in the Supreme Court on 6 November 2017.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
789 S.E.2d 679 (2016), finding no error after appeal from a
judgment entered on 12 July 2015 by Judge J. Carlton Cole in
Superior Court, Pasquotank County.
H. Stein, Attorney General, by Amy Kunstling Irene, Special
Deputy Attorney General, for the State.
Gerding, Appellate Defender, by Paul M. Green, Assistant
Appellate Defender, for defendant-appellant.
Williams Mullen, by Camden R. Webb; and Ilya Shapiro, pro hac
vice, for Cato Institute, amicus curiae.
case is about whether the trial court erroneously instructed
the jury when it omitted the relevant stand-your-ground
provision from its instructions on self-defense, and, if so,
whether such error was preserved. By omitting the relevant
stand-your-ground provision, the trial court's jury
instructions were an inaccurate and misleading statement of
the law. Such error is preserved when the trial court
deviates from an agreed-upon pattern instruction. Defendant
has shown a reasonable possibility that, had the trial court
given the required stand-your-ground instruction, a different
result would have been reached at trial. Accordingly, we
reverse the decision of the Court of Appeals. Defendant is
entitled to a new trial with proper self-defense and
December 2012, defendant celebrated New Year's Eve at a
neighbor's home in Elizabeth City. Shortly after
midnight, defendant left his neighbor's home on foot and
encountered several people convened around a car, including
Quinton Epps (Epps) and defendant's cousin, Jamieal
Walker (Walker). Epps and Walker were engaged in a heated
argument. Epps ultimately left in the car, and defendant went
inside his home. About twenty minutes later, another car
approached defendant's home. Defendant and Walker were
standing "beside the house and in the front yard."
Defendant saw Epps exit the car's back passenger side.
Walker and Epps began arguing, and Epps became verbally
abusive and aggressive. Epps got back into the car and left
the scene. Soon thereafter, another car drove alongside
defendant's backyard, stopping briefly. Defendant
retrieved his pistol and concealed it on his person,
"[out of] instinct, " though defendant believed
"[Epps] wasn't a threat at th[at] time." The
car ultimately parked three houses down from defendant's
residence. Epps and several others exited the car.
and Walker walked down the street to talk to Epps. Epps and
Walker again argued in the street and sidewalk area as
defendant watched from a short distance. Defendant saw that
Epps had a gun behind his back. The argument escalated, and
Walker punched Epps in the face. Epps grabbed Walker's
hoodie, shot him twice in the stomach, and continued shooting
as Walker turned to flee. Walker was later found dead nearby.
Epps fired his last shot at Walker, Epps turned and pointed
his gun at defendant. Before Epps could fire, defendant
fatally shot Epps. Defendant stated that it happened quickly,
lasting approximately four seconds, and added that he would
have shot Epps to protect Walker but could not get a clear
shot because Epps and Walker were too close together during
the struggle. Defendant was ultimately indicted for
trial defendant asserted that he fired the fatal shot in
self-defense, maintaining that he shot Epps only after Epps
turned the gun on him and denying that he continued to shoot
after Epps fell to the ground. Defendant introduced evidence
supporting his version of events, including, inter
alia, an eyewitness, his police interview, and taped
telephone calls from the jail. The State argued defendant did
not shoot in self-defense and introduced, inter
alia, a witness who testified that while Epps was
"on the ground, " defendant "came out of
nowhere" and "[ran] up and [kept] shooting
[Epps]." During closing arguments, the State contended
that defendant should have retreated because a reasonable
person in defendant's shoes would have "removed
himself from the situation" and "run[ ] away."
trial court's request, the parties agreed to the delivery
of N.C. P.I.-Crim. 206.10, the pattern jury instruction on
first-degree murder and self-defense. This instruction
provides, in relevant part: "Furthermore, the defendant
has no duty to retreat in a place where the defendant has a
lawful right to be." N.C. P.I.-Crim. 206.10 (June 2014).
In addition, N.C. P.I.-Crim. 308.10, which is incorporated by
reference in footnote 7 of N.C. P.I.-Crim. 206.10 and is
entitled "Self-Defense, Retreat, " states that
"[i]f the defendant was not the aggressor and the
defendant was . . . [at a place the defendant had a lawful
right to be], the defendant could stand the defendant's
ground and repel force with force." Id. 308.10
(June 2012) (brackets in original).
the trial court agreed to instruct the jury on self-defense
according to N.C. P.I.-Crim. 206.10, it ultimately omitted
the "no duty to retreat" language of N.C.
P.I.-Crim. 206.10 from its actual instructions without prior
notice to the parties and did not give any part of the
"stand-your-ground" instruction. Defense counsel
did not object to the instruction as given. Though the jury
reported that it was deadlocked, it ultimately convicted
defendant of second-degree murder, following approximately
nine hours of deliberation. Defendant appealed.
Court of Appeals, defendant argued that the trial court's
"omission of a jury instruction that a person confronted
with deadly force has no duty to retreat but can stand his
ground" was error, preserved by the trial court's
deviation from the agreed-upon pattern instruction, see
State v. Withers, 179 N.C.App. 249, 255, 633 S.E.2d 863,
867 (2006), or plain error, regardless, see State v.
Wilson, 197 N.C.App. 154, 164-65, 676 S.E.2d 512,
518-19, disc. rev. denied, 363 N.C. 589, 684 S.E.2d
158 (2009). The Court of Appeals affirmed defendant's
conviction, reasoning that the law limits a defendant's
right to stand his ground to "any place he or she has
the lawful right to be, " State v. Lee, __
N.C.App. __, __, 789 S.E.2d 679, 685 (2016) (emphasis
omitted) (quoting N.C. G.S. § 14-51.3(a) (2015)), which
did not include the public street where the incident
occurred. We allowed defendant's petition for
contends the trial court erroneously omitted the relevant
stand-your-ground provision and that such error is preserved
by the trial court's deviation from the pattern
instruction. We conclude that, by omitting the relevant
stand-your- ground provision from the agreed-upon