                IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 335PA16

                                   Filed 6 April 2018

STATE OF NORTH CAROLINA

               v.

GYRELL SHAVONTA LEE




        On 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. Heard in the Supreme Court on 6 November

2017.


        Joshua H. Stein, Attorney General, by Amy Kunstling Irene, Special Deputy
        Attorney General, for the State.

        Glenn 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.


        NEWBY, Justice.

        This 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
                                     STATE V. LEE

                                   Opinion of the Court




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 stand-your-ground instructions.

      On 31 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




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                                    Opinion of the Court




at th[at] time.” The car ultimately parked three houses down from defendant’s

residence. Epps and several others exited the car.

      Defendant 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.

      After 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 first-degree murder.

      At 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


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                                   Opinion of the Court




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.”

       At the 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).

       Though 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


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                                   Opinion of the Court




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.

      At the 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 discretionary

review.

      Defendant 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-




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                                    Opinion of the Court




ground provision from the agreed-upon instructions on self-defense, the trial court’s

jury instructions constituted preserved error.

       “The jury charge is one of the most critical parts of a criminal trial.” State v.

Walston, 367 N.C. 721, 730, 766 S.E.2d 312, 318 (2014). “[W]here 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) (citations and emphasis omitted); see

State v. Guss, 254 N.C. 349, 351, 118 S.E.2d 906, 907 (1961) (per curiam) (“The jury

must not only consider the case in accordance with the State’s theory but also in

accordance with defendant’s explanation.”).

       Our statutes provide two circumstances in which individuals are justified in

using deadly force, thus excusing them from criminal culpability. Section 14-51.3 of

North Carolina’s General Statutes, entitled “Use of force in defense of person; relief

from criminal or civil liability,” provides:

                     (a)       A person is justified in using force, except
              deadly force, against another when and to the extent that
              the person reasonably believes that the conduct is
              necessary to defend himself or herself or another against
              the other’s imminent use of unlawful force. However, a
              person is justified in the use of deadly force and does not
              have a duty to retreat in any place he or she has the lawful
              right to be if either of the following applies:



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                                  Opinion of the Court




                          (1)    He or she reasonably believes that such
                                 force is necessary to prevent imminent
                                 death or great bodily harm to himself
                                 or herself or another.

                          ....

                     (b)   A person who uses force as permitted by this
             section is justified in using such force and is immune from
             civil or criminal liability for the use of such force . . . .

N.C.G.S. § 14-51.3 (2017) (emphases added).

      Section 14-51.2, entitled “Home, workplace, and motor vehicle protection;

presumption of fear of death or serious bodily harm,” provides that “[a] lawful

occupant within his . . . home, motor vehicle, or workplace does not have a duty to

retreat from an intruder,” id. § 14-51.2(f) (2017), and “is presumed to have held a

reasonable fear of imminent death or serious bodily harm to himself . . . or another

when using defensive force” in the case of “an unlawful and forcible entry,” id. § 14-

51.2(b) (2017). The relevant distinction between the two statutes is that a rebuttable

presumption arises that the lawful occupant of a home, motor vehicle, or workplace

reasonably fears imminent death or serious bodily harm when using deadly force at




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                                      Opinion of the Court




those locations under the circumstances in N.C.G.S. § 14-51.2(b). This presumption

does not arise in N.C.G.S. § 14-51.3(a)(1).1

       Under either statutory provision, a person does not have a duty to retreat, but

may stand his ground.2          Accordingly, when, as here, the defendant presents

competent evidence of self-defense at trial, the trial court must instruct the jury on a

defendant’s right to stand his ground, as that instruction informs the determination

of whether the defendant’s actions were reasonable under the circumstances, a

critical component of self-defense. See State v. Blevins, 138 N.C. 668, 670-71, 50 S.E.

