State Carolina v. William David Whetstone.

• Decision Date: 21 June 2011
• Docket Number: No. COA10–1046.,COA10–1046.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolinav.William David WHETSTONE.

711 S.E.2d 778

STATE of North Carolina

v.William David WHETSTONE.

No. COA10–1046.

Court of Appeals of North Carolina.

June 21, 2011.

OPINION TEXT STARTS HERE

Appeal by Defendant from judgment entered 11 March 2010 by Judge J. Gentry Caudill in Catawba County Superior Court. Heard in the Court of Appeals 24 February 2010.

Roy Cooper, Attorney General, by Ebony J. Pittman, Assistant Attorney General, for the State.

Faith S. Bushnaq, Charlotte, for Defendant.

THIGPEN, Judge.

William David Whetstone (“Defendant”) was convicted of assault with a deadly weapon inflicting serious injury. The evidence at trial supported a jury instruction of self-defense. The trial court gave the jury instruction that provided Defendant could use force reasonably appearing necessary to Defendant to protect Defendant from bodily injury or offensive physical contact rather than the instruction that provided Defendant could use force necessary to protect Defendant from death or great bodily harm. We must determine whether the instruction given constituted error. We conclude the trial court gave the incorrect instruction and grant Defendant a new trial.

I: Factual and Procedural Background

The evidence of record in this case tends to show the following: Jeremy Dwayne Dula (“Dula”) frequently spent nights at the Defendant's residence. Dula had previously been in the Marine Corps and was trained in hand-to-hand combat. Defendant testified that Dula told him he had assaulted two government officials in the military and that was why he was discharged.

According to Dula, on the evening of 31 July 2008 and the early morning hours of 1 August 2008, he and Defendant went to a bar and both consumed alcoholic beverages. When they returned to Defendant's house, they got into an argument and Defendant assaulted Dula by striking him and stabbing him with a knife.

Dula was hospitalized at Frye Regional Medical Center for one week for treatment of the wounds he sustained in the altercation. Dula also underwent follow-up treatment, including treatment for his punctured colon and kidney and treatment of a damaged nerve in his arm.

Defendant testified and recounted his version of the events on the evening of 31 July 2008 and the early morning of 1 August 2008. That evening, according to Defendant, he and Dula went to the bar and both consumed alcoholic beverages. When they returned to Defendant's house, Dula called his girlfriend and began arguing with her on the phone. When Defendant told Dula his yelling on the telephone might disturb the neighbors, Dula threw Defendant on the floor and told Defendant that he would kill him. After getting up from the floor, Defendant called Dula's girlfriend and told her she needed to come to Defendant's residence and pick up Dula. When Defendant got off the phone, Dula attacked him from behind, hit him in the back of his head, forced and held him to the ground, and started choking him. Defendant grabbed a knife that had fallen from a table and started swinging back at Dula with the knife. Defendant testified he was afraid of Dula.

On 11 March 2010, the jury found Defendant guilty of assault with a deadly weapon inflicting serious injury. On the same day, Defendant was adjudged to be a prior record level III offender and sentenced, consistent with the jury's verdict, to 33 to 49 months incarceration. From this judgment, Defendant appeals.

II: Jury Instruction

In Defendant's argument on appeal, Defendant contends that the trial court committed plain error by charging the jury with a “self-defense instruction that related to assaults not involving deadly force” when Defendant “stood accused of assault with a deadly weapon with intent to kill inflicting serious injury.” Based on the circumstances of this particular case, we agree that the trial court committed error.

A: Standard of Review

In Defendant's argument on appeal, Defendant contends that the trial court committed plain error by charging the jury with a “self-defense instruction that related to assaults not involving deadly force” when Defendant “stood accused of assault with a deadly weapon with intent to kill inflicting serious injury.” Based on the circumstances of this particular case, we agree.

Defendant did not properly preserve this issue for appeal ¹ but requests that the Court review for plain error. “Plain error analysis applies to evidentiary matters and jury instructions.” State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634 (2009). “A prerequisite to our engaging in a plain error' analysis is the determination that the instruction complained of constitutes error' at all[;][t]hen, [b]efore deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.' ” State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert denied, 479 U.S. 836, 107 S.Ct. 133, 93 L.Ed.2d 77 (1986) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (internal quotation omitted)). Our Courts have further stated, with regard to plain error review, the following:

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) the burden of showing that an error arose to the level of plain error. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).

“It is elementary that the trial court, in its instructions to the jury, is required to declare and explain the law arising on the evidence.” State v. Anderson, 40 N.C.App. 318, 321, 253 S.E.2d 48, 50 (1979) (citing N.C. Gen.Stat. § 15A–1232). Our Supreme Court has held “when there is evidence from which it may be inferred that a defendant acted in self-defense, he is entitled to have this evidence considered by the jury under proper instruction from the court.” State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). “Where there is evidence that defendant acted in self-defense, the court must charge on this aspect even though there is contradictory evidence by the State or discrepancies in defendant's evidence.' ” Anderson, 40 N.C.App. at 321, 253 S.E.2d at 50 (quoting State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974)). Thus, “if the defendant's evidence, taken as true, is sufficient to support an instruction for self-defense, it must be given even though the State's evidence is contradictory.” State v. Moore, 363 N.C. 793, 796, 688 S.E.2d 447, 449 (2010) (citation omitted). “[T]he evidence is to be viewed in the light most favorable to the defendant.” Id.

B: Pattern Jury Instruction 308.40

The instruction given by the trial court in this case was Pattern Jury Instruction 308.40 ², which states, in pertinent part, the following:

... Even if you find beyond a reasonable doubt that the defendant assaulted the victim, the assault would be justified by self-defense under the following circumstances:

(1) If the circumstances, at the time the defendant acted, would cause a person of ordinary firmness to reasonably believe that such action was necessary or apparently necessary to protect that person from bodily injury or offensive physical contact, and

(2) The circumstances created such belief in the defendant's mind. You determine the reasonableness of the defendant's belief from the circumstances appearing to the defendant at the time.

Additionally, even if the defendant believed there was a right to use force, the amount of force would be limited to reasonable force—not excessive force. The right to use force extends only to such force reasonably appearing to the defendant under the circumstances, necessary to protect the defendant from bodily injury or offensive physical contact. In so determining, you should consider the circumstances you find to have existed from the evidence. You should consider (the size, age and strength of the defendant as compared to the victim), (the fierceness of the assault, if any, upon the defendant), (whether the victim possessed a weapon), (the reputation, if any, of the victim for danger and violence) (and) (describe other circumstances supported by the evidence). Again, you determine the reasonableness of the defendant's belief from the circumstances appearing to the defendant at the time. (Emphasis added).

C: Pattern Jury Instruction 308.45

The instruction Defendant contends should have been given is Pattern Jury Instruction 308.45 ³, which states, in pertinent part, the following:

If the circumstances would have created a reasonable belief in the mind of a person of ordinary firmness that the assault was necessary or appeared to be necessary to protect that person from death or great bodily harm, and the circumstances did create such belief in the defendant's mind at the time the defendant acted, such assault would be justified by self-defense. You, the jury, determine the reasonableness of the defendant's belief from the circumstances appearing to the defendant at the time.

A defendant does not have the right to use excessive force. The defendant had the right to use only such force as reasonably appeared necessary to the defendant under the circumstances to protect the defendant from death or great bodily harm. In making this determination, you should consider the circumstances as you find them to have existed...