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State v. Miller

Court of Appeals of North Carolina

March 6, 2018

STATE OF NORTH CAROLINA
v.
KENNETH WILLIAM MILLER

          Heard in the Court of Appeals 2 October 2017.

         Appeal by Defendant from judgment entered 8 April 2016 by Judge Michael R. Morgan in Superior Court, Wake County, No. 14 CRS 204947

          Attorney General Joshua H. Stein, by Assistant Attorney General David D. Lennon, for the State.

          Chetson Hiltzheimer, PLLC, by Damon Chetson, for Defendant.

          McGEE, Chief Judge

         I. Brief Factual Background

         Kenneth William Miller ("Defendant") and his wife, Heather Miller ("Heather") drove their golf cart (the "golf cart") from their house (the "house") to a nearby bar called Bones' Place ("Bones") on the evening of 1 March 2014 to hear a band. According to the evidence taken in the light most favorable to Defendant, there was a path between the house and Bones that permitted the drive to be conducted without travelling on any public roadways. At approximately midnight, Heather decided she wanted to leave Bones. Defendant went outside while Heather went to the restroom, and an altercation occurred between Defendant and some men in the Bones parking lot (the "parking lot"). When Heather walked out of Bones and onto the parking lot, she witnessed the altercation. The situation escalated and one of the men drew a handgun and threatened Defendant, causing Defendant and Heather to get into the golf cart, and Defendant then drove away from the parking lot.

         Wake County Sheriff's Deputy Joshua Legan ("Deputy Legan") was on patrol shortly after midnight on 2 March 2014, when he observed the golf cart heading toward him. Deputy Legan testified that the golf cart was being driven without lights and was straddling the center line on Old U.S. Highway 1. Deputy Legan immediately turned around and drove to intercept the golf cart. By the time Deputy Legan activated his lights and caught up to the golf cart, it had turned off of the highway onto a dirt path. Deputy Legan noticed the odor of alcohol emanating from Defendant and that Defendant's speech was slurred and his eyes were "red and bloodshot[.]" Additional deputies arrived at the scene. Defendant was administered tests for impairment and, based upon all the factors Deputy Legan observed, Defendant was arrested for driving while impaired and driving left of the center line.

         Defendant was found guilty of driving while impaired and responsible for driving left of center in district court on 11 June 2015, and he appealed to superior court. Defendant was tried before a jury at the 6 April 2016 session of Wake County Superior Court, and was again found guilty of driving while impaired and responsible for driving left of center. Defendant appeals. Additional relevant facts will be discussed in the analysis portion of this opinion.

         II. Analysis

         In Defendant's sole argument, he contends the trial court erred by refusing to instruct the jury on the defense of necessity when the evidence presented at trial supported giving the instruction. We agree.

         A. Case Law

         The affirmative defense of necessity is available to defendants charged with driving while under the influence ("DWI"). State v. Hudgins, 167 N.C.App. 705, 710606 S.E.2d 443, 447 (2005). As an affirmative defense, "the burden rests upon the defendant to establish this defense, unless it arises out of the State's own evidence, to the satisfaction of the jury." State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975). It is well established:

A trial court must give a requested instruction if it is a correct statement of the law and supported by the evidence. "Any defense raised by the evidence is deemed a substantial feature of the case and requires an instruction." For a particular defense to result in a required instruction, there must be substantial evidence of each element of the defense when viewing the evidence in a light most favorable to the defendant. "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"

State v. Brown, 182 N.C.App. 115, 117-18, 646 S.E.2d 775, 777 (2007) (citations omitted) (emphasis added). However, "'a trial court is not obligated to give a defendant's exact instruction so long as the instruction actually given delivers the substance of the request to the jury.'" State v. Holloman, 369 N.C. 615, 625, 799 S.E.2d 824, 831 (2017) (citations omitted). Further,

a trial judge's jury charge shall "give a clear instruction which applies the law to the evidence in such manner as to assist the jury in understanding the case and in reaching a correct verdict." For that reason, "the judge has the duty to instruct the jury on the law arising from all the evidence presented." In instructing the jury with respect to a defense to a criminal charge, "the facts must be interpreted in the light most favorable to the defendant."

