Back in May, a divided Court of Appeals affirmed the trial court’s ruling that the defendant was not entitled to a jury instruction on entrapment in an online solicitation of a minor case. Entrapment isn’t exactly a common defense (as Jeff noted here). When it comes up, it’s often in drug cases, but it can also arise in computer solicitation cases where law enforcement officers pretend to be underage. State v. Keller, ___ N.C. App. ___, 828 S.E.2d 578 (May 21, 2019), review allowed, ___ N.C. ___ (August 14, 2019), is an example of such a case and appears to be the second reported decision dealing directly with the defense in this context, so I wanted to flag it for readers. Fair warning, this post recounts some of the sexually graphic discussions at issue in the case. Continue reading
Tag Archives: defenses
Trapped but not Entrapped? State v. Keller
In February 1843, Daniel M’Naughten was tried in London for the murder of Edward Drummond, the private secretary to Prime Minister Robert Peel. M’Naughten was laboring under the delusion that Prime Minister Peel was part of a system that was persecuting him. Only by shooting Peel could he end the torment. Drummond became the victim of these delusions when M’Naughten mistook him for Peel. The trial of M’Naughten, the verdict of insanity, and the aftermath made legal history. Continue reading →
Defense Counsel Can’t Present an Insanity Defense without the Defendant’s Consent
The court of appeals recently addressed an issue that has divided courts elsewhere: whether defense counsel may present an insanity defense without the defendant’s consent. The court ruled that defense counsel may not do so, stating that “because the decision of whether to plead not guilty by reason of insanity is part of the decision of what plea to enter, the right to make that decision is a substantial right belonging to the defendant.” Continue reading →
A Warning Shot about Self-Defense
Suppose John is facing a deadly assault and fears that he will be killed or suffer great bodily harm. John has a firearm but, rather than shoot his assailant, he fires a warning shot. The shot goes awry, strikes John’s assailant, and kills him. May John rely on self-defense if charged with murder? The answer may be surprising. Continue reading →
I am working on a new edition of the self-defense book I wrote in 1996. As in the story of Rip Van Winkle, a lot has changed in twenty years. Most notably, the General Assembly adopted new statutes in 2011 on self-defense and related defenses. This blog post addresses one of those provisions, in G.S. 14-51.4, which disqualifies a person from relying on self-defense while committing, attempting to commit, or escaping from the commission of a felony. North Carolina appellate courts have not yet considered the meaning of this provision. Cf. State v. Rawlings, ___ N.C. App. ___, 762 S.E.2d 909 (2014) (felony disqualification did not apply to case in which defendant’s offense predated enactment of provision, and court expressed no opinion on proper construction of provision). Continue reading →
Diminished capacity is among the most commonly asserted defenses, particularly in first-degree murder cases, but I realized yesterday that I had never blogged about it. Today, I will remedy that. Here’s what you need to know.
Generally, negates specific intent. Diminished capacity, first recognized in the case of State v. Shank, 322 N.C. 243 (1988), negates specific intent, typically on the basis that the defendant was severely intoxicated and/or suffered from some mental defect that rendered him unable to form the requisite intent. In a first-degree murder case, it negates the specific intent to kill that is required to establish premeditated murder. See, e.g., State v. McDowell, __ N.C. App. __, 715 S.E.2d 602 (2011) (“The diminished capacity defense to first-degree murder on the basis of premeditation and deliberation requires proof of an inability to form the specific intent to kill.”). But it may be used in non-homicide cases as well. For example:
- It may negate the specific intent required to commit the offense of taking indecent liberties with a child. State v. Connell, 127 N.C. App. 685 (1997) (finding plain error in trial court’s failure to instruct on diminished capacity).
- It may negate the specific intent to kill that is an element of AWDWIKISI. State v. Williams, 116 N.C. App. 225 (1994) (“The defense of diminished capacity applies to the element of specific intent to kill which is an essential element of assault with a deadly weapon with intent to kill inflicting serious injury.”).
- It may negate the intent to commit larceny or a felony that is an element of burglary. Cf. State v. Gay, 334 N.C. 467 (1993) (apparently concluding that diminished capacity may be a defense to burglary, but finding no error in trial court’s failure to instruct on it in this particular case).
No defense to general intent crimes. Diminished capacity isn’t a defense to general intent crimes, because there is no specific intent to negate in such cases. See, e.g., State v. Page, 346 N.C. 689 (1997) (diminished capacity isn’t a defense to AWDWLEO because it is a general intent crime).
