in the Supreme Court on 4 March 2019.
pursuant to N.C. G.S. § 7A-30(2) from the unpublished
decision of a divided panel of the Court of Appeals, __
N.C.App. __, 817 S.E.2d 500 (2018), finding no error after
appeal from a judgment entered on 24 May 2017 by Judge Milton
F. Fitch, Jr. in Superior Court, Edgecombe County.
H. Stein, Attorney General, by Thomas O. Lawton III,
Assistant Attorney General, for the State.
Jeffrey William Gillette for defendant-appellant.
Alphonzo Harvey was charged upon a proper
indictment and convicted by a jury of second-degree murder, a
criminal offense in violation of N.C. G.S. § 14-17.
Defendant contended on appeal that the trial court committed
error by failing to instruct the jury on the affirmative
defense of self-defense pursuant to his request. The Court of
Appeals disagreed and upheld defendant's conviction,
finding that in light of the evidence, defendant was not
entitled to a jury instruction on any theory of self-defense.
We affirm the determination of the Court of Appeals.
and Procedural Background
April 2016, defendant was indicted by a grand jury for the
criminal offense of first-degree murder in connection with
the stabbing death of Tobias Toler. Defendant pleaded not
guilty and the State elected to refrain from proceeding
capitally. A jury trial was held beginning on 22 May 2017
before the Honorable Milton F. Fitch, Jr. in Superior Court,
Edgecombe County, during which the State presented evidence
from ten witnesses and defendant testified on his own behalf.
evidence presented at trial tended to show the following: On
11 August 2015, Toler and four of defendant's friends
attended a party at defendant's mobile home. At the
party, the attendees were drinking alcohol, listening to
music, and dancing. At some point, Toler was dancing with a
woman with whom defendant had previously engaged in a
romantic or sexual relationship. Toler had been drinking a
beer with a high alcohol content from a plastic bottle, and
he began staggering "all over [the] house" and
acting in a rowdy manner by "getting real loud and . . .
cussing and fussing." Defendant, who had consumed at
least one beer by this time, realized Toler was intoxicated
and testified that he "asked him to leave about seven,
eight times." Toler, however, refused to depart until
defendant left the dwelling as well. Defendant testified
that, as he exited the trailer, Toler followed and stated
that "he ought to whip [defendant's] damn ass."
Toler threw the plastic beer bottle from which he had been
drinking in defendant's direction, but the bottle did not
make contact with defendant.
started to go back inside his mobile home but, upon realizing
that Toler had not yet left the premises, turned back to
confront Toler, asking, "[D]idn't I tell you [to]
leave my damn house[?]" Defendant testified that, in
response, Toler found "a piece of broke [sic] off little
brick" and threw it at defendant, cutting
defendant's finger. Toler then reached into his pocket
and produced a small, black pocketknife, telling defendant
that "he ought to kill [defendant's] damn ass with
it."Defendant once again ordered Toler to leave
his property, at which point defendant testified that after
Toler hit him, he "hit [Toler] in the face."
then went back inside his mobile home and grabbed a knife
from the top of a cabinet. Defendant testified that his purpose
for returning to the trailer to obtain the knife was
"[b]ecause I was scared [Toler] was going to try and
hurt me," and that it was defendant's belief that
once he got the knife, Toler would "leave, go ahead on
and leave." When defendant returned outside, he
approached Toler while displaying the knife and swinging it
in Toler's direction. When questioned at trial regarding
his use of the knife, defendant testified that he "tried
to make [Toler] leave." During the confrontation, Toler
attempted to move defendant's motorized scooter which was
resting against the side of the mobile home. In the process,
the scooter fell to the ground, breaking its
headlights. Toler also slipped to the ground, but
immediately returned to his feet. Defendant then approached
Toler and "ma[d]e a stabbing motion about three
times," piercing Toler once in the chest and puncturing
the stabbing, Toler attempted to run away but collapsed in a
nearby resident's yard. When asked on direct examination
about Toler's departure from defendant's mobile home
property, defendant stated that "[a]fter the accident
happened to him, he left, he ran out of the yard then."