Id. at 625, 799 S.E.2d at 831 (citations omitted) (emphasis added).

         "A defendant must prove three elements to establish the defense of necessity: (1) reasonable action, (2) taken to protect life, limb, or health of a person, and (3) no other acceptable choices available." Hudgins, 167 N.C. App.at 710-11, 606 S.E.2d at 447.

The rationale behind the defense is based upon the public policy that "the law ought to promote the achievement of higher values at the expense of lesser values, and [that] sometimes the greater good for society will be accomplished by violating the literal language of the criminal law." "[I]f the harm which will result from compliance with the law is greater than that which will result from violation of it, [a person] is justified in violating it."

State v. Thomas, 103 N.C.App. 264, 265, 405 S.E.2d 214, 215 (1991) (citations omitted) (alterations in original).

         The question before this Court, which we review de novo, is whether, when viewed in the light most favorable to Defendant, substantial evidence was presented at trial that Defendant took "(1) reasonable action, (2) taken to protect life, limb, or health of a person, and (3) no other acceptable choices [were] available" to Defendant. Hudgins, 167 N.C. App.at 710-11, 606 S.E.2d at 447. Therefore, if the evidence presented at trial, viewed in the light most favorable to Defendant and ignoring all contradictory evidence, was sufficient to permit the jury to reasonably infer the existence of these three elements, the trial court was required to give the instruction on necessity. It would then be the sole province of the jury to determine whether, based upon those facts, Defendant had met his burden of proving necessity to the satisfaction of the jury:

[Our appellate] cases enunciate and reiterate the rule - established in our law for over one hundred years, - that when the burden rests upon an accused to establish an affirmative defense . . . the quantum of proof is to the satisfaction of the jury - not by the greater weight of the evidence nor beyond a reasonable doubt - but simply to the satisfaction of the jury. Even proof by the greater weight of the evidence - a bare preponderance of the proof - may be sufficient to satisfy the jury, and the jury alone determines by what evidence it is satisfied.

State v. Freeman, 275 N.C. 662, 666, 170 S.E.2d 461, 464 (1969) (citations omitted).

         We now address a potential issue that arises from the present appeal. During the charge conference, Defendant requested that the trial court give an instruction on necessity and duress, but specifically requested N.C. P.I. Crim. 310.10, the instruction for "Compulsion, Duress, or Coercion." In North Carolina, there is no pattern jury instruction that expressly addresses the defense of necessity. At the charge conference, both Defendant and the State discussed a recent unpublished opinion of this Court, State v. Badson, 242 N.C.App. 384, 776 S.E.2d 364, 2015 WL 4430202 (2015) (unpublished).[1] In Badson, this Court stated: "Although the defenses of duress and necessity were 'historically distinguished' under common law, '[m]odern cases have tended to blur the distinction[.]' State v. Monroe, 233 N.C.App. 563, 565, 756 S.E.2d 376, 378 (2014). Thus, for purposes of this opinion, the two defenses are discussed interchangeably." Badson, 242 N.C.App. 384, 776 S.E.2d 364, 2015 WL 4430202 at *3.[2] We note that the language quoted from Monroe is language discussing federal law, not the law of North Carolina. Monroe, 233 N.C. App.at 565, 756 S.E.2d at 378 (2014). Further, in Badson this Court quotes Hudgins for the proposition that the "defense of necessity is available in a DWI prosecution[, ]" Badson, 2015 WL 4430202 at *4 (citation omitted), and sets forth the elements of necessity as found in Hudgins: "(1) reasonable action, (2) taken to protect life, limb, or health of a person, and (3) no other acceptable choices available." Id. (citation omitted).

         The elements of duress have been stated as follows:

"In order to successfully invoke the duress defense, a defendant would have to show that his 'actions were caused by a reasonable fear that he would suffer immediate death or serious bodily injury if he did not so act.'" Furthermore, a defense of duress "cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm."

