An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-1413
                         NORTH CAROLINA COURT OF APPEALS

                                Filed: 5 August 2014


STATE OF NORTH CAROLINA

      v.                                      Cleveland County
                                              Nos. 09 CRS 57002–03, 57100–01
QUINTON O’BRIAN SURRATT



      Appeal by Defendant from Judgments entered 30 May 2013 by

Judge Nathaniel J. Poovey in Cleveland County Superior Court.

Heard in the Court of Appeals 23 April 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Jill Ledford Cheek, for the State.

      Cheshire Parker Schneider & Bryan, PLLC, by John Keating
      Wiles, for Defendant.


      STEPHENS, Judge.


                      Evidence and Procedural History

      This case arises from a robbery committed on 15 December

2009.      At   trial,    the   State’s    evidence     tended     to    show   the

following:

      Lance Smith, Thomas Herring III, Orlando Littlejohn, and

Appollonia Eley were at Christopher Parrott’s house in Shelby,
                                         -2-
North Carolina on 15 December 2009. Christopher Parrott was in

his bedroom playing video games. Parrott worked as a rapper and

an employee in his mother’s restaurant. He also sold marijuana

out    of     his   home,   a    fact   which    was     commonly    known    in     the

community.

       Around 10:00 a.m. on 15 December 2009, Trumaine Jefferies,

Jonavan Hopper, and Defendant Quinton O’Brian Surratt (together,

“the    trio”)      went    to    Parrott’s      house     under     the    guise    of

purchasing marijuana. They gained entry into the house and went

to Parrott’s bedroom. Once there, the trio pulled out guns and

took   marijuana,      cash,     clothes,      two   PlayStation      3    video    game

consoles, a television, and some shoes. As the trio was leaving,

Jefferies held Parrott and the others in the home at gunpoint

while Defendant and Hopper put the stolen items in the back of

their vehicle.

       While Defendant and Hopper were putting the items in the

vehicle, Parrott lunged at Jefferies to recover the gun. Parrott

was    able    to   gain    possession    of    the    weapon,      and    Hopper    and

Defendant opened fire from the automobile. Parrott was injured

during the shooting.
                                      -3-
      Jefferies got up and went to the automobile with Defendant

and Hopper. Parrott was placed in Eley’s Volvo and taken to the

hospital. Parrott died later that day.

        Immediately    after   the    robbery,   the     trio     contacted    Keon

Ross and Arthiando Phillips and rode with them to Greenville,

South Carolina. There they lived in a hotel until 17 December

2009,   when   they    were    apprehended.      After      their    arrest,    law

enforcement officers      found marijuana, handguns,                PlayStation     3

consoles, and clothing inside their room. Herring, Smith, and

Littlejohn identified Defendant from photographic lineups.

      Following   completion     of    the   State’s     evidence,      Defendant

presented contradictory evidence. According to his testimony and

the   testimony   of   Jeffries,      the    events    on    15     December   2009

occurred as follows:

      The trio went to Parrott’s house to buy marijuana, not to

rob anyone. Defendant was the only one of the trio left in the

house when Hopper and Jefferies took the stolen items to put in

the   car.   Parrott   lunged    at    Defendant,      which      resulted     in   a

scuffle. Parrott was on top of Defendant and grabbed a gun. When

Parrott prepared to shoot, Jefferies and Hopper opened fire.

After Parrott was hit, Defendant was helped up and left with

Hopper and Jefferies.
                                            -4-
       Defendant testified that he did not steal anything and he

did not shoot anyone. Defendant and Jefferies both testified

that,    after       leaving    Parrott’s    house,     the     trio   promptly      left

Shelby and went to Greenville, South Carolina where they were

apprehended. On cross-examination, Defendant admitted stating in

a recorded conversation with Phillips that he did not want to

talk     over    the    phone       about   his   warrants.       Over    Defendant’s

objection,       the    prosecutor        asked   the     following      question      in

connection with the recorded conversation: “If you’re innocent,

why     does    it     matter       if   you’re   being     recorded?”         Defendant

responded that he “didn’t want to make it worse than it already

was.”

       Following       closing      arguments,    Defendant      requested       a   jury

instruction on “self-defense or . . . defense of others.” The

trial court denied that request on grounds that the evidence

would     not    “support       a    self[-]defense       instruction      under      any

scenario.”       The    jury     returned    verdicts      of    guilty    of     felony

breaking and entering, felony conspiracy to commit robbery with

a dangerous weapon, robbery with a dangerous weapon, and first-

degree    murder       under     the     felony   murder      rule     based    on    the

underlying felony of armed robbery. The court imposed a life

sentence without parole for the murder conviction and 8 to 10
                                       -5-
months     imprisonment    for   felonious        breaking   and    entering.     The

court      then    arrested   judgment       with    respect       to   Defendant’s

convictions for robbery with a dangerous weapon and conspiracy

to commit robbery with a dangerous weapon. Defendant gave notice

of appeal in open court.