763, 764 (1905) (“[The] necessity, real or apparent, [is] to be determined by the jury”

and the defendant “can have that necessity determined in view of the fact that he has




       1  Contrary to the opinion below, the phrase “any place he or she has the lawful right
to be” is not limited to one’s home, motor vehicle, or workplace, but includes any place the
citizenry has a general right to be under the circumstances. See, e.g., Guss, 254 N.C. at 351,
118 S.E.2d at 907; see also Research Div., N.C. Gen. Assembly, Summaries of Substantive
Ratified Legislation 2011, at 48 (Dec. 2011) (“A person, wherever located, has no duty to
retreat, and may use what force is necessary . . . .” (emphasis added)).

       2 In 2011 the General Assembly amended the law of self-defense in North Carolina,
Act of June 17, 2011, ch. 268, sec. 1, 2011 N.C. Sess. Laws 1002, 1002-04, to clarify that one
who is not the initial aggressor may stand his ground, regardless of whether he is in or
outside the home. Compare State v. Godwin, 211 N.C. 419, 422, 190 S.E. 761, 763 (1937)
(“When an attack is made with a murderous intent, the person attacked . . . may stand his
ground and kill his adversary, if need be.”), with State v. Pennell, 231 N.C. 651, 654, 58 S.E.2d
341, 342 (1950) (“[W]hen a person . . . is attacked in his own dwelling, or home, or place of
business . . . the law imposes upon him no duty to retreat before he can justify his fighting in
self-defense . . . .”).


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                                   Opinion of the Court




a right to stand his ground . . . .”); N.C.P.I.–Crim. 206.10 (A successful self-defense

claim requires, inter alia, a showing that “the defendant believed it was necessary to

kill the victim . . . to save [himself] from death or great bodily harm.”).

      Though the trial court here agreed to instruct the jury on self-defense under

N.C.P.I.–Crim. 206.10, it omitted the “no duty to retreat” language of N.C.P.I.–Crim.

206.10 without notice to the parties and did not give any part of N.C.P.I.–Crim.

308.10, the “stand-your-ground” instruction. While defendant offered ample evidence

at trial that he acted in self-defense while standing in a public street where he had a

right to be when he shot Epps, the trial court did not instruct the jury that defendant

could stand his ground. The State nonetheless contends that defendant did not object

to the instruction as given, thereby failing to preserve the error below and rendering

his appeal subject to plain error review only.

      When a trial court agrees to give a requested pattern instruction, an erroneous

deviation from that instruction is preserved for appellate review without further

request or objection.

             [A] request for an instruction at the charge conference is
             sufficient compliance with the rule to warrant our full
             review on appeal where the requested instruction is
             subsequently promised but not given, notwithstanding any
             failure to bring the error to the trial judge’s attention at the
             end of the instructions.




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                                  Opinion of the Court




State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988). Because the trial court

here agreed to instruct the jury in accordance with N.C.P.I.–Crim. 206.10, its

omission of the required stand-your-ground provision substantively deviated from the

agreed-upon pattern jury instruction, thus preserving this issue for appellate review

under N.C.G.S. § 15A-1443(a).

      Moreover, the record reflects a reasonable possibility that, had the trial court

given the required stand-your-ground instruction, a different result would have been

reached at trial. See State v. Ramos, 363 N.C. 352, 355-56, 678 S.E.2d 224, 227 (2009)

(applying “reasonable possibility” of “different result” standard to determine whether

erroneous instruction was prejudicial). During closing argument the State contended

that defendant’s failure to retreat was culpable. As such, the omission of the stand-

your-ground instruction permitted the jury to consider defendant’s failure to retreat

as evidence that his use of force was unnecessary, excessive, or unreasonable. See

State v. Smith, 360 N.C. 341, 346, 626 S.E.2d 258, 261 (2006) (The purpose of a jury

instruction “is to give a clear instruction which applies the law to the evidence” and

thus “assist the jury in understanding the case and in reaching a correct verdict.”

