NC Court of Appeals Confirms No Duty to Retreat Prior to Self-Defense

Posted by Sean P. CecilJun 07, 20170 Comments

Yesterday, in State v. Bass, the Court of Appeals ruled that a trial judge's refusal to instruct the jury regarding the absence of a duty to retreat is reversible error, and ordered a new trial for the Defendant. Mr. Bass was convicted after shooting  a man several times a couple weeks after that man had severely beaten him, breaking his jaw, among other injuries. At trial, the defendant testified that the man he shot had approached him aggressively and had a large knife, and he believed the man was going to beat him up again or worse. He testified that he shot the man because he was scared for his life. 

During the charging conference (where the lawyers and judge discuss jury instructions and the judge decides what instructions will be used) the trial judge ruled that the jury would not be instructed that the defendant had no duty to retreat prior to shooting, because the defendant was not in his home, workplace or vehicle. This failure (notably, over the defense lawyer's exception) was prejudicial to the defendant, ruled the Appellate Court, and the prejudice was exemplified by a jury question to the court regarding duty to retreat. The ruling described the trial court's instruction on duty to retreat were an "inaccurate and misleading statement of the statutes and case law" and that the Defendant had shown a "reasonable possibility that, had the error in question not been committed, a different result would have been reached" justifying a new trial on the charges. 

 Despite having already ruled that the Defendant was entitled to a new trial based upon jury instructions alone, the Court also agreed with him that the trial court's failure to allow the defense to present evidence of the "victim's" prior history of violence, and refusal to allow a defense continuance after the prosecution disclosed evidence of the violent history the night before trial, was reversible error. When a character trait is part of an essential element of claim or defense, proof of specific instances of conduct may be made. Evidence of a "victim's" history of violence may be relevant to establish that he was not in fact a victim but was the first aggressor. The Court found that the trial court's refusal to allow testimony regarding specific instances of the alleged victim's conduct was a  prejudicial denial of the Defendant's right to present a complete defense. The court ruled also that the defense should have been granted a continuance as requested, based upon the late disclosure of even more information relevant to the alleged victim's history of violence. 

For more information regarding the relevant law in North Carolina, visit our self-defense page

 The Bass case underscores the crucial importance of jury instructions to the outcome of a jury trial. One of the first things I do when I determine that a case is likely to result in a trial is to have a look at the pattern jury instructions and research whether there might be additional law that can be used to craft non-pattern instructions. In the trial of Trayvon Martin's killer, I strongly believe that the not guilty verdict was a result of the trial court's failure to provide a "first aggressor" instruction. I haven't researched it in a while, but Florida did have a statute that nullifies self-defense for people who cause the situation requiring defensive use of force. Similarly, North Carolina law provides that self-defense justification is not available in two situations:

1. To someone attempting to commit, committing, or fleeing a felony. 

2.  Self-defense is also unavailable to someone who initially provokes the use of force against himself, provided, that he may if either the force used by the provoked is so serious that the person using defensive force reasonably believes he is in imminent danger of death or serious bodily harm, has no means to retreat, and the use of force was the only way to escape the danger OR the person who used defensive force withdraws in good faith from the person provoked and indicates clearly that he desires to withdraw and terminate the use of force, but the person provoked continued or resumed the use of force. 

Self-defense can be complicated. It certainly is fact-specific. Police are not necessarily obligated to consider it when making an arrest or charging decision. Someone who anticipates being or has been contacted by police for a situation involving use of force should consult an attorney as soon as possible!