Opinion
No. COA06-1718.
Filed February 19, 2008.
Robeson County No. 04 CRS 53644.
Appeal by defendant from judgment entered 27 July 2006 by Judge Gary L. Locklear in Robeson County Superior Court. Heard in the Court of Appeals 29 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General Michael D. Youth, for the State. L. Jayne Stowers for defendant-appellant.
Defendant Timmy Lynn Jones appeals from his conviction of assault with a deadly weapon inflicting serious injury. Defendant primarily argues on appeal that the trial court erred in denying his request for an instruction on self-defense. Because the evidence, when viewed in the light most favorable to defendant, establishes that defendant voluntarily entered the fight, we hold the trial court properly declined to instruct on self-defense.
Facts
The State's evidence tended to show the following facts. At the time of the alleged assault, defendant was living with his mother. Larry Oxendine, defendant's uncle, lived across the street, while Billy Locklear lived next door. On 29 May 2004, Locklear approached defendant while he was in his mother's yard and began arguing with defendant about $20.00 that Locklear had lent defendant the previous day. Oxendine saw the confrontation and took Locklear to his house so that Locklear could cool off. When Locklear returned to his house, however, he again approached defendant, who was still outside, and demanded his money. The men argued, and Locklear threatened to "cut the tires off" defendant's car if he did not repay the money. Locklear further testified that, after the threat, he turned to leave and was suddenly struck in the head. He turned back around and saw that defendant had a stick in his hand. According to Locklear, defendant struck him in the head a second time as Locklear was falling to the ground. Locklear did not know how many times defendant ultimately struck him.
Locklear was taken to the hospital where he was diagnosed with a depressed skull fracture and subdural hematoma. He underwent brain surgery for removal of a blood clot underneath the skull. Locklear was in a coma for four days and was put on life-support for three days. As a result of the blow to his head, Locklear has experienced left-side weakness and is prescribed medicine to prevent seizures and pain.
On 7 March 2005, defendant was indicted for assault with a deadly weapon inflicting serious injury. At trial, defendant presented evidence that after Oxendine broke up the initial altercation with Locklear, defendant stayed outside working on his car. Oxendine began mowing defendant's mother's grass, but ran out of gas. Oxendine asked defendant to go to the store to get gas for the lawn mower. When defendant returned and pulled into his mother's driveway, Locklear approached the passenger side of defendant's car. Defendant drove slowly up the drive, with Locklear walking beside the car, cursing and arguing until defendant sped up the drive away from Locklear.
Defendant pulled the car under a shelter and began working on the inside of the car, while Oxendine got the gas can out of the car. Locklear came running toward the car, telling defendant that he had better have Locklear's money before dark or he would kill defendant, burn down his mother's building, and burn up defendant's car. Locklear was standing at the passenger door, but as defendant started to get out of the car, Locklear moved around the back of the car with his hand in his pocket. Defendant reached into the car and removed an ax handle, telling Locklear not to pull his hand out of his pocket because, according to defendant, he was afraid Locklear had a knife. Defendant testified that he hit Locklear on the arm to keep Locklear from pulling his hand out of his pocket and, when Locklear continued to try to pull his hand out of the pocket, defendant struck him again. The second blow glanced off Locklear's shoulder and hit Locklear's head. Defendant testified that when Locklear fell to the ground, a pocketknife fell out of Locklear's pocket. The trial court denied defendant's request for an instruction on self-defense. The jury found defendant guilty of assault with a deadly weapon inflicting serious injury, and the trial court sentenced defendant to a presumptive range sentence of 53 to 73 months imprisonment. Defendant timely appealed to this Court.
I
Defendant first contends that the trial court erred by denying his request for an instruction on self-defense. Our Supreme Court has explained:
The right to act in self-defense rests upon, necessity, real or apparent, and a person may use such, force as is necessary or apparently necessary to save, himself from death or great bodily harm in the lawful, exercise of his right of self-defense. A person may, exercise such force if he believes it to be necessary, and has reasonable grounds for such belief. The, reasonableness of his belief is to be determined by, the jury from the facts and circumstances as they, appeared to the accused at the time.
State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). Nevertheless, "the right of self-defense is only available to a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so." Id. See also State v., Hunter, 315 N.C. 371, 374, 338 S.E.2d 99, 102 (1986) (holding that "a person is entitled under the law of self-defense to harm another only if he is without fault in provoking, or engaging in, or continuing a difficulty with another" (internal quotation marks omitted)).
The trial court is required to instruct the jury on self-defense, even without a special request, "when, but only when, there is some construction of the evidence from which could be drawn a reasonable inference that the defendant assaulted the victim in self-defense." State v., Lewis, 27 N.C. App. 426, 433, 219 S.E.2d 554, 559 (1975), disc. review denied, 289 N.C. 141, 220 S.E.2d 799 (1976). In making this determination, the evidence is viewed in the light most favorable to the defendant. State v. Hudgins, 167 N.C. App. 705, 709, 606 S.E.2d 443, 446 (2005) ("For a jury instruction to be required on a particular defense, there must be substantial evidence of each element of the defense when `the evidence [is] viewed in the light most favorable to the defendant. . . .'" (quoting State v. Ferguson, 140 N.C. App. 699, 706, 538 S.E.2d 217, 222 (2000), disc. review denied, 353 N.C. 386, 547 S.E.2d 25 (2001))).
