State v. Beal

• Decision Date: 02 January 2007
• Docket Number: No. COA06-19.,COA06-19.
• Citation: 638 S.E.2d 541
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Garland Scott BEAL.

638 S.E.2d 541

STATE of North Carolina v. Garland Scott BEAL.

No. COA06-19.

Court of Appeals of North Carolina.

January 2, 2007.

Appeal by defendant from judgment entered 15 August 2005 by Judge W. Russell Duke, Jr. in Lee County Superior Court. Heard in the Court of Appeals 11 October 2006.

Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State.

Adrian M. Lapas, Goldsboro, for defendant-appellant.

CALABRIA, Judge.

Garland Scott Beal ("defendant") appeals from a judgment entered upon a jury verdict finding him guilty of assault with a deadly weapon inflicting serious injury. We reverse and remand for a new trial.

On 5 March 2004, defendant returned home to a mobile home he shared with the owner, Vernon McIver ("McIver"), a man he had known since childhood. Defendant rented a room from McIver for the previous two to four months at a cost of $50 per week. Upon returning home, defendant found his brother, Jeffrey Beal, in the mobile home with McIver. The two men were drinking beer. Defendant joined them, and the three men continued drinking and talking. Eventually an argument erupted between McIver and defendant. McIver asked defendant to leave and defendant initially refused. Upon defendant's refusal, McIver walked across the street to his grandmother's home and called the police.

Defendant testified that he and his brother heard the call over a police scanner in the mobile home, and that after hearing the call he gathered his belongings and started to leave. Defendant testified that as he was coming out the front door, McIver returned and confronted him with a pitchfork. "[H]e juked at me and told me that I wasn't going anywhere now. That I was going to stay there and wait for the law," defendant testified.

Defendant testified that he retreated into the house and retrieved a machete McIver kept underneath the couch, then returned to confront McIver with it. "I went to the front door, and we proceeded to a sword fight with the [pitchfork and machete]," defendant stated. Defendant testified that the two fought until he knocked McIver off balance. Defendant stated that he then threw the machete from the step leading up to the trailer's front door. Defendant testified that he then started to leave but tripped over something in the yard. When he rolled over to retrieve his belongings, McIver was standing over him with the pitchfork and began stabbing him with it. "When he would jab, I would roll," defendant stated. Defendant testified that McIver swung the pitchfork and struck him, breaking off the pitchfork's handle. He claimed to have suffered minor injuries from the altercation. Defendant's brother provided testimony supporting defendant's version of events.

McIver testified to a different version of events. He testified that after defendant became argumentative, he told defendant to leave. When defendant refused, McIver walked across the street and used his grandmother's phone to call the police, then returned to the mobile home he shared with defendant. He testified that the police did not respond and defendant was becoming more argumentative, so he again walked across the street and called the police. "[W]henever I come back the second time, the door swung open and he jumped out with that machete," McIver stated. "[He] hit me in the top of the head, and knocked me to the ground. And there was a pitchfork lying there, and he was getting ready to come down on me again. And that's when I poked at him with the pitchfork, and he turned and run for the woods."

Defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury. The jury returned a verdict finding him guilty of the lesser offense of assault with a deadly weapon inflicting serious injury, a class E felony. Superior Court Judge W. Russell Duke, Jr., entered judgment upon the jury verdict and sentenced defendant to 37 months to 54 months in the North Carolina Department of Correction. From the judgment entered upon the jury's verdict, defendant appeals.

Defendant on appeal brings forth two assignments of error. Defendant initially argues that the trial court erred in refusing his request to instruct the jury that defendant had no duty to retreat from an assault within the curtilage of his own home. We agree.

"Where the defendant's or the State's evidence when viewed in the light most favorable to the defendant discloses facts which are `legally sufficient' to constitute a defense to the charged crime, the trial court must instruct the jury on the defense." State v. Marshall, 105 N.C.App. 518, 522, 414 S.E.2d 95, 97 (1992). So we review the evidence in the light most favorable to defendant and determine whether the evidence presented supported defendant's proposed instruction that he had no duty to retreat. This requires us to first define the law of self-defense by a person in his own home.