Application to felony murder. In a felony murder case, diminished capacity is a defense only if it is a defense to the underlying felony, i.e., only if the underlying felony is a specific intent crime. Compare State v. Roache, 358 N.C. 243 (2004) (trial judge properly instructed jury on diminished capacity in connection with armed robbery and first-degree burglary, the predicates for felony murder in this case, as each was a specific intent felony), with State v. Carroll, 356 N.C. 526 (2002) (approving of instruction that “[t]he law does not require any specific intent to kill for the defendant to be guilty of the crime of first degree murder on the basis of felony murder or second degree murder” and that therefore “the defendant’s intoxication or drug condition can have no bearing upon your determination of his guilt or innocence of these crimes”), and State v. Daughtry, 340 N.C. 488 (1995) (trial judge did not err in failing to instruct on diminished capacity in connection with first-degree sexual offense, as “[f]irst-degree sexual offense is not a specific-intent crime; the intent to commit the crime is inferred from the commission of the act”; submission of felony murder based on first-degree sexual offense was therefore also proper).
Pretrial notice. If the State provides discovery to the defense, “the court must, upon motion of the State, order the defendant to . . . [g]ive notice to the State of the intent to offer at trial a defense of . . . diminished capacity . . . Notice of defense must be given within 20 working days after the date the case is set for trial pursuant to G.S. 7A-49, or such other later time as set by the court.” If the defendant fails to provide the required notice, the trial judge has the discretion to impose reasonable sanctions, including, in a proper case, barring the defendant from asserting the defense. State v. McDonald, 191 N.C. App. 782 (2008).
Burdens. When a defendant claims diminished capacity, he has the burden of production, i.e., the burden of coming forward with evidence of diminished capacity. If he does so, he will be entitled to a jury instruction on the defense. However, the ultimate burden of proving the defendant’s specific intent always remains with the State. State v. Shareef, __ N.C. App. __, 727 S.E.2d 387 (2012) (citing State v. Mash, 323 N.C. 339 (1988)).
Evidence. Defendants who assert diminished capacity often present expert testimony in support of the defense, but such testimony likely is not required if other evidence is sufficient to raise genuine questions about the defendant’s capacity. Cf. State v. Hunt, __ N.C. __, 722 S.E.2d 484 (2012) (ruling that “expert testimony is not necessarily required to establish the extent of a victim’s mental capacity to consent to sexual acts”); State v. Cummings, 329 N.C. 249 (1991) (expert testimony not required to submit capital mitigating circumstance of impaired capacity; evidence from the defendant and his family was sufficient); State v. Mayhand, 298 N.C. 418 (1979) (lay witness may testify on the issue of the defendant’s sanity).
State’s right to examination. At least when the defendant intends to present expert testimony in support of a defense of diminished capacity, the State is entitled to have a mental health expert examine the defendant. State v. Clark, 128 N.C. App. 87 (1997).
Jury instructions. There is a pattern jury instruction for diminished capacity, but it is specific to first-degree murder cases. See N.C.P.I. – Crim. 305.11. There is also a pattern jury instruction for voluntary intoxication that addresses the defendant’s ability to form specific intent. See N.C.P.I. – Crim. 305.10. Either of the instructions could be adapted to instruct the jury about diminished capacity generally in a trial for an offense other than first-degree murder.
Distinct from capital mitigating factor. Under G.S. 15A-2000(f)(6), it is a mitigating circumstance in a capital murder case if “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.” This is distinct from the diminished capacity defense.
Further reading. My colleague John Rubin wrote a paper on diminished capacity in 1992 that may still be of interest.
The New Law of Self Defense?
[Editor’s note: John is the author of The Law of Self-Defense in North Carolina, an in-depth analysis of North Carolina’s approach to the use of defensive force. It’s available for purchase here.]
North Carolina law recognizes various circumstances in which a person may lawfully use force against the threat of harm. Through decades of decisions, the North Carolina appellate courts have recognized the right to defend oneself, other people, and one’s home and property, among other interests, and have developed rules on when those rights apply and amount to a defense to criminal charges. New G.S. 14-51.2, 14-51.3, and 14-51.4 address several of the circumstances in which a person may use defensive force. The statutes restate the law in some respects and broaden it in others. The courts will have to examine their procedures closely to give effect to the new statutory language. The new statutes are part of S.L. 2011-268 (H 650), which applies to offenses committed on or after December 1, 2011. (That legislation also revised several other statutes to expand the right to own, possess, and carry a gun, which Jeff discussed in a previous post.)
