             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-403

                                 Filed: 7 April 2020

Robeson County, Nos. 12 CRS 55140, 3384–85

STATE OF NORTH CAROLINA

            v.

MARQUES RAMAN BROWN


      Appeal by defendant from judgments entered 5 March 2018 by Judge Robert

F. Floyd in Robeson County Superior Court. Heard in the Court of Appeals 3

December 2019.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Adren
      L. Harris, for the State.

      Rudolf Widenhouse, by M. Gordon Widenhouse, Jr., for defendant.


      DIETZ, Judge.


      Defendant Marques Brown shot and killed an off-duty police officer who was

approaching Brown’s car to arrest him on several active warrants. At the time, Brown

was on edge because there had been several attempts on his own life by individuals

who believed Brown had murdered a man named “Fat Boy.”

      In the several seconds after the officer pulled up in his car and got out, wearing

ordinary civilian clothes, Brown glimpsed a handgun on the officer, although Brown

admitted that the officer never pointed the weapon at Brown or motioned as if he
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                                   Opinion of the Court



intended to use it. Brown then grabbed his own gun, pointed it out his car window,

and killed the officer. Brown later explained that he feared for his life because “any

time I ever seen somebody coming at me with a gun, it was shot.”

      Brown appeals his conviction for second degree murder on the ground that the

trial court wrongly refused his request for instructions related to self-defense. We

reject this argument. Viewing the evidence in the light most favorable to Brown, and

considering the mind of a person of ordinary firmness, it was not reasonable for

Brown to believe that it was necessary to shoot and kill the approaching officer to

avoid serious bodily injury or death. Accordingly, the trial court properly declined to

instruct the jury on these self-defense issues and we find no error in the trial court’s

judgments.

                          Facts and Procedural History

      On the morning of 17 July 2012, Officer Jeremiah Goodson was off duty and

running errands with his wife when he stopped at a gas station. At the gas station,

Officer Goodson told his wife that he saw someone inside the store who had active

warrants and that he needed to drop her off somewhere safe. Goodson took his wife

to a nearby strip mall.

      Officer Goodson then contacted his supervisor, Lieutenant Monteiro, to report

that he located a subject with active warrants, Defendant Marques Brown. Goodson

described Brown’s clothing and vehicle and reported that Brown was with a woman



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and a small child. Lieutenant Monteiro immediately instructed an on-duty officer,

Officer Hayes, to respond to the gas station to assist in serving the warrants and

making the arrest. Monteiro told Goodson to remain on the line and to keep sight of

Brown in case he changed locations.

      Officer Goodson reported that Brown’s car moved to a nearby gas station

parking lot. Officer Hayes testified that when he arrived at the parking lot, he blocked

Brown’s car with his patrol vehicle, while Goodson simultaneously pulled his personal

vehicle beside Brown’s car. Hayes saw Goodson step out of his car and take a single

step towards the store before being struck by multiple gunshots. A cashier working

at the gas station witnessed the incident and testified that she saw Goodson exit his

car in the parking lot, that Goodson was “looking in the store like he’s looking for

somebody,” and then “his shirt starts to change colors and he hits the ground.” A

customer at the gas station testified that he heard multiple shots and saw a hand

holding a gun out the window of Brown’s vehicle.

      Immediately after the shooting occurred, Officer Hayes drew his weapon and

approached Brown’s vehicle where Brown was sitting in the passenger seat. The front

and back passenger windows were partially rolled down. Hayes opened the door of

Brown’s vehicle and ordered Brown to get out. Hayes saw a gun lying in the front

passenger seat. The gun had a ten-round capacity with six bullets remaining.




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      Captain Johnny Coleman arrived on the scene after learning that an officer

was down and observed Goodson lying face down between his vehicle and Brown’s

vehicle. Goodson was dressed in plain clothes and his head was facing towards the

store. When they rolled Goodson over, there was a gun lying underneath him.

      Brown told the officers that he was not aware the man he shot was a police

officer. He explained that Officer Goodson “had a gun in his hand,” although he also

asserted, conflictingly, that he “didn’t see the gun.” When asked about the gun, Brown

also told the officers that Goodson didn’t “raise it and point it at me or nothing.”

      On 3 August 2012, Brown was indicted for first degree murder of Officer

Goodson, possession of a firearm by a felon, and possession with intent to sell or

deliver marijuana. The case went to trial on 19 February 2018.

      At trial, Dr. Richard Johnson testified that he performed the autopsy on Officer

Goodson and found four gunshot wounds: two in the chest, one in the left side of the

face, and one in the back of the head. Goodson’s cause of death was one of the gunshot

wounds to the chest that was fired from close range and hit the heart.

