Appeal by defendant from judgment entered 16 September 1999 by
Judge B. Craig Ellis in Forsyth County Superior Court. Heard in
the Court of Appeals 19 February 2001.
Attorney General Michael F. Easley, by Special Deputy Attorney
General James P. Longest, Jr., for the State.
Donald K. Tisdale, Sr., for defendant-appellant.
EAGLES, Chief Judge.
Defendant appeals from judgment entered 16 September 1999
based on the jury's verdict finding him guilty of voluntary
manslaughter. Defendant contends that the trial court erred in its
charge to the jury concerning the curtilage of defendant's home.
We disagree.
The evidence tended to show the following: On 10 July 1998
James Hilton came to defendant's home in search of Deirdre Schuler,
a prostitute. Ms. Schuler lived next door to defendant. Hilton,who seemed intoxicated, began yelling Schuler's name, after which
a fight ensued between Hilton and defendant on defendant's porch.
During the tussle, defendant pulled out a knife. The two fell over
the porch bannister onto the grass. At some point Hilton was
fatally stabbed.
Defendant testified that a few days earlier, Hilton had told
defendant that Hilton was going to “blow [defendant's] head off.”
Ms. Schuler testified that defendant started the fight by hitting
Hilton on the head. Another witness, Mr. Spencer Lee Wilson,
testified that the fight started when Hilton attempted to forcibly
enter defendant's home and defendant struck him. Dr. Patrick
Lantz, the forensic pathologist who performed the autopsy,
testified that the fatal stab wound was not consistent with a fall.
Defendant was charged with second degree murder and convicted of
voluntary manslaughter.
At the charge conference, defendant requested that the jury be
instructed on self-defense. Defendant further requested that the
court give a special instruction on defendant's right to defend
himself pursuant to G.S. § 14-51.1. The trial court agreed to
give the instructions and twice instructed on self-defense as
follows:
If the defendant was not the aggressor and he was on his
own premises, he could stand his ground and repel force
with force regardless of the character of the assault
made upon him; however, the defendant would not be
excused if he used excessive force.
Further the trial court stated:
If the defendant killed the victim to prevent forcible
entry into his place of residence or to terminate the
intruder's unlawful entry, the defendant's actions are
excused and he is not guilty. The State has the burdenof proving from the evidence beyond a reasonable doubt
that the defendant did not act in a lawful defense of his
home.
The defendant was justified in using deadly force if, (1)
such force was being used to prevent a forcible entry
into the defendant's place of residence; and (2) the
defendant reasonably believed that the intruder might
kill or inflict serious bodily harm to the defendant or
others in the place of residence; and (3) the defendant
reasonably believed that the degree of force he used was
necessary to prevent a forcible entry into his place of
residence.
A lawful occupant within a place of residence does not
have the duty to retreat from an intruder in these
circumstances. It is for you, the jury, to determine the
reasonableness of the defendant's belief from the
circumstances as they appeared to the defendant at the
time.
After instructing the jury the trial court inquired of counsel
as to whether “there [were] any requests for additions or
corrections to the charge.” Neither party made requests. During
the jury's deliberations, it asked whether the front porch was “a
part of the home or inside the home.” The trial court allowed
argument by the parties, and instructed the jury that the “front
porch is a part of the home,” and “a front porch is not inside the
home.”
Defendant argues that the trial court committed prejudicial
error when it failed to instruct the jury that the front porch was
part of the home's curtilage and thus covered under G.S. § 14-
51.1. Because we believe the substance of the instructions read in
context was clear, we disagree.
Defendant does have a right to “stand his ground” to prevent
an intruder from entering.
(a) A lawful occupant within a home or other place of
residence is justified in using any degree of force that
the occupant reasonably believes is necessary, includingdeadly force, against an intruder to prevent a forcible
entry into the home or residence or to terminate the
intruder's unlawful entry (i) if the occupant reasonably
apprehends that the intruder may kill or inflict serious
bodily harm to the occupant or others in the home or
residence, or (ii) if the occupant reasonably believes
that the intruder intends to commit a felony in the home
or residence.
(b) A lawful occupant within a home or other place of
residence does not have a duty to retreat from an
intruder in the circumstances described in this section.
(c) This section is not intended to repeal, expand, or
limit any other defense that may exist under the common
law.
G.S. § 14-51.1 (Reg. Sess., 1994). The trial court's instruction
was substantially similar to this statute. This Court has held
that “[a]n inaccuracy in the [jury] instruction will not be held
prejudicial error when it is apparent from the charge, construed
contextually, that the jury could not have been misled.” State v.