                                  Discussion

      On appeal, Defendant argues that the trial court erred when

it   (1)    denied   his   request   for     an    instruction     on   defense   of

another      and     (2)   overruled     Defendant’s         objection     to     the

prosecutor’s question regarding the recorded conversation.                        We

find no prejudicial error.

      I. Jury Instruction on Defense of Another

      Defendant argues that the trial court improperly denied his

request for a jury instruction on defense of another as applied

to the charge of felony murder because “the robbery ended when

the [trio] left the bedroom, and . . . Parrot initiated a new

encounter when . . . he followed the [trio] and proceeded to

become the aggressor by lunging for the gun, gaining possession

of the gun, and popping up to shoot,” creating a situation where

perfect defense of another would be applicable to excuse the

killing. Without that error, Defendant contends, the jury “might

have acquitted [him] of the murder charge and convicted him only
                                    -6-
of the charges of felonious breaking or entering, robbery with a

dangerous   weapon,   and   conspiracy      to   commit   robbery   with    a

dangerous weapon.” We disagree.

     “[Arguments]     challenging     the    trial    court’s    decisions

regarding jury instructions are reviewed de novo by this Court.

An   instruction    about   a   material    matter   must   be   based     on

sufficient evidence.” State v. Osorio, 196 N.C. App. 458, 466,

675 S.E.2d 144, 149 (2009).

                 First-degree murder by reason of felony
            murder is committed when a victim is killed
            during   the   perpetration    or   attempted
            perpetration of certain enumerated felonies
            or a felony committed or attempted with the
            use of a deadly weapon. In felony murder,
            the   killing   may,   but   need   not,   be
            intentional. There must, however, be an
            unbroken chain of events leading from the
            attempted felony to the act causing death so
            that the homicide is part of a series of
            events forming one continuous transaction.

State v. Gibbs, 335 N.C. 1, 51–52, 436 S.E.2d 321, 350 (1993)

(citation and internal quotation marks omitted), cert. denied,

512 U.S. 1246, 129 L. Ed. 2d 881 (1993).

     As a general rule, a defendant in North Carolina may be

excused for a murder under a theory of perfect self-defense if,

at the time of the killing:

            (1) it appeared to [the] defendant and he
            believed it to be necessary to kill the
            deceased in order to save himself from death
                                       -7-
              or great bodily harm; and

              (2) [the] 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) [the] 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) [the] 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.

              Imperfect   self-defense   arises  when   the
              defendant   reasonably    believed   it   was
              necessary to kill the deceased in order to
              save himself from death or great bodily
              harm, but [the] defendant, although without
              murderous intent, was the aggressor or used
              excessive force. One who exercised the right
              of imperfect self-defense in killing an
              adversary   remains   guilty   of  at   least
              voluntary manslaughter.

State v. Martin, 131 N.C. App. 38, 44–45, 506 S.E.2d 260, 265

(citations and internal quotation marks omitted; italics added),

disc. review denied, 349 N.C. 532, 526 S.E.2d 475 (1998). In

addition, “one may lawfully do in another’s defense only what

the   other    might   lawfully   do   in    his   own   defense.”   State   v.
                                     -8-
McLawhorn,   270   N.C.   622,     629,    155   S.E.2d   198,   204   (1967).

Therefore,

           [i]n order to establish either perfect or
           imperfect defense of another, the evidence
           must show that it appeared to the defendant
           and he believed it necessary to kill the
           deceased in order to save another from death
           or great bodily harm. It must also appear
           that the defendant’s belief was reasonable
           in that the circumstances as they appeared
           to him at that time were sufficient to
           create such a belief in the mind of a person
           of    ordinary   firmness.    The    relevant
           distinction between the two defenses is that
           imperfect defense of another arises when the
           first two elements are present but either
           the third or the forth element is absent.

State v. Perry, 338 N.C. 457, 466–67, 450 S.E.2d 471, 476–77

(1994) (citations omitted; emphasis modified).

    When a defendant is charged with first-degree murder under

a theory of felony murder, however,

           neither perfect nor imperfect self-defense
           is available [as an excuse]. In felony
           murder cases, self-defense is available only
           to the extent that perfect self-defense
           applies to the relevant underlying felonies.
           Imperfect self-defense is not available as a
           defense to felonies underlying a felony
           murder charge.