      The State presented surveillance footage of the gas station parking lot while a

detective described what was shown in the video. At 11:00:00, Goodson’s car comes

into view and approaches the passenger side of Brown’s vehicle while Hayes’s marked

patrol car approaches the rear of Brown’s vehicle. At 11:00:03, Goodson’s car comes

to a stop and the driver’s side of Goodson’s car begins to open. At 11:00:05, Goodson



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starts to step out of his car. At 11:00:06, Goodson is out of his car and standing, and

the door of his car starts to close. At 11:00:07, Goodson’s head starts to drop, he starts

to fall forward, and then is down on the ground. At the same time, the patrol car door

opens and Hayes rushes out.

      The entire incident, from Goodson’s approach in his car to his collapse to the

ground, took approximately seven seconds. Goodson was out of his car for only two

seconds. The State also presented dashcam footage of the shooting from Hayes’s

patrol car showing the same timeline of events.

      Brown testified that he had a difficult childhood due to his mother’s drug

addiction and witnessing multiple violent incidents as a child. He also explained that

there were attempts on his own life by people who believed that Brown was involved

in the murder of a man named “Fat Boy.”

      Brown testified that when he saw Goodson’s car pull up beside him, he grabbed

his gun and took the safety off while the car was still pulling up. Then he saw a man

“looking at me like real mean, like with hate . . . sliding out the car . . . like with a

gun.” Brown then shot at Goodson through the back passenger window because

Brown believed he had a clearer shot through that rolled down window. Brown only

recalled firing three shots.

      Brown testified that his actions were “like a reflex.” He explained that he saw

a “glimpse of a gun” as Goodson got out of his car but conceded that Goodson never



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pointed a gun at him or motioned as if he intended to fire a gun. Brown fired his own

gun because, having seen a glimpse of a gun on Goodson, he believed Goodson

intended to kill him. Brown explained that “any time I ever seen somebody coming at

me with a gun, it was shot. And this is close contact . . . it was too intense.”

      Brown presented expert testimony from Dr. George Corvin that Brown has a

“mild intellectual disability” with an IQ of 69 and that Brown suffers from PTSD,

which “impaired” his ability to “perceive what is going on” and “to react to stress

appropriately.” Dr. Corvin testified that, in his opinion, Brown shot Goodson because

he believed Goodson “was going to kill him, was going to shoot him, or at least try to.”

      During the charge conference, Brown requested instructions on self-defense

and on the lesser-included offense of voluntary manslaughter based on imperfect self-

defense. The trial court denied Brown’s requests, explaining “it doesn’t rise to self-

defense, because there’s no threat of deadly force been presented against him of this

defendant at all. The evidence would show now the defendant jumped the gun, and

speculated, and he could have speculated that anybody getting out of the car. He

made his mind up, he testified when the car drove up quickly . . . . [A]s soon as the

victim, Officer Goodson, cleared the vehicle, within three seconds he was dead on the

ground, or he was on the ground. Never saw a gun drawn on him, assumed there was

a gun drawn on him.”




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                                  Opinion of the Court



      On 5 March 2018, the jury convicted Brown of second degree murder,

possession of a firearm by a felon, and possession with intent to sell or deliver

marijuana. The trial court sentenced Brown to 258 to 322 months in prison for second

degree murder and a consolidated sentence of 21 to 35 months in prison on the

remaining charges. Brown appealed.

                                      Analysis

      Brown argues that the trial court erred by denying his request for a jury

instruction on self-defense. He contends that the evidence, taken in the light most

favorable to him, required the trial court to include that instruction. Brown also

argues that the trial court erred by denying his request for an instruction on the

lesser-included offense of voluntary manslaughter based on imperfect self-defense.

We reject these arguments.

      “It is the duty of the trial court to instruct the jury on all substantial features

of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546,

549 (1988). For this reason, “where competent evidence of self-defense is presented

at trial, the defendant is entitled to an instruction on this defense, as it is a

substantial and essential feature of the case.” State v. Morgan, 315 N.C. 626, 643, 340

S.E.2d 84, 95 (1986). In other words, when the evidence, viewed in the light most

favorable to the defendant, discloses facts that are “legally sufficient” to warrant an




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instruction on self-defense, the trial court must give that instruction to the jury. State

v. Everett, 163 N.C. App. 95, 100, 592 S.E.2d 582, 586 (2004).

      Competent evidence of self-defense is evidence that it “was necessary or

reasonably appeared to be necessary” for the defendant “to kill his adversary in order

to protect himself from death or great bodily harm.” State v. Bush, 307 N.C. 152, 160,

297 S.E.2d 563, 569 (1982). “[B]efore the defendant is entitled to an instruction on

self-defense, two questions must be answered in the affirmative: (1) Is there evidence

that the defendant in fact formed a belief that it was necessary to kill his adversary

in order to protect himself from death or great bodily harm, and (2) if so, was that

belief reasonable?” Id. Importantly, our Supreme Court has held that a defendant’s

belief is reasonable only if “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.”