Lankford, 31 N.C. App. 13, 17, 228 S.E.2d 641, 644 (1976); Houston
v. Rivens, 22 N.C. App. 423, 427, 206 S.E.2d 739, 742 (1974). We
believe that when the trial court instructed the jury that “[i]f
the defendant killed the victim to prevent forcible entry into his
place of residence or to terminate the intruder's unlawful entry,
the defendant's actions are excused and he is not guilty,” the
substance of the law of curtilage was given. The jury was
instructed that if death occurred while the defendant was
preventing forcible entry, the defendant's actions are excused.
Additionally, the trial court instructed the jury that
[i]f the defendant was not the aggressor and he was on
his own premises, he could stand his ground and repel
force with force regardless of the character of the
assault made upon him; however, the defendant would not
be excused if he used excessive force.Thus, the instruction included the curtilage in the area within
which a defendant has the right to “stand his ground.”
The defendant argues that the question raised by the jury
required further explanation. The jury asked whether the front
porch was “a part of the home or inside the home.” The trial court
replied that the “front porch is a part of the home,” and “a front
porch is not inside the home.” When read in context this
instruction is sufficient.
Defendant argues that there is no duty to retreat from attacks
made within the curtilage of the home. State v. Frizzelle, 243 N.C.
49, 51, 89 S.E.2d 725, 726 (1955). “[C]urtilage of the home will
ordinarily be construed to include at least the yard around the
dwelling house as well as the area occupied by barns, cribs, and
other outbuildings." Id.
Defense argues that the gist of the jury's question is whether
the privilege not to retreat extends to the front porch. The trial
court instructed the jury that when a person is on his own premises
he has no duty to retreat. Always, a person has the right to use
only the force necessary so as to “overcome the assault and secure
himself from all harm.” G.S. § 14-51.1; State v. Johnson, 261
N.C. 727, 729, 136 S.E.2d 84, 86 (1964). Since there was no
instruction stating a circumstance where this defendant (a) had a
duty to retreat or (b) was authorized to use force other that what
was reasonably necessary to repel the assault, on this record we
hold that further clarification was unnecessary.
Accordingly we conclude that in the trial there was No error.
Judge CAMPBELL concurs.
Judge HUNTER dissents.
NO. COA00-235
NORTH CAROLINA COURT OF APPEALS
Filed: 15 May 2001
STATE OF NORTH CAROLINA
v
.
&
nbsp; Forsyth County
&
nbsp; No. 98CRS31902<
br>
LEE ISAAC BLUE
HUNTER, Judge, dissenting.
The majority rests its opinion on the fact that the trial
court “twice instructed on self defense” in that it instructed the
jury that if defendant was on his own premises and was preventing
forcible entry into his place of residence, then defendant had a
right to defend himself pursuant to N.C. Gen. Stat. § 14-51.1. I
agree that this is a correct statement of the law; however, because
the trial court -- at no time -- explained the legal perimeters of
one's home or mentioned defendant's right to defend himself within
the curtilage of his home, I am of the opinion that the majority
has effectively removed from the jury's consideration defendant's
right to defend himself on the porch of his home. Therefore, I
respectfully dissent.
There can be no dispute, our Supreme Court having stated that
a “jury, being laymen, [often is] not [] so apt to see the
connection between the principles of law laid down and the facts in
[a] case which so clearly appears to an experienced lawyer or
judge.” Smith v. Bus Co., 216 N.C. 22, 23, 3 S.E.2d 362, 363(1939). However, the majority states that: “Because we beli
eve
the substance of the [jury] instructions read in context was
clear,” defendant was not prejudiced by the trial court's failure
to explain “curtilage” to the jury. I must disagree.
Having looked in two separate extensive dictionaries (The
American Heritage College Dictionary, 3rd Ed., Houghton Mifflin
Co., and; Webster's II New Riverside Dictionary, Revised, Houghton
Mifflin Co.), the word “curtilage” cannot be found. Instead,
“curtilage” is a legal term, “the meaning of which term in law is,
a piece of ground, either enclosed or not, that is commonly used
with the dwelling-house.” State v. Twitty, 2 N.C. 102, 102 (1794)
(emphasis added). Thus, I believe -- under the circumstances of
this case -- that the “evidence should have been considered [by the
trial court] and the [trial] court should have declared and
explained the law arising on th[e] evidence in its instruction to
the jury . . . .” State v. Greenidge, 102 N.C. App. 447, 452, 402
S.E.2d 639, 642 (1991) (emphasis added). Specifically, the trial
court should have explained to the jury that defendant was just as
entitled to “stand his ground” and defend himself (pursuant to the
statutory provisions) on his front porch, as he was to do so in his
home.
