State v. Bass

• Decision Date: 26 October 2018
• Docket Number: No. 208A17,208A17
• Citation: 371 N.C. 456,371 N.C. 535,819 S.E.2d 322
• Parties: STATE of North Carolina v. Justin Deandre BASS
• Court: North Carolina Supreme Court

371 N.C. 456

371 N.C. 535

819 S.E.2d 322

STATE of North Carolina

v.Justin Deandre BASS

No. 208A17

Supreme Court of North Carolina.

Filed October 26, 2018

Joshua H. Stein, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State-appellant.

Lisa Miles, for defendant-appellee.

BEASLEY, Justice.

[371 N.C. 536]

In this case we consider whether the Court of Appeals erred in holding that the trial court committed prejudicial error by (1) omitting the relevant stand-your-ground language from jury instructions on self-defense, (2) excluding evidence at trial of specific incidents of the victim's violent past conduct, and (3) denying defendant's motion to continue. For the reasons stated below, we hold that the Court of Appeals erred with regard to the second and third issues. Accordingly, we affirm in part and reverse in part the decision of the Court of Appeals and remand this case for further proceedings.

On 4 July 2014, defendant Justin Deandre Bass and Jerome Fogg, the victim, engaged in a verbal altercation, which escalated to the point

[371 N.C. 537]

that defendant shot Fogg, severely injuring him. The night of the shooting was not defendant's first run-in with Fogg. Defendant and Fogg first met just two weeks before, on 23 June 2014, when Fogg instigated a fight with defendant. Defendant's and Fogg's accounts of the night they first met and the night defendant shot Fogg differ substantially.

23 June 2014 —Fogg Beats Defendant

On 23 June 2014, defendant encountered Fogg on the grounds of the Bay Tree Apartments in Raleigh, where defendant lived. According to Fogg, defendant began making disrespectful comments about Fogg. After ignoring the comments for some time, Fogg confronted defendant, who then said that he was, like Fogg, a member of the Piru Blood gang. When Fogg attempted to initiate the Piru handshake with defendant, defendant was unable to perform the correct gestures. Fogg asked defendant additional questions to determine if he was truly a Piru member, and when he was satisfied that defendant's claim was true, taught defendant the handshake. The men went their separate ways for a short time, but according to Fogg, defendant continued to speak about him in a disrespectful manner. When Fogg again confronted defendant, defendant pulled his pants up and raised his hands—gestures that implied to Fogg that defendant wanted to fight. Fogg obliged by throwing the first punch.

Defendant also testified at trial about the night he first met Fogg. According to defendant, he was celebrating his birthday by drinking vodka in the parking lot of the Bay Tree Apartments when Fogg approached him and demanded that he perform the Piru handshake, which he was unable to do. Fogg left and returned a short time later, again demanding that defendant perform the handshake. When defendant could not, Fogg immediately punched him in the nose. Defendant testified that he never made disrespectful comments or gestures toward Fogg and that he never hit Fogg back. Fogg beat defendant severely, breaking his jaw in three places and landing one blow powerful enough to cause defendant to "fly through the air and roll." Defendant required surgery for his injuries, and his jaw was wired shut for approximately seven weeks, during which he could not speak and was restricted to a liquid diet. After the beating, defendant began carrying a handgun to protect himself from Fogg.

4 July 2014—Defendant Shoots Fogg

On 4 July 2014, two weeks after he was beaten by Fogg, and while his mouth was still wired shut from the incident, defendant was watching fireworks with friends at the Bay Tree Apartments. Defendant testified

[371 N.C. 538]

that at some point after the fireworks ended, he saw Fogg arrive at the apartment complex. Defendant walked to a different part of the complex, hoping to avoid Fogg. Nonetheless, Fogg approached defendant aggressively, accused him of "talking junk," and taunted him, saying, "I hope you enjoy drinking the Ensure for six weeks." As Fogg approached defendant, defendant saw a large knife on his hip. According to defendant, Fogg told defendant that he "had five minutes to get away from him. And if [defendant] didn't get away from him within five minutes[,] he was going to beat [defendant] up." Defendant attempted to move away, walking from the breezeway where he was standing to a grassy area nearby, but Fogg told him instead to "get on the concrete." Defendant pulled his gun from his pocket and pointed it at Fogg, hoping that he would leave. Fogg asked if defendant intended to shoot him and started reaching for his knife and moving toward defendant. Defendant cocked the gun and began shooting as Fogg advanced. Defendant stopped shooting and ran when he saw Fogg grab his chest and start stumbling. Defendant fled to Virginia for approximately two weeks before returning to North Carolina, where he was arrested.

