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State v. Bass

Court of Appeals of North Carolina

June 6, 2017

STATE OF NORTH CAROLINA
v.
JUSTIN DEANDRE BASS

          Heard in the Court of Appeals 4 October 2016.

         Appeal by defendant from judgment entered 19 December 2014 by Judge Paul C. Ridgeway in Wake County Superior Court Wake County, No. 14CRS21583.

          Attorney General Roy Cooper, by Special Deputy Attorney General Harriet F. Worley, for the State.

          Lisa Miles for defendant-appellant.

          TYSON, Judge.

         Justin Deandre Bass ("Defendant") appeals from his jury conviction of assault with a deadly weapon inflicting serious injury. We find reversible errors in the trial and grant Defendant a new trial.

         I. Background

         A. Previous Altercation

         1. Fogg's Version

         Defendant and Jerome Fogg engaged in an altercation on the evening of 23 June 2014, at the Bay Tree Apartments in Raleigh, where Defendant lived with his mother. Fogg claimed Defendant had kept "running his mouth, " looking at Fogg, who weighed 240 pounds at the time, and saying "that big s**t don't matter." According to Fogg, Defendant claimed to a member of the Piru gang, as was Fogg, but Defendant was unable to replicate the gang's handshake.

         Fogg testified Defendant continued to be "disrespectful to [Fogg]." Fogg told him to stop talking, at which point Defendant "pulled his pants up, had his hands up." Fogg believed this action meant Defendant was going to hit him or was getting ready to fight. Fogg threw the first punch and hit Defendant several times.

         2. Defendant's Version

         Defendant also testified about the 23 June 2014 altercation. He testified Fogg approached and asked whether Defendant knew the Piru handshake. Fogg became aggressive and left when Defendant told him that he did not know the handshake. Fogg returned and was "ready to do that handshake." Fogg began punching Defendant repeatedly, after Defendant did not perform the handshake to Fogg's satisfaction.

         A video of this assault was recorded on Fogg's cellphone, and was played for the jury. Fogg first punched Defendant in the nose. Fogg then dealt a blow to Defendant's left jaw from behind, which knocked Defendant to the ground. Defendant stood and tried to walk away. Fogg dealt a third blow to Defendant's right jaw, which caused Defendant, who weighed 165 pounds, to "fly through the air and roll." The video shows Defendant walking in circles with Fogg following behind him. Defendant did not swing at Fogg or say anything to provoke him. Fogg broke Defendant's jaw in three places, which required surgery and the placement of screws to repair. Defendant's jaw was wired shut.

         Defendant did not contact police after this incident because he was afraid Fogg would return and beat him again. He testified he began carrying a 9mm handgun out of fear of further bodily injury or death by Fogg.

         B. Defendant Shoots Fogg

         1. Fogg's Version

         Fogg testified he encountered Defendant at the Bay Tree apartment complex two weeks after the first altercation, on 3 July 2014. Fogg testified Defendant stated to Fogg, "he was going to pop [Fogg's] motherf***ing ass." Defendant was walking away from Fogg, and then stopped and said something else. Fogg could see something in Defendant's pocket, but he "[had never] ran from anyone, " and was "not going to start running." Fogg testified Defendant pulled a gun from his pocket and shot him. Fogg stated, "You shot me motherf***er." Defendant shot Fogg again twice.

         2. Defendant's Version

         Defendant testified he was watching fireworks with friends outside of his home at the Bay Tree apartment complex. His jaw remained wired shut from the beatings and injuries dealt by Fogg two weeks earlier. Defendant returned to building 114, where he lived on the second floor with his mother, and stood outside that building with friends for a couple of hours. Defendant was standing on the sidewalk between buildings 114 and 118, when he saw a car pull into the parking lot. He saw Fogg was seated in the passenger's seat. Defendant stated he crossed the street and walked toward building 109 in order to put as much distance as possible between Fogg and himself. Defendant remained in the breezeway of building 109, pacing back and forth and "praying and hoping" that Fogg would not approach him.