It is clear from the trial court's own statements that it gave
the N.C. Gen. Stat. § 14-51.1 jury instruction because the evidence
presented at trial would support the jury's finding that defendant
acted pursuant to the statute's self defense provisions. However,later, during its deliberations, the jury sent a note inquiring,
“[i]s the front porch considered to be a part of the home or inside
of the home?” Following discussion between the trial court and
counsel for both sides, and noting defendant's exception to its
ruling, the trial court instructed the jury that “a front porch is
a part of the home but a front porch is not inside the home.” I
believe, once the jury inquired particularly about whether the
porch was part of the home, the trial court had an obligation
(pursuant to defendant's request) to clearly explain that the
porch, although not “within” the home, was part of the curtilage of
the home and as such, was covered under the statute.
Moreover, I do not agree with the majority's apparent
rationale that because the trial court used the word “premises,”
the jury knew and understood that the privilege included the porch,
extending beyond the “within” or “inside” or “into” the home
language as stated in both the statute and the trial court's
instructions. Thus, I believe that, without further instruction
from the trial court, the jury -- as laymen -- most likely
understood the law to require defendant to retreat while on the
porch of his home, and did not remove that duty until defendant was
defending himself inside his home. Therefore, in light of the
jury's query to that effect, and the trial court's obvious
agreement that the evidence could support such a finding, I would
hold that the trial court's response to the jury's query regarding
the porch was prejudicial to defendant because it did not clarify
that the porch was part of the curtilage of the home and thus, wascovered under N.C. Gen. Stat. § 14-51.1's self defense provisions.
“It is the duty of the court to instruct the
jury on all substantial features of the case
arising on the evidence, . . . and the court's
failure to do so will be held for error.”
(citing cases) “The statute, G.S. 1-180,
makes it incumbent on the trial judge to
declare and explain the law arising on the
evidence given in the case.” Finch v. Ward,
238 N.C. 290, 77 S.E.2d 661.
“Implicit in the meaning of this statute
(G.S. 1-180) as interpreted by numerous
decisions of this Court is the requirement
that the judge must declare and explain the
law as it relates to the various aspects of
the evidence . . . in the case.” Bank v.
Phillips, 236 N.C. 470, 73 S.E.2d 323[, 327].
“It is the duty of the court to state the
evidence to the extent necessary and to
declare and explain the law as it relates to
the pertinent aspects of the testimony offered
[citing cases] and the duty of the court to
declare and explain the law arising on such
evidence remains unchanged by the present
provisions of G.S. 1-180.” Chambers v. Allen,
233 N.C. 195, 63 S.E.2d 212[, 214] . . . .
[In the present case t]he confusion in
the minds of the jurors probably arose with
respect to the application of the law to the
facts. The evidence [of the victim's tussle
with defendant on his porch] was not in
dispute. When the court, therefore, charged
again as to the law it was its duty to do more
than read from the book. . . .
Ammons v. Insurance Co., 245 N.C. 655, 657-58, 97 S.E.2d 251, 252-
53 (1957) (emphasis added).
In the present case:
Defendant's requested instruction concerned a
subordinate feature of the case since it did
not relate to elements of the crime itself nor
to defendant's criminal responsibility
therefore. Absent defendant's request, the
jury instructions would have been entirelyproper since a Court is not required to give
instructions on subordinate features of a
case. When a requested instruction, however,
is correct in law and supported by the
evidence, the Court must give the instruction
in substance. The requested instruction in
the instant case was a correct application of
the law to the evidence.
The failure to so instruct constituted
prejudicial error, entitling defendant to a
new trial.
State v. Bradley, 65 N.C. App. 359, 363, 309 S.E.2d 510, 513 (1983)
(citations omitted) (emphasis added). With curtilage being a legal
term and the statute and jury instruction emphasizing only
defendant's right to defend himself within his home or from an
intruder attempting to enter into his home, I believe the curtilage
instruction was necessary to apprize the jury of the applicable
case law. “The rule . . . that a person is not obliged to retreat
when he is assaulted while in his dwelling house or within the
curtilage thereof,” still prevails and thus, the trial court was
obligated to so instruct the jury. State v. Browning, 28 N.C. App.
376, 379, 221 S.E.2d 375, 377 (1976) (emphasis added). Therefore,
I am of the opinion defendant is entitled to a new trial.
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