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State v. Fitts

Court of Appeals of North Carolina

August 1, 2017


          Heard in the Court of Appeals 19 April 2017.

         Appeal by defendant from judgment entered 7 October 2015 by Judge Donald W. Stephens in Wake County No. 14 CRS 212039 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General I. Faison Hicks, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt Orsbon, for defendant-appellant.

          MURPHY, Judge.

         Rashand Nicholas Fitts ("Defendant") was convicted of felony murder, the underlying felony being discharging a firearm into an occupied vehicle. On appeal, he contends the trial court improperly refused to instruct the jury on self-defense despite there being evidence from which a jury could reasonably conclude that he acted in perfect self-defense. After careful review, we conclude the trial court did not err in declining to instruct on self-defense.


         On 24 May 2014, Defendant rode with his cousin, Archie Huff ("Huff"), in Huff's Tahoe SUV ("Tahoe") to a nearby service station. Huff went into the convenience store, leaving his handgun in a holster on the console, while Defendant waited in the Tahoe. When Huff attempted to make a purchase, he realized he had left his wallet at home. Defendant and Huff then left to retrieve the wallet.

         While Defendant and Huff were gone, Travis Rhodes ("Rhodes"), Donte Alston ("Alston"), Devonte Tillery ("Tillery"), and Telvin arrived at the service station to sell liquid Phencyclidine ("PCP") in the service station's parking lot. Alston and Telvin rode in Alston's Chrysler sedan, while Rhodes and Tillery arrived in a black Mustang. The four were sitting together in Alston's sedan, socializing and smoking PCP, when Defendant and Huff returned to the service station.

         Huff again entered the store, while Defendant remained outside. Rhodes and Tillery got out of Alston's sedan and approached Defendant. Defendant rolled down the window and Rhodes offered to sell him "high grade marijuana." Defendant responded that he already had some marijuana, but asked to see Rhodes' selection and said he would take Rhodes' cell phone number in case he needed to buy from Rhodes in the future.

         Rhodes and Tillery returned to the Mustang with Rhodes in the driver's seat and Tillery in the passenger seat. Defendant exited the Tahoe with Huff's gun in his back pocket, and walked over to the Mustang. Defendant took Huff's gun with him because Huff asked Defendant not to leave it on the console if he left the car. Defendant looked at Rhodes' marijuana and told Rhodes that when Huff came out of the store he would use Huff's phone to get Rhodes' phone number. In response, Rhodes complained: "Man . . . you doing all this like you want to buy some weed, and you don't want to buy no weed, " then drove off.

         Defendant found Rhodes' behavior strange and returned to the Tahoe. Huff returned from the store and noticed Defendant appeared "concerned, " but did not inquire further. Huff pulled out of the service station, driving north on Capital Boulevard toward the Starmount shopping center intersection. The north-bound side of the intersection has three lanes running straight through it and one left-turn lane. As Defendant and Huff approached the light, the Mustang stopped in the second straight lane from the left. Huff pulled into the leftmost lane at Defendant's direction and the Tahoe stopped parallel to the Mustang.

         The events at the stoplight are disputed by Defendant and the State. For purposes of our inquiry, Defendant maintains as follows. As the Tahoe pulled alongside the Mustang, Defendant heard Rhodes shout: "what's up with y'all niggers? What you think, this is a game?" Rhodes then demanded Tillery "pass [him] the motherfucking gun." Tillery reached towards the back seat with both hands, while Rhodes left one hand on the steering wheel and reached into the back seat with his other hand.

         Observing Rhodes and Tillery, Defendant "was scared" and "thought they [were] going to shoot in the [Tahoe.]" In response, Defendant grabbed Huff's gun from the console and opened the Tahoe's passenger door. He stepped out of the Tahoe, started to move away from the Mustang, then reached across his body to fire once at Rhodes, as he looked in the opposite direction. Defendant explained that he fired the gun "so [Rhodes would not] shoot me or Archie." Defendant returned to the Tahoe, and Huff drove away, through the intersection.

         The bullet hit Rhodes in the torso, causing him to crash the Mustang into another car before jumping the median and striking a sign on the far side of the southbound lane. Tillery exited the Mustang. An off-duty police officer saw the crash, radioed dispatch, and approached the car to investigate. He found Rhodes unconscious. When on-duty law enforcement officers arrived and searched the Mustang, they found three cell phones and three grams of marijuana. No weapons, ...

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