Martin,   131   N.C.   App.   at   45,     506   S.E.2d   at   265   (citation

omitted; emphasis added).

           [T]he purpose of the felony murder rule is
           to deter even accidental killings from
           occurring  during  the   commission  of  a
                                        -9-
           dangerous felony. To allow self-defense,
           perfect or imperfect, to apply to felony
           murder would defeat that purpose, and if a
           person is killed during the perpetration or
           attempted perpetration of a felony, then the
           defendant is guilty of first-degree felony
           murder   —   not  second-degree   murder  or
           manslaughter. It is only certain applicable
           underlying felonies that can be subject to
           an instruction on perfect self-defense.

State v. Richardson, 341 N.C. 658, 668–69, 462 S.E.2d 492, 499

(1995) (emphasis added).

    In    this     case,    Defendant    was   convicted   of   first-degree

murder under the felony murder rule based on armed robbery as

the underlying felony. Defendant was not convicted of first-

degree    murder       on   other   grounds     (i.e.,   premeditation    and

deliberation). Contrary to Defendant’s contention, the record

contains no evidence tending to show that the chain of events

involving the robbery had come to an end by the time of the

shooting. On appeal, Defendant argues that the trial court erred

by not instructing on defense of another because the jury “might

have acquitted [Defendant] of the murder charge and convicted

him only of the charges of felonious breaking and entering,

robbery   with     a    dangerous   weapon,    and   conspiracy   to   commit

robbery with a dangerous weapon.” (Emphasis added). He does not

argue that the theory of perfect               defense of another      somehow

applies to negate the crime of armed robbery or, in line with
                                           -10-
his testimony at trial, that he did not participate in the crime

and, thus, that the trial court erred by instructing the jury on

armed     robbery.    Defendant         only   contends   that       the   trial    court

erred in failing to instruct on defense of another because the

jury might have changed its verdict that he was guilty of murder

if   it   knew     that     “the   law    might   recognize      a    defense      to   the

killing.”1

      As our appellate courts have made abundantly clear, the

doctrine of self-defense does not                  excuse a charge of              first-

degree murder under the felony murder theory. Richardson, 341

N.C. at 668–69, 462 S.E.2d at 499; Martin, 131 N.C. App. at 45,

506 S.E.2d at 265. Because “one may lawfully do in another’s

defense     only     what    the    other      might   lawfully      do    in   his     own

defense,” McLawhorn, 270 N.C. at 629, 155 S.E.2d at 204, we must

also hold that an instruction on perfect defense of another is

similarly     unavailable          to    defend   against   first-degree           murder

under the felony murder theory. See McLawhorn, 270 N.C. at 629,

155 S.E.2d at 203–04; see also Martin, 131 N.C. App. at 44–45,

1
  As discussed above, the law will not excuse a killing when
committed in the course of a felony even if the defendant has
some colorable argument that self-defense was appropriate as it
relates to the murder. The law will only excuse such a killing
if perfect self-defense or perfect defense of another somehow
applies to negate the underlying felony — here, the armed
robbery.
                                          -11-
506 S.E.2d at 265. Therefore, an instruction on perfect defense

of another is only applicable to the charge of felony murder

where   it    might     negate     the    relevant      underlying       felony.       See

McLawhorn,     270     N.C.   at   629,    155    S.E.2d      at   203–04;    see     also

Martin, 131 N.C. App. at 44–45, 506 S.E.2d at 265. Here, that

felony is armed robbery. Since Defendant does not argue that

perfect      defense     of    another      somehow      works      to   negate       his

conviction of armed robbery, we conclude that the trial court

did not err in declining to instruct the jury on defense of

another.2 Accordingly, Defendant’s argument is overruled.

     II. Self-Incrimination

     Defendant        next    argues      that    the    trial      court     committed

prejudicial error in violation of his constitutional privilege

against      self-incrimination          and     his    due    process       rights    by



2
  Even if Defendant had argued that a theory of self-defense
would work to excuse the underlying felony of armed robbery,
recent case law from this Court indicates that he would have
been unsuccessful. See State v. Evans, __ N.C. App. __, __, 747
S.E.2d 151, 155 (2013) (holding that the trial court did not err
in omitting an instruction on self-defense when the defendant
was charged with first-degree murder on the basis of the felony
murder rule where the underlying felonies were attempted
robberies with a dangerous weapon) (citing State v. Jacobs, 363
N.C. 815, 822, 689 S.E.2d 859, 864 (2010) (“As to felony murder,
self-defense is available only to the extent that it relates to
applicable underlying felonies. We fail to see how [the]
defendant could plead self-defense to a robbery the jury found
he had attempted to commit himself.”) (emphasis added)).
                                  -12-
overruling his objection to the prosecutor’s question on cross-

examination “about why it mattered that [Defendant’s] phone call

from the jail was being recorded if he [were] innocent.” We

disagree.

