Self-defense, Intent to Kill and the Duty to Retreat

Consider the following scenario: Driver Dan is traveling down a dark county two-lane road in his sedan. Traffic is light but slow due to the cold weather and mist. Another driver in a truck appears behind Dan and starts tailgating him, getting within a few feet of his bumper. After unsuccessfully trying to pass Dan, the other driver begins tailgating Dan even more, now staying within inches of his bumper. When the cars ahead turn off and the road is clear,  slows to let the other driver pass, but the other driver continues closely riding Dan’s bumper for several miles, flashing high beams at times. Eventually, the other driver pulls alongside Dan and begins “pacing” him, staying beside Dan’s car instead of passing. The other driver then begins to veer into Dan’s lane, forcing Dan’s passenger-side tires off the road. As Dan feels the steering wheel begin to shake, he fears losing control of his car and decides to defend himself with his (lawfully possessed) pistol. He aims through his open window at the other driver’s front tire and shoots, striking it and halting the other vehicle. The other driver stops without further incident, and Dan leaves. Dan is eventually charged with shooting into an occupied and operating vehicle, a class D felony and general intent crime.

Pop quiz: taking the evidence in the light most favorable to the defendant, is Dan entitled to a self-defense instruction?

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Vote here, and then read on for the answer.

Trial. At least according to the defendant’s evidence, those were essentially the facts in State v. Ayers, ___ N.C. App. ___ (Sept. 4, 2018); temp. stay allowed, ___ N.C. ___ (Sept. 12, 2018). The defendant was a 49 year-old retired Army paratrooper. He was returning from the Veterans Administration hospital in Durham in January 2015 when the above events occurred. He testified at trial to his fear and his intent to shoot the tire. He thought at the time: “I don’t have to shoot the guy. I can just disable his vehicle.” Slip Op. at 5. The trial judge instructed the jury on self-defense pursuant to N.C.P.I-Crim. 308.45, but omitted the no-duty-to-retreat language of the pattern instruction, consistent with choice C) above. The jury convicted (although, notably, the judge found extraordinary mitigation and suspended the sentence). The defendant appealed, arguing that the jury should have been instructed that he had no duty to retreat under G.S. 14-51.3.

Entitlement to Self-Defense Instruction. Before addressing whether the defendant had a duty to retreat, the court implicitly considered the State’s preliminary argument on appeal (seen in its brief)—that the defendant wasn’t entitled to a self-defense instruction at all since he didn’t shoot with the intent to kill the other driver. Any error in the trial judge’s omission of the no-duty-to-retreat language from the instructions was therefore harmless. The Court of Appeals rejected this view, clarifying the intent needed to justify a self-defense instruction:

Although the Supreme Court has held that a self-defense instruction is not available where the defendant claims the victim’s death was an ‘accident’, each of these cases involved facts where the defendant testified he did not intend to strike the blow. For example, a self-defense instruction is not available where the defendant states he killed the victim because his gun accidentally discharged. A self-defense instruction is not available when a defendant claims he was only firing a warning shot that was not intended to strike the victim. These lines of cases are factually distinguishable from the present case and are not controlling, because it is undisputed Defendant intended to ‘strike the blow’ and shoot [the other driver’s] tires, even if he did not intend to kill [him]. Id. at 10 (internal citations omitted).

In other words, it was the intentional use of force against his assailant that mattered, not whether the defendant meant for the “blow” to specifically kill. The court said that self-defense, at least in the context of this case, did not require lethal intent, merely a “general intent to strike the blow.” Id. at 8. John Rubin has been analyzing this issue for several years, both in his book on self-defense and in recent blog posts. Be sure to read his comments at the end of this post, where he explains his views in greater detail.

Duty to Retreat. Turning to the question of whether the jury was properly instructed, the State advanced the argument that the defendant had no right to “stand his ground,” in part because he wasn’t “standing” anywhere:

In the present case, defendant was not standing anywhere. He was in motion on a highway. Nor, by virtue of defendant being in motion, could he necessarily retreat. Defendant is essentially contending that he had a right to stay the course, or to stay in motion driving upwards of thirty miles per hour on a busy highway, rather than a duty to stop to avoid the necessary use of force. Brief of State-Appellee at 29, State v. Ayers, ___ N.C. App. ___ (Sept. 4, 2018).

Therefore, the argument went, there was no error in failing to instruct the jury on no-duty-to-retreat.

The court rejected this argument and held that the defendant had no duty to retreat on a public highway. G.S. 14-51.3(a) states, in pertinent part: “A person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has a lawful right to be if . . . (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.” The highway was a public place where the defendant was lawfully present in his own vehicle and, under the statute, he had no duty to stop to avoid the use of force. “Defendant was under no legal obligation to stop, pull off the road, veer from his lane of travel, or to engage his brakes and risk endangering himself.” Id. at 13. Thus, the no-duty-to-retreat language of the instruction should have been given, and the failure to do so was prejudicial. “Without the jury being instructed that Defendant had no duty to retreat from a place where he lawfully had a right to be, the jury could have determined, as the prosecutor argued in closing, that Defendant was under a legal obligation to cower and retreat.” Id. The court’s holding reinforces the breadth of the statutory language that a person has the right to “stand” his or her ground in any lawful place, even when driving and not literally standing.

