Self-Defense and Retreat from Places Where the Defendant Has a “Lawful Right to Be”

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Our appellate courts are beginning to issue decisions concerning the impact of the General Assembly’s 2011 changes to North Carolina law on self-defense. A case earlier this summer addressed whether a defendant has a duty to retreat before using deadly force in self-defense in a place where he or she has a “lawful right to be.” See State v. Bass, ___ N.C. App. ___, 802 S.E.2d 477, temp. stay and rev. granted, ___ N.C. ___, 800 S.E.2d 421 (2017). In Bass, the Court of Appeals held that the defendant did not have a duty to retreat and further had the right to have the jury instructed that he did not have a duty to retreat.

Defendant’s evidence. The case concerned an ongoing conflict between the defendant, Bass, and the alleged victim, Fogg, which resulted in Bass shooting Fogg. Bass was charged with attempted murder and assault with a deadly weapon with intent to kill inflicting serious injury. The jury convicted him of assault with a deadly weapon inflicting serious injury.

In determining whether a defendant is entitled to instructions on self-defense and other defenses, the court must consider the evidence in the light most favorable to the defendant. In this case, Bass’s evidence showed that ten days before the shooting, Fogg assaulted him and broke his jaw in three places, requiring surgery, placement of screws in his jaw, and wiring of his jaw shut. Fogg was 240 pounds, Bass was 165 pounds. This incident was captured on video on Fogg’s cellphone. Bass, slip op. at 2–3.

Bass’s evidence showed that on the day of the shooting, July 3, he was watching fireworks with friends at the apartment complex where he lived. He was standing on the sidewalk at the complex when he saw a car pull into the parking lot, with Fogg in the passenger seat. In an effort to avoid Fogg, Bass walked to the breezeway of another building in the apartment complex, “praying and hoping” that Fogg would not approach him, but Fogg did. Fogg began speaking aggressively to Bass, who observed that Fogg was carrying a large knife in a sheath attached to his belt. The knife, which was in the record on appeal, resembled a short machete with a wide, curved blade approximately ten inches long. Fearing that Fogg was going to beat him up or cut him and not wanting to be trapped in the breezeway, Bass moved to a grassy area outside the breezeway. After Fogg demanded that Bass get “on the concrete,” Bass pulled out a gun and pointed it at Fogg, hoping to scare him into leaving. Fogg said “oh . . . you wanna shoot me?” and approached Bass while reaching for his knife. Bass testified that he then shot Fogg because he was “scared for [his] life.” Slip op. at 3–5.

Jury instructions and deliberations. The trial judge instructed the jury on the defendant’s right to use deadly force in self-defense when the defendant reasonably believes that the force is necessary to protect the defendant from imminent death or great bodily harm. The trial judge used North Carolina Pattern Jury Instruction (“N.C.P.I.”) 308.45 to convey these principles.

The defendant further requested that the trial judge instruct the jury that he did not have a duty to retreat because he was in a place where he had a “lawful right to be.” The pattern jury instruction includes such a statement, providing that “the defendant has no duty to retreat in a place where the defendant has a lawful right to be.” N.C.P.I. 308.45. The trial judge declined to include this part of the instruction because the defendant was not within the curtilage of his home when he shot Fogg. Slip op. at 9–11.

During deliberations, the jury sent a note to the judge asking for “further explanation on NC law with regard to ‘duty to retreat.’” The judge instructed the jury that “by North Carolina statute, a person has no duty to retreat in one’s home, one’s own premises, one’s place of residence, one’s workplace, or one’s motor vehicle. This law does not apply in this case.” Slip op. at 12.

Majority applies statutory language. A majority of the Court of Appeals found that the trial judge erred in his initial instruction by omitting the statement that the defendant did not have a duty to retreat and erred in his supplemental instruction by advising the jury that the principle did not apply in this case. The Court of Appeals recognized that North Carolina’s self-defense statutes address two different situations: defensive force in a person’s home, workplace, or vehicle under G.S. 14-51.2; and defense of oneself and others under G.S. 14-51.3.

The first statute, sometimes referred to as the castle doctrine, creates a rebuttable presumption that the defendant has a reasonable fear of death or great bodily injury when an intruder forcibly and unlawfully enters the premises, and it provides that the defendant does not have a duty to retreat. Under the second statute, the presumption does not apply; a defendant who uses deadly force must produce evidence that he or she had a reasonable fear of death or great bodily injury. The second statute still provides, however, that a person does not have a duty to retreat in a place where he or she has a “lawful right to be.”

Because both statutes recognize that a defendant does not have a duty to retreat, the majority found it unnecessary to determine whether the defendant was in the curtilage of his home. The majority observed that a defendant has a lawful right to be in a public place, including the common area of the apartment complex where Fogg approached Bass. Therefore, Bass did not have a duty to retreat before acting in self-defense and the jury should have been so instructed. Sl. op. at 14–15, 23.

Dissent finds earlier decision controlling but agrees with majority’s no duty to retreat analysis. The dissent believed that the court was bound by its earlier decision in State v. Lee, ___ N.C. App. ___, 789 S.E.2d 679 (2016), rev. granted, ___ N.C. ___, 796 S.E.2d 790 (2017). There, the trial judge failed to instruct the jury that the defendant did not have a duty to retreat in a place he had a lawful right to be—in that case, a public street near his home. The court in Lee acknowledged that the defendant may not have had a duty to retreat before acting in self-defense, recognizing that G.S. 14-51.3 provides that “’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 the lawful right to be . . . .’” 789 S.E.2d at 686 (quoting G.S. 14-51.3). But, the court found that to the extent the statute applies to any public place, the trial judge’s failure to instruct on the principle did not warrant a new trial. Id. at 686–87.

The majority in Bass found that the circumstances in Lee were distinguishable and did not control the outcome in Bass. The dissent in Bass believed that Lee was not distinguishable, but her opinion indicates that she agreed with the majority’s analysis of the law on retreat in North Carolina. The dissent recognized that a defendant does not have a duty to retreat in a place where he or she has a lawful right to be. The dissent based this conclusion on both the statutory provisions and common law. Slip. Op. at 4 (Bryant, J., dissenting). The dissent also found that the trial judge in Bass should have instructed the jury that the defendant did not have a duty to retreat, stating “candidly, I tend to agree with the majority’s opinion that a new trial is necessary . . . .” Id. at 1. Likewise, the dissent found that the trial judge in Lee should have instructed the jury on this principle, stating that “it would seem that basic rules of statutory construction indicate that a no duty to retreat instruction should have been given.” Id. at 6. The dissenting judge ended by expressing her “reluctant[] dissent” from the majority’s decision that the trial judge’s instructions to the jury warranted a new trial. Id. at 13. She noted that should the North Carolina Supreme Court reverse Lee—review is pending in both Lee and Bass—her dissent on that portion of the majority’s opinion in Bass would be moot. Id. at 13 n.6.

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