State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572 (1981) (emphasis added).

      Brown argues that, applying this precedent, the trial court should have given

a self-defense instruction because there was competent evidence that Officer Goodson

“came toward him with his gun drawn.” This, Brown contends, led him to believe that

he was “about to be killed by a man he did not recognize.”

       The trial evidence does not support Brown’s argument. Brown’s testimony—

viewed in the light most favorable to him—was that Officer Goodson pulled his car

beside Brown’s and that Brown saw “a glimpse of a gun” when Goodson “slid out the



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car.” Brown also testified that Officer Goodson “didn’t say nothing” but was “looking

at me like real mean, like with hate.” Brown further testified that the gun he

glimpsed “wasn’t pointed at me.” Still, Brown believed that Officer Goodson was

attempting to kill him because “any time I ever seen somebody coming at me with a

gun, it was shot.”

      Brown’s trial testimony was corroborated by his statement to investigators

following his arrest, which was admitted at trial. In that statement, Brown

conflictingly asserted both that he saw a gun and that he “didn’t see the gun.”

Regardless, when discussing Officer Goodson’s gun, Brown explained that Goodson

did not “raise it and point it at me or nothing.”

      Brown also presented expert testimony from Dr. Corvin, who explained that

Brown “either saw the gun, or saw him getting the gun, or in one way, shape, form or

fashion came to the conclusion that the individual getting out of the car was getting

a gun or had a gun in his hand, was looking at him mean, had approached him in an

unusually aggressive manner by speeding up and jumping out of the car.” Thus, Dr.

Corvin explained, Brown’s “perception of the events quickly sort of with combined

influences of post traumatic stress and his limited intellect is what he saw in his

mind. . . . He interpreted that what was occurring was dangerous to him. He then

impulsively says he took the gun.”




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      The trial court properly concluded that this evidence was insufficient to create

a reasonable belief that it was necessary for Brown to use deadly force to protect

himself from death or great bodily harm. Specifically, whatever Brown may have

believed—because he was on edge from an earlier attempt on his life, or because he

was suffering from some form of post-traumatic stress, or for any other idiosyncratic

reason—the evidence demonstrated that “in the mind of a person of ordinary

firmness” there was no basis to use deadly force. Norris, 303 N.C. at 530, 279 S.E.2d

at 572.

      Uncontradicted witness testimony and video evidence presented at trial

showed that Officer Goodson did not say anything to Brown, did not point a gun at

Brown, and did not have any physical interaction with Brown. The entire incident

lasted only seven seconds. During the first three seconds, Goodson pulled his car into

the parking spot next to Brown’s car and opened the car door. In the next two seconds,

Goodson got out of his car and stood up. Then, less than two seconds later, Brown

pointed a gun out his car window and shot and killed Officer Goodson.

      Critically important, even Brown’s own testimony acknowledges that Officer

Goodson—at most—had a gun visible either on his body or in his hand. But the

uncontroverted evidence, including Brown’s own testimony, is that Officer Goodson

was not pointing the gun at Brown or taking any action that indicated he was

attempting to shoot Brown. The evidence, even in the light most favorable to Brown,



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is that a car pulled up quickly near Brown’s own car, that an unknown man stepped

out of the car in possession of a handgun, and that the man looked at Brown in a

manner that was “real mean” or full of “hate.”

      The trial court properly concluded that these facts are insufficient to permit a

self-defense instruction. In the mind of a person of ordinary firmness, this evidence

would not permit the use of deadly force on a complete stranger getting out of a

nearby car. Accordingly, the trial court properly declined to give the requested

instruction on self-defense. See id; Bush, 307 N.C. at 160–61, 297 S.E.2d at 569.

      Brown also argues that the trial court erred in denying his request for an

instruction on the lesser-included offense of voluntary manslaughter on the basis that

the jury could have found Brown used excessive force in imperfect self-defense. State

v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002). Because, as explained

above, the trial court properly concluded that there was insufficient evidence to

support either perfect or imperfect self-defense as a matter of law, the trial court

properly declined this request for an instruction as well. State v. Owens, 65 N.C. App.

107, 109, 308 S.E.2d 494, 497 (1983); State v. Norman, 324 N.C. 253, 260, 378 S.E.2d

8, 12 (1989). Accordingly, we find no error in the trial court’s decisions to reject

Brown’s request for instructions on self-defense and the lesser-included offense of

voluntary manslaughter.




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                              Conclusion

We find no error in the trial court’s judgments.

NO ERROR.

Chief Judge McGEE and Judge ZACHARY concur.




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