Takeaway. So, the answer to the poll is D): The defendant was entitled to a self-defense instruction, including a no-duty-to retreat provision. To be clear, the court doesn’t say that the defensive force was justified by the defendant in Ayers. The court recognized, however, that whether the defendant’s use of force was reasonable is a question of fact for the jury to determine upon proper instructions. For, as the court observed in its concluding remarks: “Self-preservation is the most basic and fundamental natural right any individual possesses.” Id. at 14.

2 thoughts on “Self-defense, Intent to Kill and the Duty to Retreat”

  1. Ayers is an important development with respect to the troublesome question of whether a defendant must intend to kill to rely on self-defense, a requirement that made its way into North Carolina case law in the 1990s and has appeared in some non-homicide cases more recently. At least on the facts of the case before it, the court in Ayers recognized that a person who intentionally uses force, including deadly force, against another person is entitled to rely on self-defense, whether or not he or she intended to kill. The case leaves some issues open about other offenses and circumstances, however.
    • The court in Ayers stated that shooting into occupied property is a general intent crime; therefore, it was sufficient for the defendant to have the general intent to “strike the blow” of intentionally firing at the other vehicle. Does this mean that the defendant in Ayers could not have relied on self-defense if charged with a specific intent crime, such as assault with a deadly weapon with intent to kill? Such a rule could continue to create confusion over the intent required of the defendant. Thus, if the defendant denied the intent to kill, he could not rely on self-defense to assault with a deadly weapon with intent to kill but arguably could rely on self-defense to the lesser offense of assault with a deadly weapon. Apart from being potentially confusing to the jury, it is not clear why the charge chosen by the State, and the elements of the charged offense, should determine whether a jury decides whether a defendant’s intentional, defensive act is justified in self-defense.
    • The court in Ayers relied on a North Carolina Supreme Court decision from the 1990s, State v. Richardson, 341 N.C. 585 (1995), in which the Supreme Court sought to clarify the intent required of a defendant. In Richardson, the Supreme Court held that a specific intent to kill is not actually required for a defendant to rely on self-defense against a murder charge. The court in Ayers observed that, like the charge before it, the charge in Richardson was a general intent crime—second-degree murder. Thus, Ayers suggests that self-defense is available as a defense to second-degree murder whether or not the defendant intended to kill. It does not appear, however, that the Supreme Court in Richardson intended to limit its holding to second-degree murder (despite later decisions finding an intent-to-kill requirement without discussing the impact of Richardson). The Supreme Court stated generally that although the pattern jury instructions on self-defense for murder required that the defendant have reasonably believed in the need to kill to defend against death or great bodily harm, the instruction didn’t mean, and the jury would not have interpreted the instruction as requiring, that the defendant must have had the intent to kill.
    • The Ayers court continued to distinguish cases in which the defendant does not specifically intend to injure another person, as in cases in which the defendant fires a warning shot defensively and hits the victim. In that instance, the defendant does not intend to “strike the blow.” This approach distinguishes the facts in Ayers from a decision last year involving a charge of shooting into occupied property, State v. Fitts, ___ N.C. App. ___, 803 S.E.2d 654 (2017). There, the court held that the defendant was not entitled to rely on self-defense where he fired behind him while running in the opposite direction and hit the victim in a car. While the court in Fitts stated the defendant must have intended to kill to rely on self-defense, which the court found he did not have, the facts seem to be in accord with the approach in Ayers. Thus, when a person intentionally fires at a vehicle, he or she intends to “strike the blow” and may rely on self-defense, as in Ayers; when a person fires without regard to whether he hits a vehicle, he may not rely on self-defense, as in Fitts. The drawback to this approach is that it continues to draw potentially difficult distinctions about the defendant’s intent. Arguably, a clearer approach would be to allow self-defense when the defendant engages in an intentional, defensive act, whether the act is a shot at a person, a warning shot, a struggle over a gun, or other intentional act; and to disallow self-defense and permit the defendant to rely on accident only when the defendant acts inadvertently, as when the defendant is cleaning a gun, pointing a gun at someone in jest, or engaging in other non-defensive acts. New G.S. 14-51.3 provides support for an approach not dependent on the exact intent of the defendant, as it allows nondeadly force when a defendant reasonably believes the conduct is necessary to defendant against imminent, unlawful force and allows deadly force when a defendant reasonably believes such force is necessary to prevent imminent death or great bodily harm.

  2. The use of “deadly force” has no connection what-so-ever to the INTENT of killing someone, merely that the force “may” result in serious injury or death if implemented. It’s called a ‘deterrence’. The person’s state of mind in these instances is not relevant as their intent will always be “to stop” the other person. Not to kill or murder or severely injure or any such thing, but TO STOP the offender.

    Attorney: Officer did you intend to kill Johnny Dirtbag?

    Officer: No, I intended to stop the threat. I put two rounds center mass of the threat, quickly scanned the area for other threats, and then put two more shots center mass of the threat because it was still standing and a threat. This continued until the threat was no longer a threat.

    Of course, you don’t have to testify to anything because the burden of any proof that the offender wasn’t trying to kill or severely injure YOU is on the prosecution by law.

    And under the Castle Doctrine, whether moving or not, the burden lies on the prosecution to prove that the offender did not intend to kill or severely injure the other party, the victim. The victim need not prove anything. Eventually the thugs will learn that they need to keep out of other people’s business or face the consequences. Either the pain will stop the thugs or the attrition rate. Of course lawyers will experience a loss of wages through the same pain or attrition (death) rate. But then again lawyers have no reasonable expectation of having any clients in the first place.


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