For example, the new defensive-force statutes recognize the right to use deadly force against a forcible, unlawful intrusion into a motor vehicle. The courts therefore will need to develop new jury instructions to reflect this right. If faced with such a threat, a person often would have the right to use deadly force under existing doctrines as well—namely, the right to defend oneself and any other vehicle occupants and to prevent the commission of a dangerous felony. A person would have the right to raise these defenses and have the jury instructed on them, in addition to the new defense of motor vehicle, in light of the general principle that a person may rely on multiple defenses that arise from the evidence and on the statement in new G.S. 14-51.2(g) that the statute “is not intended to repeal or limit any other defense that may exist under the common law.”
To take another example, the courts will have to incorporate into their procedures the new statutory presumption of lawfulness, applicable to the use of deadly force against a forcible intrusion into a home, motor vehicle, or workplace. The law has allowed a person to use deadly force against such intrusions, but the courts will have to consider the new presumption in evaluating whether the State has offered sufficient evidence to withstand a motion to dismiss by the defendant and, in cases that go to the jury, will have to give appropriate instructions explaining the presumption. The following summary highlights the key provisions of the new statutes; it does not attempt to address all of the issues the courts will need to consider.
New G.S. 14-51.2 modifies defense of habitation, called defense of home in the statute; explicitly recognizes a comparable defense for the workplace; and adopts a new defense involving motor vehicles. All involve defending against forcible intrusions into those areas under the circumstances described in the statute. Most important, the statute creates a presumption of lawfulness in the sense that if a lawful occupant of a home, motor vehicle, or workplace uses deadly force against an intruder and meets the other conditions in the statute, the occupant is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself, herself, or another. The statute states that the new presumption is rebuttable and does not apply in five detailed instances, as when “the person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.” The act repeals G.S. 14-51.1, which modified the common law version of defense of home to allow deadly force to terminate as well as prevent entry by an intruder. Repealed G.S. 14-51.1 also stated that a person has no duty to retreat from an intruder into the home. New G.S. 14-51.2 restates these principles for defense of home, motor vehicle, and workplace cases.
New G.S. 14-51.3 addresses the right to use deadly and nondeadly force to defend oneself and others. The statute appears to track the courts’ approach to these rights in most respects, but it may introduce new principles or at least clarify existing ones. For example, the statute states that a person is justified in using deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself, herself, or others. The statute does not limit this principle to cases involving a home, motor vehicle, or workplace. Under current law, a person has no duty to retreat in comparable circumstances (that is, when a person is faced with a felonious assault), but the statute’s express statement of the principle may require the court to instruct the jury about it in all cases.
New G.S. 14-51.4 describes the circumstances in which a person is not entitled to rely on the defenses in new G.S. 14-51.2 and G.S. 14-51.3—for example, when a person is the aggressor by initially provoking the use of force against himself or herself. Again, these circumstances are similar in many respects to those recognized under current law, but differences exist, requiring close comparison of the statute to existing doctrines.
Over the next few weeks I will be working on a longer bulletin about the implications of the new statutes for defensive force cases. If you have any thoughts about the changes, please let me know.
The Court of Appeals released several criminal law opinions yesterday. One that caught my eye was State v. Merrell, __ N.C. App. __ (2011). In a nutshell, the defendant was an alcoholic who lived with his sister and her family. He began sexually abusing his niece, in a variety of ways, when she was nine. He was convicted of attempted first-degree statutory rape and five counts of indecent liberties. Although he did not request a jury instruction on voluntary intoxication, he argued on appeal that the trial judge committed plain error by failing to give one. The court of appeals rejected this argument.
It began by noting that both rape and indecent liberties are specific intent crimes, and that “[w]here a crime requires a showing of specific intent, voluntary intoxication may be a defense to the criminal charge.” [Update: after conducting some further research, I think it is more accurate to say that attempted rape — the offense at issue in Merrell — is a specific intent crime to which voluntary intoxication may be a defense. Merrell sometimes uses language that includes the completed offense as well, but the state supreme court ruled in State v. Boone, 307 N.C. 198 (1982), that voluntary intoxication is not a defense to the completed crime, and in State v. Jones, 353 N.C. 159 (2000), the court stated that completed rape is a general intent crime. The distinction between specific intent and general intent is elusive and frequently criticized by commentators, but as it pertains to the specific issue of voluntary intoxication as a defense, Boone seems to be conclusive.] Yet it also quoted State v. Bunn, 283 N.C. 444 (1973), for the proposition that “voluntary drunkenness is not a legal excuse for crime.” How can these two statements be reconciled? Well, as my colleague John Rubin explained in his paper on the voluntary intoxication defense, voluntary intoxication is not, in itself, a defense or an excuse. Rather, it is a “negating” defense, in the sense that if a defendant’s voluntary intoxication is so severe that he is unable to form the requisite criminal intent, then the state may be unable to establish the defendant’s guilt. John Rubin, The Voluntary Intoxication Defense, Administration of Justice Memorandum 93/01 (1993) (available here). Voluntary intoxication is similar in some respects to the defense of automatism, about which I blogged here.
