State v. Quick
| Decision Date | 31 December 2014 |
| Docket Number | No. COA14–758.,COA14–758. |
| Citation | 768 S.E.2d 201 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Tony Lee QUICK. |
Attorney General Roy Cooper, by Assistant Attorney General Nicholaos G. Vlahos, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant.
Defendant appeals the judgment entered after a jury convicted him of second degree murder. On appeal, defendant argues that the trial court committed plain error in failing to instruct on perfect or imperfect self-defense.
After careful review, we find no plain error.
Background
In May 2011, defendant Tony Quick (“defendant”) was dating Nicole Smith (“Nicole”). Nicole was Preston Barrett's (“Preston's”) half-sister. Preston lived with his mother and his sister Steshellie Barrett (“Stesh”) in Candor, North Carolina. Although Preston and defendant knew each other, they were not close friends.
On the evening of 14 May 2011, Stesh and Nicole spent time with defendant and Reggie Moore (“Reggie”), a friend of defendant's, at Reggie's house. Nicole spent the night with defendant; Reggie took Stesh home around midnight. The next morning, around 10:30 a.m., Stesh called Reggie and asked him to come see her. About 45 minutes later, she called Reggie back because Preston wanted to speak to Nicole. Preston reportedly told Nicole to get dressed and that he wanted to talk to her and defendant.
Sometime in the afternoon of 15 May, Reggie drove his car to Preston's house with defendant riding in the passenger seat and Nicole in the back. When they arrived at Preston's house, Stesh came out of the house and began speaking with Reggie through the driver's side window. Nicole got out of the car and started to walk into Preston's house. On the porch, Preston and Nicole spoke quickly and hugged. Preston came down off the porch and told defendant to get out of the car so that he could talk to him. According to Nicole, Preston told defendant: “Get out of the car, or I'm going to steal off on you.” According to Nicole, this meant that Preston was threatening to hit defendant if he did not get out of the car. However, Nicole claimed that Preston said it in a “joking” way.
Instead of getting out of the car, defendant beckoned Preston over to Reggie's car. Reggie was still in the driver's seat. Preston walked up to the passenger side of Reggie's car and rested his hands on the open passenger window. Nicole followed Preston out to Reggie's car and stood beside him while he spoke to defendant. Stesh was still standing beside the driver's side window. Nicole testified at trial that, at first, “there[ ][was] no sign of tension.” Then, Preston reached both of his arms inside the car and began “struggl[ing]” with defendant over something. Nicole heard Preston say, “hey,” and then she heard the first shot. Preston's shoulder dropped after the first shot, but he continued to reach into the car. A few seconds later, a second shot was fired. At this point, Nicole claimed that she saw the gun for the first time, jutting out the passenger window. According to Nicole, as Preston was falling to the ground, she heard two more shots.
Stesh also testified at trial. She claimed that, once defendant, Nicole, and Reggie arrived at her house, Preston kept telling defendant: “Get out of the car, man, I just want to talk to you.” After defendant refused to get out of the car, Preston walked up to defendant's side of the car and saw a pistol in defendant's lap. Stesh claimed that defendant lifted up his shirt to show Preston the gun. Preston told defendant that he was not “afraid” of the gun, and Stesh claimed that they started struggling over the gun before the first shot went off. After the first shot, Stesh ran into the house to grab her own gun. After she got her shotgun, Stesh came out of the house and fired the shotgun at them as they drove away.
Preston was pronounced dead at the scene. An autopsy revealed that Preston had been shot four times. One shot was to the upper part of Preston's left arm where the arm meets the shoulder. The concentration of soot around the wound indicated that the gun was about one to two inches from Preston when fired. Another gunshot wound was to the upper left chest and was the fatal shot. There was no soot around the wound ; however, Preston's t-shirt that he was wearing at the time he was shot had not been examined for the presence of soot. The other two gunshot wounds were to the left side of defendant's head and the left side of his back.
Defendant's trial began 11 March 2014. Defendant did not testify at trial. At the close of all the evidence, the trial court instructed the jury on second degree murder, voluntary manslaughter based on a “heat of passion” theory, involuntary manslaughter, and accident. On 13 March, the jury found defendant guilty of second degree murder. The trial court sentenced defendant to a minimum term of 145 months to a maximum term of 183 months imprisonment, a sentence within the presumptive range. Defendant appeals.
Arguments
Defendant's sole argument on appeal is that the trial court committed plain error in failing to instruct on self-defense. Specifically, defendant contends that a reasonable juror could have inferred that defendant shot Preston in self-defense after Preston threatened to hit him and wrestled defendant for control of the gun. Accordingly, defendant alleges that the trial court should have instructed the jury on perfect self-defense, which, if found by the jury, would result in a verdict of not guilty, and on voluntary manslaughter based on the theory of imperfect self-defense. In support of his argument, defendant points to the evidence showing that: (1) Preston initiated the confrontation by telling Nicole and defendant that he wanted to talk to them; (2) Preston threatened to hit defendant when defendant refused to get out of the car; (3) even after defendant showed Preston the gun, Preston refused to back off; (4) Preston tried to wrestle the gun away from defendant; and all the shots were fired in rapid succession. Based on the evidence of record, we conclude that defendant was not entitled to an instruction on perfect self-defense because all the relevant evidence tends to show that defendant was the aggressor in the fight. Although we do believe that defendant was entitled to an instruction on imperfect self-defense, defendant is unable to show that the trial court's failure to instruct on it constituted plain error.
Standard of Review
As to instructions on self-defense, our Supreme Court has noted that:
There are two types of self-defense: perfect and imperfect. Perfect self-defense excuses a killing altogether, while imperfect self-defense may reduce a charge of murder to voluntary manslaughter. For defendant to be entitled to an instruction on either perfect or imperfect self-defense, the evidence must show that defendant believed it to be necessary to kill his adversary in order to save himself from death or great bodily harm. In addition, defendant's belief must be reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness.
State v. Ross,338 N.C. 280, 283, 449 S.E.2d 556, 559–60 (1994) (internal quotation marks and citations omitted). In determining whether the trial court should give an instruction on self-defense, the evidence must be viewed in a light most favorable to the defendant. State v. Moore,363 N.C. 793, 796, 688 S.E.2d 447, 449 (2010).
However, because defendant failed to request an instruction on self-defense at trial, he must show plain error; the plain error standard is well-established:
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice-that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.
State v. Lawrence,365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
A defendant acts in perfect self-defense if, at the time of the killing, all four of the following elements are satisfied: (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and (2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
State v. Jackson,145 N.C.App. 86, 92, 550 S.E.2d 225, 230 (2001). In contrast, “[a]n imperfect right of self-defense is available to a defendant who 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 without murderous intent, and (2) might have used excessive force.” Id.
With regard to perfect self-defense, defendant is unable to establish all four elements because the evidence at trial tends to show that he was the aggressor in the altercation. Defendant willingly came to Preston's house armed with his pistol even though there was no evidence that Preston had threatened defendant prior to his arrival nor any evidence that it was necessary for defendant to arm himself for his protection. Furthermore, even once defendant arrived and Preston allegedly threatened to hit him, defendant remained at the scene even though he had plenty of opportunity to leave. In...
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