         Defendant saw Fogg speaking with a group of people at building 110. Fogg then began walking towards Defendant. Fogg approached Defendant in an aggressive manner, and stated, "I heard you been talking junk . . . I hope you enjoy drinking the Ensure for six weeks." Defendant observed Fogg carrying a "large knife with a big handle" in a sheath attached to his pants. Defendant believed Fogg "either was going [t]o beat me up or try to cut me with the knife."

         Defendant moved to the grassy area outside the breezeway because he did not want to get trapped with Fogg inside the breezeway. Fogg stated, "I said get on the concrete." Defendant did not move. Fogg questioned, "oh you ain't going to move?" Defendant pulled his gun and pointed it at Fogg. He testified he intended to scare Fogg and hoped he would leave. Fogg stated, "oh . . . you wanna shoot me?" Fogg approached Defendant, while reaching for his knife. Defendant shot Fogg, panicked, and ran. Defendant testified he shot Fogg because he was "scared for [his] life."

         The large knife Fogg carried that evening is included in the record on appeal. It resembles a short machete, with a wide and curved blade that is approximately ten inches long. The knife was found in its sheath located on Fogg's hip when a police officer arrived to assist Fogg.

         After shooting Fogg, Defendant ran from the apartment complex and left town for Virginia for two weeks. Defendant was arrested upon his return home.

         Dr. Matthew Alleman, a general surgeon who treated Fogg at the hospital, was initially concerned that Fogg might die due to the severity of his injuries. Fogg underwent multiple surgeries. He remained in the intensive care unit for approximately a month and spent an additional one or two weeks as an inpatient.

         On 24 October 2014, Defendant gave the State notice that he intended to assert self-defense. On 18 November 2014, Defendant was indicted in a superseding indictment for attempted murder and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant's trial commenced on 10 December 2014.

         On 19 December 2014, the jury found Defendant was not guilty of attempted first-degree murder or assault with a deadly weapon with intent to kill inflicting serious injury, but found Defendant was guilty of assault with a deadly weapon inflicting serious injury. Defendant was sentenced to a minimum term of thirty months and a maximum term of forty-eight months in prison. Defendant appeals.

         II. Jurisdiction

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2015).

         III. Issues

         Defendant argues the trial court erred by: (1) failing to instruct the jury that Defendant had no duty to retreat before using deadly force in self-defense, and committed further error by instructing the jury that the law pertaining to whether Defendant had a duty to retreat "does not apply to this case;" (2) sustaining the State's objections to evidence of specific acts of violence committed by Fogg upon other individuals; and (3) denying Defendant's motion to continue prior to the start of trial.

         IV. Jury Instructions

         Defendant argues the trial court erred failing to instruct the jury that he had no duty to retreat before using deadly force in self-defense, and later instructing the jury that the law pertaining to whether Defendant had no duty to retreat "does not apply to this case." We agree.

         A. Standard of Review

          The question of whether a trial court erred in instructing the jury is a question of law reviewed de novo. State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009).

         B. Statutory Circumstances which Justify Use of Deadly Force

         "Our courts have recognized that a defendant may use either deadly force or nondeadly force to defend himself, depending on the circumstances of each case." State v. Whetstone, 212 N.C.App. 551, 558, 711 S.E.2d 778, 783 (2011). "Deadly force is 'force intended or likely to cause death or great bodily harm[, ]' and nondeadly force is 'force neither intended nor likely to do so[.]'" Id. (quoting State v. Pearson, 288 N.C. 34, 39, 215 S.E.2d 598, 602 (1975)). Defendant does not dispute he used deadly force against Fogg.

         Our statutes set forth the two circumstances in which a person is justified in using deadly force to be excused from criminal liability. N.C. Gen. Stat. § 14-51.3 is titled, "Use of force in defense of person; relief from criminal or civil liability, " and provides:

(a) . . . [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 if either of the following applies:
(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.
(2) Under the circumstances permitted pursuant to G.S. 14-51.2.

N.C. Gen. Stat. § 14-51.3(a) (2015) (emphasis supplied).

          N.C. Gen. Stat. § 14-51.2 provides:

(b) The lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or serious bodily harm to another if both of the following apply:
(1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person's will from the home, motor vehicle, or workplace.
(2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
. . . .
(f) A lawful occupant within his or her home, motor vehicle, or workplace does not have a duty to retreat from an intruder in the circumstances described in this section.