(quoting State v. Williams, 280 N.C. 132, 136, 184 S.E.2d 875, 877 (1971))).




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                                   Opinion of the Court




Accordingly, defendant is entitled to a new trial with proper instructions on self-

defense.3

      In sum, we conclude that by omitting the stand-your-ground provision from the

agreed-upon instructions on self-defense, the trial court’s jury instructions

constituted preserved error. Defendant has shown a reasonable possibility that, had

the trial court included the stand-your-ground provision in its instructions, a

different result would have been reached at trial.        Accordingly, we reverse the

decision of the Court of Appeals and remand this case to that court with instructions

to vacate defendant’s conviction and further remand this case to the trial court for a

new trial with proper instructions on self-defense and stand-your-ground.


      REVERSED AND REMANDED; NEW TRIAL.




      Chief Justice MARTIN concurring.

      This case is about what a man did in the few seconds after he saw his cousin

get shot. We now have to consider that man’s response to this violent event in light




      Because we resolve defendant’s appeal on this issue, we do not address his remaining
      3

arguments.

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                                 MARTIN, C.J., concurring



of the doctrines of self-defense and defense of another under our stand-your-ground

statutes.

      I agree with the majority’s ruling that the trial court erred by not instructing

the jury on defendant’s ability to lawfully stand his ground in self-defense. I therefore

fully join in the majority opinion. I write separately to note that defendant has also

argued that the trial court should have instructed the jury on defense of another, and

to observe that the trial court’s omission of an instruction on that defense also

constituted error.

       “[A] judge has an obligation to fully instruct the jury on all substantial and

essential features of the case . . . arising on the evidence.” State v. Harris, 306 N.C.

724, 727, 295 S.E.2d 391, 393 (1982). This obligation arises “[r]egardless of requests

by the parties,” id., and a trial court commits error if it fails to meet this obligation,

see State v. Todd, 264 N.C. 524, 531, 142 S.E.2d 154, 159 (1965). Our Court has

applied this standard specifically to jury instructions on both self-defense and defense

of another. See id.; State v. Montague, 298 N.C. 752, 755, 259 S.E.2d 899, 902 (1979).

Articulating a principle that should apply equally to defense of another, this Court

has stated that, “[w]here there is evidence that [a] defendant acted in self-defense,

the court must charge on this aspect even though there is contradictory evidence by

the State or discrepancies in [the] defendant’s evidence.” State v. Dooley, 285 N.C.

158, 163, 203 S.E.2d 815, 818 (1974); see also State v. Mash, 323 N.C. 339, 348, 372

S.E.2d 532, 537 (1988) (citing State v. McCray, 312 N.C. 519, 529, 324 S.E.2d 606,

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                                MARTIN, C.J., concurring



614 (1985)) (“When determining whether the evidence is sufficient to entitle a

defendant to jury instructions on a defense . . . , courts must consider the evidence in

the light most favorable to [the] defendant.”).

      Under our State’s common law, one could “kill in defense of another if one

believe[d] it to be necessary to prevent death or great bodily harm to the other ‘and

ha[d] a reasonable ground for such belief.’ ” State v. Perry, 338 N.C. 457, 466, 450

S.E.2d 471, 476 (1994) (quoting State v. Terry, 337 N.C. 615, 623, 447 S.E.2d 720, 724

(1994)). The reasonableness of the defender’s belief was “to be judged by the jury in

light of the facts and circumstances as they appeared to the defender at the time of

the killing.” Id. (quoting Terry, 337 N.C. at 623, 447 S.E.2d at 724).

      Two additional common law rules limited the scope of this doctrine. This Court

stated the first rule in State v. Gaddy: “[T]he right to defend another [could] be no

greater than the latter’s right to defend himself.” See State v. Gaddy, 166 N.C. 341,

346-47, 81 S.E. 608, 610 (1914). Under the second rule, which appeared in State v.

