant’s own testimony, disavowing intent to kill. Indeed, the Court of Appeals does not grapple with that line of cases upholding the denial of an instruction in those circumstances. (The State certainly argued that caselaw on appeal.) The result is an opinion that is somewhat difficult to square with recent precedent. Cf. Fitts, 254 N.C. App. 807.
One possible explanation is that the statutory right to use deadly force is not couched in terms of the defendant’s belief in the necessity to kill his assailant. Cf. G.S. 14-51.3 (“believes that such force is necessary”). Perhaps the abrogation of the common law recognized in McLymore compels reconsideration of those cases decided under the four-factor test. This is not the route Myers takes. It recites both the statutory and the common law tests for self-defense, giving preference to neither.
For prosecutors, the lesson is clear. Contesting an instruction on self-defense in doubtful cases provides the defendant with a powerful argument on appeal. The extent to which the old rules have survived the abrogation of the common law of self-defense remains to be seen.