N.C. Gen. Stat. § 14-51.2(b) and (f) (2015) (emphasis supplied).

         A person who claims self-defense clearly does not have a duty to retreat under either of the two circumstances set forth in § 14-51.3(a)(1) or § 14-51.2(b). In both circumstances, the person who uses defensive deadly force must have held a reasonable belief that the force used was necessary to prevent imminent death or great bodily harm to himself or another.

         The pertinent distinction between the two statutes is that a rebuttable presumption arises that the lawful occupant of a home, motor vehicle, or workplace holds a reasonable fear of imminent death or serious bodily harm to himself or another when using defensive force at those locations under the circumstances set forth in N.C. Gen. Stat. § 14-51.2(b). Id. This rebuttable presumption does not arise in N.C. Gen. Stat. § 14-51.3(a)(1).

         C. Charge Conference and Preservation of Error

         At the charge conference with counsel, the trial court listed the pattern jury instructions the court intended to give the jury. Included in this list was North Carolina Pattern Jury Instruction (" N.C. P.I.") 308.45. That instruction states, in pertinent part:

If the State has satisfied you beyond a reasonable doubt that the defendant assaulted the victim with deadly force (insert other lesser included assault offenses), then you would consider whether the defendant's actions are excused and the defendant is not guilty because the defendant acted in self-defense. The State has the burden of proving from the evidence beyond a reasonable doubt that the defendant's action was not in self-defense.
If the circumstances would have created a reasonable belief in the mind of a person of ordinary firmness that the assault was necessary or appeared to be necessary to protect that person from imminent death or great bodily harm, and the circumstances did create such belief in the defendant's mind at the time the defendant acted, such assault would be justified by self-defense. You, the jury, determine the reasonableness of the defendant's belief from the circumstances appearing to the defendant at the time. Furthermore, the defendant has no duty to retreat in a place where the defendant has a lawful right to be. (The defendant would have a lawful right to be in the defendant's [home] [own premises] [place of residence] [workplace] [motor vehicle].)
NOTE WELL: The preceding parenthetical should only be given where the place involved was the defendant's [home] [own premises] [place of residence] [workplace] [motor vehicle].

N.C. P.I. Crim. 308.45 (2016) (emphases supplied).

          N.C. P.I. 308.45 encompasses both of the circumstances set forth in N.C. Gen. Stat. § 14-51.3(a), where the defendant is justified in using deadly force and has no duty to retreat. N.C. P.I. 308.45 contains a separate "Note Well" instruction, which directs the trial court to use N.C. P.I. 308.80 ("Defense of Habitation"), if the assault occurred in the defendant's home, workplace or motor vehicle under N.C. Gen. Stat. § 14-51.2(b). N.C. P.I. 308.80 sets forth the statutory and rebuttable presumption that the lawful occupant of a home, motor vehicle, or workplace holds a reasonable fear of imminent death or serious bodily harm to himself or another when using defensive force at any of those listed places. N.C. P.I. Crim. 308.80 (2016); see N.C. Gen. Stat. § 14-51.2(b).

         Defense counsel later requested the court "add the language from the pattern 308.45 which reads furthermore, the Defendant has no duty to retreat in a place where the Defendant has a lawful right to be. And the Defendant would have a lawful right to be in his place of residence." Counsel then argues whether Defendant was standing within the curtilage of his home when he shot Fogg. The trial court determined Defendant was not within the curtilage of his home, and told defense counsel, "I will not include that sentence that you asked for. I don't think that it applies in this case."

         The trial court instructed the jury:

If the State has satisfied you beyond a reasonable doubt that the Defendant assaulted the victim with deadly force, then you would consider whether the Defendant's actions are excused and the Defendant is not guilty because the Defendant acted in self defense. The State has the burden of proving from the evidence beyond a reasonable doubt that the Defendant's action was not in self defense.
If the circumstances would have created a reasonable belief in the mind of a person of ordinary firmness that the assault was necessary or appeared to be necessary to protect that person from imminent death or great bodily harm, and the circumstances did create such a belief in the Defendant's mind at the time the Defendant acted, such an assault would be justified by self defense. You, the jury, determine the ...

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