                 It is well-settled that de novo review
            is ordinarily appropriate in cases where
            constitutional rights are implicated.      A
            violation of the defendant’s rights under
            the Constitution of the United States is
            prejudicial unless the appellate court finds
            that it was harmless beyond a reasonable
            doubt. The burden is upon the State to
            demonstrate, beyond a reasonable doubt, that
            the error was harmless.

State v. Tate, 187 N.C. App. 593, 599, 653 S.E.2d 892, 897

(2007) (citations and internal quotation marks omitted).

    At trial, the following relevant colloquy occurred between

Defendant and the prosecutor regarding the jailhouse phone call:

            Q. Where in that phone call      do you   tell
            Arthiando Phillips that you      didn’t   have
            anything to do with this?

            A. I didn’t tell him.

            Q. In fact —

            A. Because he already knew it.

            Q. He already knew?

            A. Yes.

            Q. How did he know?
                       -13-
A. Because if you knew me,           you   know   I
wouldn’t do nothing like that.

Q. If who knew you?

A. They   knew   I   wouldn’t   do   nothing   like
that.

Q. Well, let’s talk about that conversation
between you and Arthiando. You state[d] to
him everybody in the room was asleep. The
next thing I knew the door was kicked in,
and we got guns in our face; is that right?

A. Yes, ma’am.

Q. How did they know y’all was there is what
he responds; do you remember that?

A. Yes, ma’am.

Q. You said, man, I don’t even know. They
had . . . some other detectives with them;
is that correct?

A. Yes, ma’am.

Q. So nowhere in that conversation that we
talked about so far do you indicate at all
that you had nothing to do with this, and
you didn’t want the two of them with you; is
that right?

A. Yes, ma’am.

Q. Then you go on to talk about                what
warrants you have; is that right?

A. Yes, ma’am.

Q. You state I got about five. I don’t want
to talk about it over the phone. Why didn’t
you want to talk about it over the phone?
                                    -14-
              A. ‘Cause for reason like this.

              Q. For reasons like what?

              A. Being recorded.

              Q. If you’re innocent, why does it matter if
              you’re being recorded?

                                    * * *

              [Counsel for Defense]: Objection.

              The Court: Overruled.

              [Counsel for Defense]: Violation        of    fifth
              amendment privilege, Your Honor.

              The    Court: . . .       The     objection      is
              overruled. . . .

                                    * * *

              A. Can you repeat [the question] again?

              Q. Yes. If you’re innocent, why didn’t you
              want to talk about it over the phone?

              A. ‘Cause I didn’t want to make it worse
              than it already was.

              Q. You didn’t what; I’m sorry?

              A. I didn’t want to make the situation worse
              than it already was.

    Defendant argues that the prosecutor’s questioning “stepped

over the line”       in violation of        “the privilege against self-

incrimination . . . when she asked why [Defendant] decided to be

silent   if    he   were   innocent.”   Defendant   further   asserts   that
                                             -15-
“[he] affirmatively exercised his right to silence in the face

of the State’s accusations when he said that he did not want to

talk about the warrants against him,” likening the question to

“asking why an arrested defendant might decline to speak to law

enforcement if he were innocent.” Assuming without deciding that

the prosecutor’s question could have constituted a violation of

Defendant’s      right       against       self-incrimination,         the       State    has

demonstrated that such error was harmless beyond a reasonable

doubt.

    Here,        the       evidence    presented       at    trial      overwhelmingly

established        that      Defendant       participated       in     the       underlying

felonies    of     breaking     and    entering,       robbery       with    a   dangerous

weapon,    and     conspiracy         to    commit    robbery    with        a   dangerous

weapon.     Multiple          eyewitnesses          described        Defendant       as    a

participant in the robbery, and testimony by law enforcement

officers placed Defendant in the Greenville hotel room with the

stolen goods and the other members of the trio, who Defendant

admits were involved in the robbery. The implication from the

prosecutor’s question that Defendant might be more likely to be

guilty because he was not inclined to talk about his warrants

would not have substantially affected the jury’s weighing of the

evidence.     As       a    result,        any   violation   resulting           from     the
                              -16-
prosecutor’s question was harmless beyond a reasonable doubt.

Accordingly, Defendant’s argument is overruled.

    NO PREJUDICIAL ERROR.

    Judges GEER and ERVIN concur.

    Report per Rule 30(e).
