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State v. Kuhns

Court of Appeals of North Carolina

July 3, 2018


          Heard in the Court of Appeals 29 November 2017.

          Appeal by defendant from judgment entered 13 May 2016 by Judge Julia Lynn Gullett in Alexander County No. 14 CRS 51446 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Kimberly D. Potter, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.

          CALABRIA, JUDGE.

         Donald Joseph Kuhns ("defendant") appeals from a judgment entered upon a jury's verdict finding him guilty of voluntary manslaughter. After careful review, we conclude that the trial court committed prejudicial error by denying defendant's request for a jury instruction on the defense of habitation, N.C. P.I.--Crim. 308.80. Therefore, we reverse the trial court's judgment and remand for a new trial.

         I. Factual and Procedural Background

          In October 2014, defendant lived across the road from his son ("George") in the Johnny Walker Mobile Home Park ("JWMHP") in Hiddenite, North Carolina. Kenneth Nunnery ("Nunnery") and Johnny Dockery ("Dockery") lived in separate homes on nearby Ervin Lane. Defendant, George, Nunnery, and Dockery were friends and frequently spent time together.

         After defendant came home from work at 4:30 p.m. on 2 October 2014, he went over to George's home to drink beer. Nunnery joined them around 5:30 p.m., although he does not drink alcohol. Approximately an hour later, the three men were talking outside George's home when Dockery and his girlfriend ("Kim") arrived. Dockery had a jar of "moonshine" and two shot glasses with him. Dockery and Kim were already intoxicated and started arguing. After defendant told him to "leave her alone," Dockery became angry and "started saying [he] better not catch nobody with his girlfriend, he'd kill them." Kim drove away, and Dockery ran after her.

         The dispute between defendant and Dockery continued to escalate over the next several hours. At 8:17 p.m., Dockery called 911 to report that Kim was driving while intoxicated. When Deputy Terry Fox ("Deputy Fox") arrived, he heard loud voices coming from the JWMHP and went to investigate. Dockery was standing in the middle of the road, shouting in the direction of defendant's home. Dockery told Deputy Fox that he was arguing with defendant, but that defendant was his friend whom he sometimes called "Dad." During their conversation, defendant exited his home, walked over to George's, and reappeared with a 12-pack of beer. As he returned home, defendant warned Deputy Fox that Dockery needed to leave before "something bad" happened. Deputy Fox ordered Dockery to go home and watched him to ensure that he complied.

         However, at 9:15 p.m., defendant called 911 and reported that Dockery was standing in defendant's yard, "threatening [his] life" and "running his mouth. He's been drinking white liquor and . . . he's a friend of mine, but today he's not a friend." Defendant explained that he did not want to press charges or "hurt nobody"; rather, he "just want[ed Dockery] out of [his] face." When law enforcement arrived, Dockery was "yelling pretty loud." He told the officers that "people were being rude to him" and "called him names." Defendant warned them to tell Dockery "not to come back or he would do something about it." The officers again instructed Dockery to go home, and followed him to ensure that he complied.

         At approximately 10:00 p.m., the argument culminated in a final confrontation in defendant's yard, which ended when defendant fatally shot Dockery. However, conflicting evidence was presented at trial to explain how these events transpired. Defendant's next-door neighbor, Angela McFee, testified that minutes before the shooting, she was sitting on her porch when she overheard defendant taunting Dockery as he walked home through a nearby field. According to McFee, defendant said, "[T]hat's right, take your f---ing a-- home," and used a racial slur. At that point, Dockery walked over to defendant's yard, and the men began "cursing and fussing." Dockery asked defendant "if he had his gun out, and [defendant] said yeah."

         However, according to defendant, he was inside his home, attempting to sleep, when he heard Dockery yelling, "[C]ome on out here, you son of a bitch, I'm going to kill you." Defendant retrieved his .32-caliber pistol and went outside onto the porch, approximately six and one-half feet above the yard. Dockery was in the yard just beside the porch, "cussing and hollering" at defendant. Defendant told Dockery to go home. When Dockery saw the gun, he said, "[Y]ou're going to need more than that P shooter, motherf---er, I've been shot before." According to defendant, Dockery was pacing back and forth, and then "came at [him] really fast." Defendant took a step back and fired one shot. The bullet struck Dockery just above his left eyebrow, killing him.

         On 3 October 2014, Alexander County Sheriff's Office deputies executed an arrest warrant charging defendant with first-degree murder. Defendant was indicted for the same offense on 27 October 2014. Trial commenced during the 3 May 2016 session of Alexander County Superior Court. Following the ...

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