So voluntary intoxication was at least a possible defense in Merrell. However, the court stated that an instruction on voluntary intoxication is warranted only when it “appear[s] that [the] defendant was not able, by reason of drunkenness, to think out beforehand what he intended to do and to weigh it and understand the nature and consequence of his act.” In the case at bar, the evidence showed that the defendant “made careful plans to be alone with the child, and in at least one instance, tricked her into coming out of her room after she had locked herself away from him.” Thus, no instruction was required, and the trial court’s failure to give one was not error. In an important aside, the court stated that whether the defendant was able to remember his crimes later was immaterial.
Just as an informational point, there’s a pattern jury instruction on voluntary intoxication, N.C.P.I. – Crim. 305.11, and a separate one, N.C.P.I. – Crim. 305.11, for use first-degree murder cases. They’re consistent with the “negating defense” discussion above.
Finally, as a personal aside, I’ll admit to a little discomfort with the whole idea of voluntary intoxication as a defense. Perhaps the disturbing facts of Merrell are weighing on me, or perhaps some part of me is stuck in the nineteenth century, when the courts “recoiled at the notion that drunkenness could reduce a defendant’s criminal liability.” Rubin, supra. My reservations appear not to be widely shared: while states are free to reject the voluntary intoxication defense, i.e., there is no due process right to present such a defense, Montana v. Egelhoff, 518 U.S. 37 (1996), today only a “handful of states,” apparently including Texas and South Carolina, reject the defense altogether, Chad J. Layton, Comment, No More Excuses: Closing the Door on the Voluntary Intoxication Defense, 30 J. Marshall L. Rev. 535 (1997). In any event, the defense is well established in North Carolina, as the authorities cited above reveal.
Mistake of Fact: A Negating Defense
When a defendant introduces evidence at trial showing that the State has failed to prove some element of the crime, the strategy is sometimes described as a failure of proof or “negating” defense. Mistake of fact is one such negating defense. Mistake of fact offers a defense if it negates a mental state required to establish an element of the crime. State v. Breathette, ___ N.C. App. ___, 690 S.E.2d 1, 4 (2010). For example, mistake of fact is a defense to larceny if the defendant establishes that he or she took the property under a reasonable but mistaken belief that he or she was the lawful possessor of the property. There are numerous cases on point. One is State v. Lamson, 75 N.C. App. 132, 135-36 (1985), a burglary case in which the court held that the trial court erred by not giving an instruction on mistake of fact when there was evidence that the defendant thought he was entering a house where his friend was visiting. Another is State v. Walker, 35 N.C. App. 182, 186-87 (1978), in which the court held that the trial court erred by not giving an instruction on mistake of fact when the defendant and his son mistakenly abducted a child believed to be the defendant’s granddaughter.
There are, however, limitations on this defense. Most significantly, when the elements of the crime do not require the defendant to know the fact that he or she was mistaken about, mistake of fact is no defense. For example, because a defendant need not know the victim’s age for statutory rape, mistake as to the victim’s age is no defense to this crime. State v. Browning, 177 N.C. App. 487, 492-94 (2006). The same is true for indecent liberties with a child. Breathette, ___ N.C. App. ___, 690 S.E.2d at 4-6. However, mistake of fact can be a defense for some statutory sexual assault charges. For example, if the defendant is charged with aiding and abetting statutory rape, mistake of fact is a defense. This is so because aiding and abetting requires that the defendant knowingly aid the perpetrator in committing the offense. State v. Bowman, 188 N.C. App. 635, 647-50 (2008) (in an aiding and abetting statutory rape case, the trial court erred by failing to instruct as to mistake of fact; North Carolina does not recognize vicarious strict liability). Also, at least one case has held that if the defendant argues that a touching was accidental, mistake of fact may be a defense to a sexual assault on a child. State v. Connell, 127 N.C. App. 685, 690-91 (1997) (in an indecent liberties case in which the State presented only circumstantial evidence that the defendant was awake and intended to touch the child and the defendant’s evidence indicated that he thought he was touching the child’s mother, the trial court should have instructed the jury as to the mistake of fact).
Mistake of fact, which can be a valuable negating defense, should not be confused with mistake of the law. Mistake or ignorance of law, as a general rule, is no excuse. State v. Howard, 158 N.C. App. 226, 233 (2003); State v. Rogers, 68 N.C. App. 358, 385 (1984). Thus, a defendant charged with rape of a 15-year-old will not prevail on the defense that he didn’t know that having sex with a 15-year-old was a crime.