Ordinarily, when a person who is free from fault in bringing on a difficulty is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self defense, regardless of the character of the assault, but is entitled to stand his ground, to repel force with force, and to increase his force, so as not only to resist, but also to overcome the assault and secure himself from all harm.

State v. Johnson, 261 N.C. 727, 729-30, 136 S.E.2d 84, 86 (1964). The home has been held to extend to curtilage, including the yard around the dwelling. State v. Frizzelle, 243 N.C. 49, 51, 89 S.E.2d 725, 726 (1955).

In the case sub judice, defendant was a lawful resident of the dwelling where the altercation occurred. Although McIver was the owner of the mobile home, defendant rented a room from McIver and was a lawful occupant of the premises. As such, defendant had no duty to retreat from an assault on the premises so long as he was not responsible for "bringing on the difficulty." This is so even though McIver was also lawfully possessed of the premises and likewise had no duty to retreat from an assault. "[A] person is not obliged to retreat when he is assaulted while in his dwelling house or within the curtilage thereof, whether the assailant be an intruder or another lawful occupant of the premises." State v. Browning, 28 N.C.App. 376, 379, 221 S.E.2d 375, 377 (1976).

Defendant argues that by confronting him and threatening him with a pitchfork, McIver assaulted defendant with a deadly weapon. As such, the defendant contends that he was entitled to retrieve a weapon of his own and defend himself and was under no duty to retreat from the assault. An assault is defined as "an overt act or attempt, with force or violence, to do some immediate physical injury to the person of another, which is sufficient to put a person of reasonable firmness in fear of immediate physical injury." State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995). Here, defendant testified that as he attempted to leave his house, McIver confronted him in the doorway and "juked" or jabbed a pitchfork at him in a threatening manner, demanding he return to the home. The implication from such an act was clear: defendant would be stabbed with the pitchfork unless he immediately submitted and retreated back inside. This is an assault.

McIver, in defendant's version of events, was attempting to detain defendant until police arrived. Detention by a citizen of an individual suspected of criminal activity is allowed in limited situations, but no detention is allowed where the detaining citizen has no reason to believe a crime has been committed. Even where detention by a private citizen is allowed, the manner of the detention must be reasonable considering the offense involved and the circumstances of the detention. N.C. Gen.Stat. § 15A-404 (2005). "[A] private citizen should not be allowed to employ deadly force to detain a fleeing misdemeanant in circumstances under which an officer of the law could not have employed similar force to effect such an arrest." State v. Wall, 304 N.C. 609, 616, 286 S.E.2d 68, 73 (1982). Assuming arguendo that defendant was a trespasser, it would be unreasonable for McIver to detain a non-violent misdemeanant at the point of a pitchfork.

Further, our Courts have held that "`no man by the show of violence has the right to put another in fear and thereby force him to leave a place where he has a right to be.'" State v. Price, 271 N.C. 521, 526, 157 S.E.2d 127, 130 (1967) (quoting State v. Martin, 85 N.C. 508, 510 (1881)). Defendant argues that by extension, no man may forcefully prevent another man from leaving a place he has a right to leave. We agree with defendant's argument in this respect.

Our appellate courts have never been called upon to determine whether a pitchfork constitutes a deadly weapon, but our Supreme Court, in an ancient case, once upheld a conviction for assault where one of the defendants followed the victim and intimidated him by carrying a pitchfork. State v. Rawles, 65 N.C. 334 (1871). A deadly weapon is "an instrument which is likely to produce death or great bodily harm under the circumstances of its use...." State v. Joyner, 295 N.C. 55, 64, 243 S.E.2d 367, 373 (1978). We have held that whether an object is a deadly weapon depends on how it is used. State v. Parker, 7 N.C.App. 191, 171 S.E.2d 665 (1970). Under this formulation, numerous objects have been held to be deadly weapons solely due to the manner in which they were used. A metal cane has been held to be a deadly weapon if used to strike a blow. State v. Hensley, 91 N.C.App. 282, 371 S.E.2d 498 (1988). Fire has been held to be a deadly weapon when used to burn an occupied dwelling. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986). Fists have been held to be deadly weapons where the size of and condition of the parties merits such a holding. State v. Grumbles, 104 N.C.App. 766, 411 S.E.2d 407 (1991). Even a plastic bag has been held to be...