State v. Smarr, 146 N.C.App. 44, 54-55, 551 S.E.2d 881, 888 (2001) (citations omitted). The pattern jury instruction for compulsion, duress, or coercion states, partially tracking the language of Smarr and other opinions involving duress:

310.10 COMPULSION, DURESS, OR COERCION.
There is evidence in this case tending to show that the defendant acted only because of [compulsion] [duress] [coercion]. The burden of proving [compulsion] [duress] [coercion] is upon the defendant. It need not be proved beyond a reasonable doubt, but only to your satisfaction. The defendant would not be guilty of this crime if his actions were caused by a reasonable fear that he (or another) would suffer immediate death or serious bodily injury if he did not commit the crime. His assertion of [compulsion] [duress] [coercion] is a denial that he committed any crime. The burden remains on the State to prove the defendant's guilt beyond a reasonable doubt.

N.C. P.I. Crim. 310.10 (emphasis added).

         We find no binding precedent supporting the proposition that duress and necessity have ceased to be distinct defenses in North Carolina.[3] In recognizing the availability of the necessity defense in trials for DWI, this Court in Hudgins held that the defense of necessity was available based in part on the fact that other "common law defenses are available in DWI prosecutions." Hudgins, 167 N.C.App. at 709, 606 S.E.2d at 447. Countering the State's argument that the necessity defense should not be allowed, this Court held:

The State's argument cannot be reconciled with decisions of this Court indicating that common law defenses are available in DWI prosecutions. This Court recently held that "[i]n appropriate factual circumstances, the defense of entrapment is available in a DWI trial." This Court has also implicitly acknowledged that the defense of duress would be appropriate in a DWI trial. See State v. Cooke, 94 N.C.App. 386, 387, 380 S.E.2d 382, 382-83[.]
Moreover, courts in other jurisdictions have specifically held that the defense of necessity is available in a DWI prosecution. We likewise hold that the defense of necessity is available in a DWI prosecution.

Id. at 709-10, 606 S.E.2d at 447 (citations omitted) (emphasis added). If necessity and duress have ceased to be distinct defenses in North Carolina, this Court in Hudgins could have simply cited Cooke as having implicitly established the viability of the merged necessity/duress defense instead of relying on Cooke's implicit acceptance of the duress defense, along with this Court's explicit recognition of the defense of entrapment, in order to hold that the defense of necessity is also available to defendants on trial for DWI. In addition, reference to the acceptance of necessity as a defense to DWI in other jurisdictions would have been superfluous. We hold the defense of necessity is recognized as a defense separate and distinct from the defense of duress (compulsion or coercion).

         In the present case, both parties and the trial court, while discussing the elements of the requested instruction at the charge conference, solely discussed the elements of necessity as set forth in Badson - and thus Hudgins. However, the elements in Hudgins do not track the language in N.C. P.I. Crim. 310.10, the pattern jury instruction for duress. The State argued the required elements as follows: "That it first must be a reasonable act taken to . . . protect the life, limb, or health of a person..... And to the third action, that [there] must be no other acceptable choices available." The State then suggested that this Court's opinion in Cooke recognized a fourth element: "That [D]efendant [continued to face] threatening conduct of any kind at the time the officer saw him while driving while intoxicated."

         Despite the fact that the elements discussed by the parties at the hearing were those for necessity, the trial court, clearly relying on language from N.C. P.I. Crim. 310.10, denied Defendant's request to instruct the jury on the defense of necessity based upon its determination that no evidence had been presented demonstrating that Defendant was in actual "fear" at the time he drove the golf cart on the highway:

[THE COURT:] While the issue appears on it sure to be quite detailed and involved really, a look at the instruction makes it fairly simple in terms of the resolution here. The instruction 310.10 reads in pertinent part to the extent that it influences the decision here, quote:
. . . .
[] [D]efendant would not be guilty of this crime if his actions were caused by a reasonable fear that he or another would suffer immediate death or serious bodily injury if he did not commit the crime. Unquote.
Of course there is reasonable dispute concerning the length of time that was involved here in terms of when that fear still is recognized by the law to be present and existent in terms of the length of time or the length of participation as to where there was a fear that began as opposed to the point where it was still ...

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