in the Court of Appeals 19 April 2017.
by defendant from judgment entered 7 October 2015 by Judge
Donald W. Stephens in Wake County No. 14 CRS 212039 Superior
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.
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.
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
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
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.
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
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.
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.
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.
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