Defendant's own testimony indicates that Locklear was on the passenger side of the car when defendant first started getting out of his car. According to defendant, he reached back into the car to get the ax handle when he saw Locklear moving around the back of the car. Defendant testified, however, that when he hit Locklear, they were at the trunk of defendant's car, necessarily meaning that defendant walked towards Locklear at the back of the car with his ax handle.
We note that defendant also called Oxendine to testify in support of his defense. Oxendine claimed that defendant and Locklear were 30 feet from the car when the incident occurred.
In State v. Randolph, 228 N.C. 228, 232, 45 S.E.2d 132, 135 (1947), the Supreme Court reviewed similar facts and held that the trial court properly did not instruct on self-defense because the defendant voluntarily entered the fight. In Randolph, the defendant acknowledged that the victim and the defendant were in their vehicles across the street from each other and that when the victim got out of his car with a tire iron, the defendant pulled out a knife, got out of his truck, and went to meet the victim in the street. Id. The Court held: "In the light of [the defendant's] admission, it is clear that [the defendant] entered the fight voluntarily and without lawful excuse. Hence, there is no error in the refusal of the trial judge to submit his plea of self-defense to the jury." Id.
Similarly, in Lewis, the defendant testified that as she was driving her car, her ex-husband was pursuing her. 27 N.C. App. at 428, 219 S.E.2d at 556. When she was unable to elude him, she parked her car, took out a gun because she feared her ex-husband also had a gun, and approached the window of his truck. Id. As the two of them argued, the ex-husband got of his truck and advanced on the defendant. Id. at 428-29, 219 S.E.2d at 556. They struggled, and the defendant shot her ex-husband, resulting in his death. Id., 219 S.E.2d at 556-57. This Court concluded that "[n]o construction of the evidence" supported the giving of a self-defense instruction. Id. at 433, 219 S.E.2d at 559. See also Hunter, 315 N.C. at 374, 338 S.E.2d at 102 (holding that no self-defense instruction was required when uncontradicted evidence established that after the victim's assault of defendant had ended, defendant armed herself and walked over to the victim to continue the confrontation); State v. Hall, 89 N.C. App. 491, 494, 366 S.E.2d 527, 528-29 (1988) ("In the present case, defendant refused the request of his wife to get back into his van and admitted returning to the van to secure the shotgun. He then approached the victim with the gun. This evidence indicates defendant was not without fault in bringing on the affray and voluntarily and aggressively took himself into a situation in which he well knew that he or the other man would probably use deadly force." (internal quotation marks omitted)).
Defendant's description of what occurred in this case is materially indistinguishable from the above cases. Defendant chose to arm himself with an ax handle and approach Locklear. Thus, he "voluntarily and without lawful excuse" entered the physical altercation with Locklear. Accordingly, the trial court did not err in refusing to instruct the jury as to self-defense.
II
Defendant next contends that the trial court erred by excluding from evidence a prior inconsistent statement made by Larry Oxendine that was given to the police immediately following the commission of the offense. The report of the investigating officer, as read at trial by Detective Clark, stated that on the day of the offense, Oxendine told the Detective that "when he looked back at [defendant and Locklear], the suspect was getting out of his vehicle with the ax handle and the victim was saying I'm going to kill you." At trial, however, Oxendine testified, "If there was a threat made, I didn't hear it." Subsequently, defense counsel called Detective Clark as a witness in order to have Detective Clark read his entire report into evidence. The trial court, however, sustained the State's objection and excluded any statements in the report that conflicted with Oxendine's trial testimony.
The State contends that the trial court properly excluded the report because defense counsel did not ask Oxendine about his statement to Detective Clark. The law, however, imposes no such requirement: "`When the witness's prior statement relates to material facts in the witness's testimony, extrinsic evidence may be used to prove the prior inconsistent statement without calling the inconsistencies to the attention of the witness.'" State v. Larrimore, 340 N.C. 119, 145-46, 456 S.E.2d 789, 803 (1995) (quoting State v. Whitley, 311 N.C. 656, 663, 319 S.E.2d 584, 589 (1984)).
Nevertheless, defendant has failed to establish that he was prejudiced by the exclusion of Oxendine's prior inconsistent statement. N.C. Gen. Stat. § 15A-1443(a) (2005) provides: "A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." Here, defendant argues that he was prejudiced because Oxendine was the only witness other than defendant and Locklear, and the question whether Locklear threatened defendant was material to defendant's defense of self-defense. Since we have held that the trial court properly declined to instruct the jury on self-defense, Oxendine's statement could not have had any effect on the verdict. We, therefore, overrule this assignment of error.
We note further that, in any event, the prior inconsistent statement would not have been admissible as substantive evidence on the question of self-defense. See State v. Durham, 175 N.C. App. 202, 207, 623 S.E.2d 63, 67 (2005). As a result, the statement would only have undermined Oxendine's credibility. Since defendant relied upon other aspects of Oxendine's testimony, we do not believe that the omission of the prior inconsistent statement meets the standard of N.C. Gen. Stat., § 15A-1443(a).
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).