McAvoy and other cases, the initial aggressor in a conflict could not claim perfect self-

defense. See, e.g., State v. McAvoy, 331 N.C. 583, 595-96, 417 S.E.2d 489, 497 (1992)

(citing State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981)).           An

aggressor who started a fight without murderous intent, however, would still have

been entitled to claim imperfect self-defense. Id. at 596, 417 S.E.2d at 497 (citing

Norris, 303 N.C. at 530, 279 S.E.2d at 573). As a result, under the common law rules

in Gaddy and McAvoy, a defendant who intervened to defend someone who had

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                                 MARTIN, C.J., concurring



started a fight without murderous intent would have been entitled to a jury

instruction only on imperfect defense of another. If a defendant established imperfect

defense of another, a jury could not have acquitted him but could have convicted him

of voluntary manslaughter instead of murder. See id. (citing Norris, 303 N.C. at 530,

279 S.E.2d at 573).

      In 2011, however, the General Assembly enacted N.C.G.S. §§ 14-51.3 and

14-51.4, which at least partially abrogated—and may have completely replaced—our

State’s common law concerning self-defense and defense of another.

      Subsection 14-51.3(a) states that a person’s use of non-deadly force is justified

“when and to the extent that the person reasonably believes that the conduct is

necessary to defend himself or herself or another against [someone else’s] imminent

use of unlawful force.” N.C.G.S. § 14-51.3(a) (2017). That subsection then establishes

that a person is justified in using deadly force when that person is in a place that “he

or she has the lawful right to be,” id., and “reasonably believes that such force is

necessary to prevent imminent death or great bodily harm to himself or herself or

another,” id. § 14-51.3(a)(1).

      N.C.G.S. § 14-51.4 provides exceptions to the justifications for defensive force

set forth in subsection 14-51.3(a), stating that “[t]he justification[s] described in . . .

[section] 14-51.3 [are] not available to a person who used defensive force” in certain

enumerated circumstances. Id. § 14-51.4 (2017). Subsection 14-51.4(2) then gives



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                                MARTIN, C.J., concurring



one of these circumstances; it states that a person’s use of defensive force is not

justified when that person “[i]nitially provoke[d] the use of force against himself or

herself.” Id. § 14-51.4(2). This subsection does not create an exception to section

14-51.3, however, when a defendee—the person that a defendant acts to protect—

provokes a fight with non-deadly force and a defendant then intervenes to protect

that defendee from deadly force. In other words, when a defendant uses deadly force

to protect an initial aggressor who used non-deadly force against an attacker who

responds with deadly force, that defendant’s actions are still fully justified under

subsections 14-51.3(a)(1) and 14-51.4(2).

      This statutory framework thus appears to contradict the common law rules in

Gaddy and McAvoy when those rules are applied together, because it does not reduce

a defendant’s justification to imperfect defense of another in this context. That

defendant can rightly claim perfect defense of another. Nor does the only other

exception in section 14-51.4 reduce a defendant’s justification for the use of deadly

force stated in subsection 14-51.3(a)(1) from perfect to imperfect defense of another;

that exception states only that a person is not justified in using defensive force under

section 14-51.3 if the person “[w]as attempting to commit, committing, or escaping

after the commission of a felony.”       Id. § 14-51.4(1).   So, under this statutory

framework, a defendant who uses deadly force to protect an initial aggressor who

used non-deadly force against an attacker who responds with deadly force should be




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                                MARTIN, C.J., concurring



entitled to perfect self-defense, as long as that defendant was not attempting to

commit or committing a felony, or escaping after committing a felony, in the process.