Defendant further testified that he believed that Toler
"just got scared and ran," and he thought that
Toler had collapsed because he was drunk. Defendant did not
approach Toler after he left defendant's property;
instead, defendant walked back inside the mobile home, pulled
out a tissue, and cleaned Toler's blood from the blade of
the knife. Defendant then placed the knife back on top of the
cabinet from where defendant had initially obtained it,
walked outside, and proceeded to burn the bloody tissue that
he had used to clean the knife.
had given notice of his intent to assert defenses that
included self-defense, and during the charge conference he
requested a self-defense instruction along with an
instruction on voluntary manslaughter. The trial court
declined to deliver both of these requested instructions and
instructed the jury to consider only whether defendant was
guilty of first-degree murder, the lesser-included offense of
second-degree murder, or not guilty. Accordingly, no form of
a self-defense instruction was given to the jury by the trial
court. On 24 May 2017, the jury convicted defendant of
second-degree murder for the stabbing of Toler. The trial
court thereupon sentenced defendant to a term of 483 to 592
months of imprisonment.
defendant's appeal, the Court of Appeals concluded that
defendant was not entitled to a self-defense instruction
because the evidence at trial did not establish that
defendant believed that it was necessary to kill Toler in
order to protect himself from death or great bodily harm. As
a result, the Court of Appeals majority found no error in
defendant's trial. The dissenting judge on the Court of
Appeals panel expressed the opinion that the trial court
should have delivered a self-defense instruction and that its
failure to do so prejudiced defendant. We agree with the
lower appellate court, as this Court finds the Court of
Appeals' application of the pertinent law to be sound and
correct. Consequently, we shall weave some of its analysis
into our own.
concept of self-defense emerged in the law as a recognition
of a 'primary impulse' that is an 'inherent
right' of all human beings." State v.
Moore, 363 N.C. 793, 796, 688 S.E.2d 447, 449 (2010)
(quoting State v. Holland, 193 N.C. 713, 718, 138
S.E. 8, 10 (1927)). The principles of the two types of
self-defense-perfect and imperfect-"are well
established." State v. Reid, 335 N.C. 647, 670,
440 S.E.2d 776, 789 (1994). A defendant is entitled to an
instruction on perfect self-defense as an excuse for a
killing when the evidence presented at trial tends to show
that, at the time of the killing:
(1) it appeared to defendant and he believed it to be
necessary to kill the deceased in order to save himself from
death or great bodily harm; and
(2) defendant's belief was reasonable in that the
circumstances as they appeared to him at the time were
sufficient to create such a belief in the mind of a person of
ordinary firmness; and
(3) defendant was not the aggressor in bringing on the
affray, i.e., he did not aggressively and willingly enter
into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use
more force than was necessary or reasonably appeared to him
to be necessary under the circumstances to protect himself
from death or great bodily harm.
State v. Bush, 307 N.C. 152, 158-59, 297 S.E.2d 563,
568 (1982) (quoting State v. Norris, 303 N.C. 526,
530, 279 S.E.2d 570, 572-73 (1981) (italics omitted)),
habeas corpus granted sub nom. Bush v. Stephenson,
669 F.Supp. 1322 (E.D. N.C. 1986), aff'd per
curiam, 826 F.2d 1059 (4th Cir. 1987) (unpublished);
see also State v. Watson, 338 N.C. 168, 179-80, 449
S.E.2d 694, 701 (1994) (quoting State v. McAvoy, 331
N.C. 583, 417 S.E.2d 489 (1992)), cert. denied, 514
U.S. 1071 (1995), disavowed in part in State v.
Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995). The
doctrine of imperfect self-defense applies when the evidence
supports a determination that only the first two elements in
the preceding quotation existed at the time of the killing,
in which case the defendant would be guilty of the lesser
included offense of voluntary manslaughter. State v.