According to Fogg's testimony, he was at the Bay Tree Apartments visiting friends on 4 July 2014 when defendant approached him and threatened to "pop [Fogg's] mother****ing ass." Fogg testified that he never removed his knife from its holster on his hip. Defendant pulled out the gun and immediately shot Fogg three times. As a result of the shooting, Fogg underwent multiple surgeries and spent a month in the hospital, two weeks of which he was in a coma.

On 9 September 2014, defendant was indicted in Wake County for attempted first-degree murder of Jerome Fogg. A superseding indictment dated 18 November 2014 added a second count of assault with a deadly weapon with intent to kill inflicting serious injury. Defendant pleaded not guilty and gave notice that he intended to pursue a defense of self-defense.

The case was heard during the 10 December 2014 criminal session of Superior Court, Wake County, before Judge Paul C. Ridgeway.¹ At the conclusion of the trial, the jury found defendant not guilty of attempted first-degree murder but convicted him of assault with a deadly weapon

[371 N.C. 539]

inflicting serious injury. That same day, the trial court sentenced defendant, a Level III offender, to a presumptive-range term of thirty to forty-eight months.

Defendant appealed his conviction, and a divided panel of the Court of Appeals found reversible error and granted defendant a new trial based on its decision with respect to three issues: the trial court's denial of defendant's request for certain jury instructions related to the doctrine of self-defense; its exclusion of evidence of specific acts of violence committed by Fogg against individuals other than defendant; and its denial of defendant's motion to continue based on defense counsel's request to investigate new evidence disclosed by the State on the eve of trial. See State v. Bass , ––– N.C. App. ––––, 802 S.E.2d 477 (2017). The State now appeals the Court of Appeals’ decision with respect to each issue on the basis of Judge Bryant's dissent below.

I.

On 24 October 2014, defendant gave notice of his intent to pursue the defense of self-defense, and throughout the trial, presented evidence tending to support his self-defense claim. At the charge conference following the close of evidence, defense counsel requested that the jury charge include language from Pattern Jury Instruction 308.45 providing, in relevant part, that "the [d]efendant has no duty to retreat in a place where the [d]efendant has a lawful right to be. [And] [t]he Defendant would have a lawful right to be in his place of residence." N.C.P.I.–Crim. 308.45 (June 2012) (footnotes, brackets, and parentheses omitted). Believing that the "no duty to retreat" provisions apply only to an individual located in his own home, workplace, or motor vehicle, the trial court concluded the proposed instruction was inapplicable to defendant and declined to deliver it.

After deliberations began, the jury asked for clarification on a defendant's duty to retreat. Outside the presence of the jury, defense counsel again requested that the trial court deliver a "no duty to retreat" instruction, this time pointing to Pattern Jury Instruction 308.10, providing that

If the defendant was not the aggressor and the defendant was [in the defendant's own home] [on the defendant's own premises] [in the defendant's place of residence] [at the defendant's workplace] [in the defendant's motor vehicle] [at a place the defendant had a lawful right to be], the defendant could stand the defendant's ground and repel force with force regardless of the character of the assault being made upon the defendant.

[371 N.C. 540]

However, the defendant would not be excused if the defendant used excessive force.

N.C.P.I.–Crim. 308.10 (June 2012) (brackets in original) (footnote omitted). Specifically, defense counsel asked the trial court to deliver the instruction utilizing the bracketed phrase "at a place the defendant had a lawful right to be." Again, the trial court concluded that, because defendant was not in his home or place of residence, workplace, or car, the "no duty to retreat" instruction did not apply. After hearing from counsel, the trial court instructed the jury that "by North Carolina statute, a person has no duty to retreat in one's home, one's own premises, one's place of residence, one's workplace, or one's motor vehicle. This law does not apply in this case."

With regard to this issue, the Court of Appeals held that, based on the plain language of the relevant statutes, the trial court committed reversible error in omitting the "no duty to retreat" language from its instructions. Bass , ––– N.C. App. at ––––, 802 S.E.2d at 484. The dissent agreed with the majority's statutory construction but felt constrained by a prior Court of Appeals decision to the contrary. Id. at ––––, 802 S.E.2d at 487 (Bryant, J., dissenting) (citing State v. Lee , ––– N.C. App. ––––, ––––, 789 S.E.2d 679, 686 (2016), rev'd , 370 N.C. 671, 811 S.E.2d 563 (2018) ). The State argues that the Court of Appeals erred in granting defendant a new trial based...