We note that Cruz has since been affirmed by our Supreme Court. State v. Cruz, 364 N.C. 417, 700 S.E.2d 222 (2010). In Cruz, this Court reviewed the defendant's appeal challenging the trial court's refusal to instruct on imperfect self-defense after instructing the jury on perfect self-defense.
"An instruction on imperfect self-defense should be given where a defendant 'reasonably believes it necessary to kill the deceased to save himself from death or great bodily harm even if defendant (1) might have brought on the difficulty, provided he did so without murderous intent, and (2) might have used excessive force.'" State v. Cruz, 203 N.C. App. 230, 236, aff'd, 364 N.C. 417 (2010) (quoting State v. Mize, 316 N.C. 48, 52 (1986)). Here, the court of appeals determined that even the testimony in the case that was most favorable to petitioner did not tend to support petitioner's theory of voluntary manslaughter or imperfect self-defense.
By contrast, whether the evidence presented at trial is sufficient to support a jury instruction on a defense or a lesser-included offense is a question of law we review de novo. See State v. Cruz , 203 N.C. App. 230, 242, 691 S.E.2d 47, 54, aff'd , 364 N.C. 417, 700 S.E.2d 222 (2010) (de novo review applicable to whether evidence was sufficient to support a self-defense instruction); State v. Edwards , 239 N.C. App. 391, 393, 768 S.E.2d 619, 621 (2015) (de novo review applicable to whether evidence was sufficient to support instructions on duress or necessity); State v. Matsoake , 243 N.C. App. 651, 657, 777 S.E.2d 810, 814 (2015) ("A trial court's decision not to give a requested lesser-included offense instruction is reviewed de novo on appeal."). ¶ 19 North Carolina General Statute § 15A-1234 provides:
Whether evidence offered at trial is sufficient to warrant a jury instruction is a question of law; "therefore, the applicable standard of review is de novo ." State v. Cruz , 203 N.C. App. 230, 242, 691 S.E.2d 47, 54, aff'd per curiam , 364 N.C. 417, 700 S.E.2d 222 (2010). To support an acting in concert instruction, the State must provide sufficient evidence that the defendant (1) was "present at the scene of the crime" and (2) "act[ed] [ ] together with another who [did] the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime."
This Court's review of the jury instructions as a whole is conducted de novo . See State v. Cruz , 203 N.C. App. 230, 235, 691 S.E.2d 47, 50, aff'd per curiam , 364 N.C. 417, 700 S.E.2d 222 (2010) ("Our Court reviews a trial court's decisions regarding jury instructions de novo ."). The trial court must instruct the jury on self-defense if there is any evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for defendant to kill his adversary in order to protect himself from death or great bodily harm.
A. Standard of Review “Whether evidence is sufficient to warrant an instruction on self-defense is a question of law; therefore, the applicable standard of review is de novo. ” State v. Cruz, 203 N.C.App. 230, 242, 691 S.E.2d 47, 54 (citing State v. Lyons, 340 N.C. 646, 662–63, 459 S.E.2d 770, 778–79 (1995), aff'd, 364 N.C. 417, 700 S.E.2d 222 (2010) ). The trial court's choice of jury instructions rests within its discretion and will not be overturned absent a showing of abuse of discretion.
However, it is axiomatic that “[w]e review questions of law de novo.” State v. Khan, 366 N.C. 448, 453, 738 S.E.2d 167, 171 (2013) (citing In re Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) ). “Whether evidence is sufficient to warrant an instruction on self-defense is a question of law; therefore, the applicable standard of review is de novo. ” State v. Cruz, 203 N.C.App. 230, 242, 691 S.E.2d 47, 54 (citing State v. Lyons, 340 N.C. 646, 662–63, 459 S.E.2d 770, 778–79 (1995) ), aff'd, 364 N.C. 417, 700 S.E.2d 222 (2010). Similarly, the question of whether a defendant is entitled to an instruction on the defense of duress or necessity presents a question of law, and is reviewed de novo.
This Court reviews de novo a trial court's decisions regarding jury instructions. State v. Cruz, 203 N.C.App. 230, 235, 691 S.E.2d 47, 50 (citing State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009)), aff'd, 364 N.C. 417, 700 S.E.2d 222 (2010). We first summarily address the State's contention that defendant did not preserve this issue for appellate review.
This "Court reviews a trial court's decisions regarding jury instructions de novo." State v. Cruz, ___ N.C. App. ___, ___, 691 S.E.2d 47, 50 (citing State v. Osorio, ___ N.C. App. ___, ___, 675 S.E.2d 144, 149 (2009)), aff'd, 364 N.C. 417, 700 S.E.2d 222 (2010). As a general rule, "[t]he theory of self-defense entitles an individual to use `such force as is necessary or apparently necessary to save himself from death or great bodily harm. . . . A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief.'"