Opinion
No. COA00-235
Filed 15 May 2001
Homicide — manslaughter — defense of home — porch as part of home
There was no error in a prosecution for voluntary manslaughter in the court's instruction on the curtilage of defendant's home where defendant contended that the court erred by failing to instruct the jury that the front porch was part of defendant's home and thus included in the right to self-defense under N.C.G.S. § 14-51.1. The jury was instructed that defendant's actions are excused if death occurred while he was preventing forcible entry and, when the jury asked whether the front porch was part of the home or inside the home, the court replied that a front porch "is a part of the home" and "is not inside the home." This instruction is sufficient read in context.
Judge HUNTER dissenting.
Appeal by defendant from judgment entered 16 September 1999 by Judge B. Craig Ellis in Forsyth County Superior Court. Heard in the Court of Appeals 19 February 2001.
Attorney General Michael F. Easley, by Special Deputy Attorney General James P. Longest, Jr., for the State.
Donald K. Tisdale, Sr., for defendant-appellant.
Defendant appeals from judgment entered 16 September 1999 based on the jury's verdict finding him guilty of voluntary manslaughter. Defendant contends that the trial court erred in its charge to the jury concerning the curtilage of defendant's home. We disagree.
The evidence tended to show the following: On 10 July 1998 James Hilton came to defendant's home in search of Deirdre Schuler, a prostitute. Ms. Schuler lived next door to defendant. Hilton, who seemed intoxicated, began yelling Schuler's name, after which a fight ensued between Hilton and defendant on defendant's porch. During the tussle, defendant pulled out a knife. The two fell over the porch bannister onto the grass. At some point Hilton was fatally stabbed. Defendant testified that a few days earlier, Hilton had told defendant that Hilton was going to "blow [defendant's] head off." Ms. Schuler testified that defendant started the fight by hitting Hilton on the head. Another witness, Mr. Spencer Lee Wilson, testified that the fight started when Hilton attempted to forcibly enter defendant's home and defendant struck him. Dr. Patrick Lantz, the forensic pathologist who performed the autopsy, testified that the fatal stab wound was not consistent with a fall. Defendant was charged with second degree murder and convicted of voluntary manslaughter.
At the charge conference, defendant requested that the jury be instructed on self-defense. Defendant further requested that the court give a special instruction on defendant's right to defend himself pursuant to G.S. § 14-51.1. The trial court agreed to give the instructions and twice instructed on self-defense as follows:
If the defendant was not the aggressor and he was on his own premises, he could stand his ground and repel force with force regardless of the character of the assault made upon him; however, the defendant would not be excused if he used excessive force.
Further the trial court stated:
If the defendant killed the victim to prevent forcible entry into his place of residence or to terminate the intruder's unlawful entry, the defendant's actions are excused and he is not guilty. The State has the burden of proving from the evidence beyond a reasonable doubt that the defendant did not act in a lawful defense of his home.
The defendant was justified in using deadly force if, (1) such force was being used to prevent a forcible entry into the defendant's place of residence; and (2) the defendant reasonably believed that the intruder might kill or inflict serious bodily harm to the defendant or others in the place of residence; and (3) the defendant reasonably believed that the degree of force he used was necessary to prevent a forcible entry into his place of residence.
A lawful occupant within a place of residence does not have the duty to retreat from an intruder in these circumstances. It is for you, the jury, to determine the reasonableness of the defendant's belief from the circumstances as they appeared to the defendant at the time.
After instructing the jury the trial court inquired of counsel as to whether "there [were] any requests for additions or corrections to the charge." Neither party made requests. During the jury's deliberations, it asked whether the front porch was "a part of the home or inside the home." The trial court allowed argument by the parties, and instructed the jury that the "front porch is a part of the home," and "a front porch is not inside the home."
Defendant argues that the trial court committed prejudicial error when it failed to instruct the jury that the front porch was part of the home's curtilage and thus covered under G.S. § 14-51.1. Because we believe the substance of the instructions read in context was clear, we disagree.
Defendant does have a right to "stand his ground" to prevent an intruder from entering.
(a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder in the circumstances described in this section.
(c) This section is not intended to repeal, expand, or limit any other defense that may exist under the common law. G.S. § 14-51.1 (Reg. Sess., 1994). The trial court's instruction was substantially similar to this statute. This Court has held that "[a]n inaccuracy in the [jury] instruction will not be held prejudicial error when it is apparent from the charge, construed contextually, that the jury could not have been misled." State v. Lankford, 31 N.C. App. 13, 17, 228 S.E.2d 641, 644 (1976); Houston v. Rivens, 22 N.C. App. 423, 427, 206 S.E.2d 739, 742 (1974). We believe that when the trial court instructed the jury that "[i]f the defendant killed the victim to prevent forcible entry into his place of residence or to terminate the intruder's unlawful entry, the defendant's actions are excused and he is not guilty," the substance of the law of curtilage was given. The jury was instructed that if death occurred while the defendant was preventing forcible entry, the defendant's actions are excused. Additionally, the trial court instructed the jury that
[i]f the defendant was not the aggressor and he was on his own premises, he could stand his ground and repel force with force regardless of the character of the assault made upon him; however, the defendant would not be excused if he used excessive force.
Thus, the instruction included the curtilage in the area within which a defendant has the right to "stand his ground." The defendant argues that the question raised by the jury required further explanation. The jury asked whether the front porch was "a part of the home or inside the home." The trial court replied that the "front porch is a part of the home," and "a front porch is not inside the home." When read in context this instruction is sufficient.
Defendant argues that there is no duty to retreat from attacks made within the curtilage of the home. State v. Frizzelle, 243 N.C. 49, 51, 89 S.E.2d 725, 726 (1955). "[C]urtilage of the home will ordinarily be construed to include at least the yard around the dwelling house as well as the area occupied by barns, cribs, and other outbuildings." Id.
Defense argues that the gist of the jury's question is whether the privilege not to retreat extends to the front porch. The trial court instructed the jury that when a person is on his own premises he has no duty to retreat. Always, a person has the right to use only the force necessary so as to "overcome the assault and secure himself from all harm." G.S. § 14-51.1; State v. Johnson, 261 N.C. 727, 729, 136 S.E.2d 84, 86 (1964). Since there was no instruction stating a circumstance where this defendant (a) had a duty to retreat or (b) was authorized to use force other that what was reasonably necessary to repel the assault, on this record we hold that further clarification was unnecessary.
Accordingly we conclude that in the trial there was
No error.
Judge CAMPBELL concurs.
Judge HUNTER dissents.