       It is important to note the statutory limits of the justification defense in

subsection 14-51.3(a). At first glance, one might think that a defendant could defend

another against deadly force even when that other had initially provoked a fight with

deadly force. But that is not so. Because the second sentence of subsection 14-51.3(a),

in context, describes a heightened variant of the justification discussed by the first

sentence—a justification sufficient to cover deadly as well as non-deadly force—the

requirement from the first sentence that the hostile force being opposed be “unlawful”

should be imputed to the second sentence. Thus, no justification is available for using

deadly force to defend another against lawful force. If a defendee provokes a fight

with deadly force, then the use of deadly force by the opposing combatant would be

lawful.   It follows that a defendant would not be justified under subsection

14-51.3(a)(1) in using deadly force himself against that opposing combatant to protect

the defendee, as the defendant in that scenario would not be defending another

against unlawful force. The justification for deadly force set forth in subsection

14-51.3(a)(1) is inherently limited in this way. Cf. State v. Holloman, 369 N.C. 615,

628-29, 799 S.E.2d 824, 833 (2017) (concluding that, when an initial aggressor

provokes a fight using deadly force and the opposing combatant responds with deadly

force, that aggressor is not justified in using deadly force in response under N.C.G.S.

§ 14-51.4(2)(a)).

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                                      STATE V. LEE

                                 MARTIN, C.J., concurring



      Turning to the case at hand, defendant was entitled to a jury instruction on

perfect defense of another. Based on the evidence at trial, a jury could reasonably

conclude the following: Defendant saw his cousin, Jamieal Walker, being repeatedly

shot by Quinton Epps, after Walker had punched Epps in the face. Walker began to

run away, with Epps still shooting at him, and then Epps immediately turned his gun

toward defendant.     At that point, defendant shot Epps “to get him to drop his

weapon.” The fact that Epps momentarily turned his gun away from Walker did not

mean that Walker was instantly removed from mortal danger. Both Charles Bowser,

an eyewitness, and defendant himself testified that the entire sequence of Epps’

turning his gun away from Walker and toward defendant and defendant’s shooting

of Epps took, at most, “four seconds.” While the Court of Appeals leaned heavily on

the fact that Walker was already fatally wounded before defendant shot Epps, State

v. Lee, ___ N.C. App. ___, ___, 789 S.E.2d 679, 689 (2016), defendant could not have

known at that moment whether Walker’s injuries were fatal or what chance Walker

had of survival. Also, as the majority notes, defendant stated that he would have

shot Epps sooner if Epps and Walker had not been so close together during their fight.

I accept all of these facts as true for the purpose of deciding this issue.

      Given these facts, Epps used deadly force against Walker after Walker had

merely thrown a punch. That punch did not justify a reasonable belief on Epps’ part

that shooting Walker was necessary to prevent Epps from suffering death or great

bodily harm, so Epps himself did not act in lawful self-defense under subsection

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                                MARTIN, C.J., concurring



14-51.3(a)(1) when he shot Walker. This means that Epps’ use of deadly force was

unlawful, and defendant therefore could have defended Walker from it with deadly

force. Defendant was in a public street, where he had a lawful right to be, and,

because Epps had already shot Walker multiple times, defendant could have

reasonably believed that his own use of deadly force was necessary to save Walker

from death or further serious bodily injury. This satisfies the standard for the use of

deadly force in defense of another under subsection 14-51.3(a)(1). Thus, the trial

court erred by omitting a jury instruction on defense of another.

      In sum, the trial court did not instruct the jury on perfect defense of another,

even though defense of another under N.C.G.S § 14-51.3(a)(1) was a “substantial and

essential feature[ ] . . . arising on the evidence” in this case. See Harris, 306 N.C. at

727, 295 S.E.2d at 393. The trial court erred by not instructing the jury on this

defense. Defendant concedes that this issue was not properly preserved below, so this

Court should review the issue only for plain error. I do not need to address whether

the omission of this instruction rose to the level of plain error, however, as defendant

will receive a new trial under the majority’s ruling regardless.        If the same or

substantially similar evidence is presented at a future trial of defendant, the trial

court should instruct the jury on the law concerning perfect defense of another. The

jury should not be precluded from considering any reasonable explanation of

defendant’s actions right after he saw his cousin get shot.




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