State v. Withers
| Decision Date | 05 September 2006 |
| Docket Number | No. COA05-1241.,COA05-1241. |
| Citation | 633 S.E.2d 863 |
| Parties | STATE of North Carolina v. Joe Louis WITHERS. |
| Court | North Carolina Court of Appeals |
Joe Louis Withers (defendant) was convicted of first degree murder of Terrell Walker (Walker) in a judgment entered 7 April 2005. The trial court sentenced defendant to life imprisonment without parole.
At trial, the State's evidence tended to show the following. Ronald Hayes (Hayes) testified he was at defendant's home with defendant, Timothy McCoy (McCoy), and Rashay Latonya Saunders Lockett (Lockett) on 19 March 2004. Defendant and McCoy left defendant's home and Hayes stayed with Lockett. Hayes testified that after defendant and McCoy left, Walker came to defendant's home, "pulled out some dope and . . . put it on the end table, and . . . started counting money." Hayes saw Walker sell drugs in defendant's home.
Hayes testified that when defendant and McCoy returned, Walker started "foulmouthin[g]" two women who had arrived at defendant's home with Andy Graham (Graham), and defendant told Walker to leave. Walker did not leave but instead threatened defendant by saying, "I'll kick your ass." Walker stood over defendant in an attempt to scare defendant. Defendant went to get his rifle and Hayes and McCoy "[wrestled]" Walker out of defendant's home. When Walker left, defendant put down his rifle.
Walker then started kicking the front door from outside and looking through the windows at the top of the door. Defendant picked up his rifle and walked towards the door. McCoy grabbed the rifle from defendant, and the rifle went off inside the house, hitting the air conditioner. Hayes testified that
[e]verybody ducked, and [defendant] stepped out, he just stepped right outside the door on the porch. That's when [defendant] told [Walker], he said, "I told you to leave, but you don't believe I'll do nothin[g] to you," and that's when I heard the first shot. I didn't count the shots after that.
McCoy testified that when defendant asked Walker to leave defendant's home, Walker "kept cussin[g], called [defendant] an old bastard, you son-of-a-bitch, f____ you, you're a wangster, I'm a gangster, and all of that s____ to [defendant]." McCoy heard Walker tell defendant he was going to "kick [defendant's] ass" and saw Walker tower over defendant in an attempt to scare defendant.
McCoy testified that Graham escorted Walker out of defendant's home, but Walker then kicked the door repeatedly and looked through the windows at the top of the door. Defendant got his rifle and McCoy stood in front of the door and told defendant that he would not let defendant go outside. Defendant's rifle misfired, hitting the air conditioner, and McCoy got out of the way. McCoy testified:
Q. What happened after you got out of the way?
A. [Defendant] opened the front door up, opened the screen door, [Walker] was still standing on the porch. And [defendant] just stood there looking at [Walker]. [Defendant] ha[d] the barrel of the [rifle] in his hand, like this. [Defendant] didn't have his hand on the trigger. He was talking to [Walker]. He said, "Boy, you don't think I'll shoot you?" [Walker] was still there talking s____, and I was like,
Then [Walker] walked out in the yard. [Defendant] walked on the sidewalk. [Walker] stood between [defendant's] car and his car. [Walker] told [defendant], "F____ you." [Defendant] said, "Boy, you still don't think I'll fire your ass up, do you?" And [Walker] said, "F____ you," and [defendant] fired [at] him."
McCoy testified that after defendant shot Walker the first time, Walker said he was "going to get his s____," which McCoy understood to mean Walker was going to get his gun. McCoy testified that defendant shot Walker again.
Graham testified that defendant was in the doorway of defendant's home when defendant fired the first shot at Walker. Lockett, who was also at defendant's home on 19 March 2004, testified as follows:
Q. Okay. Do you recall telling Detective Hosier that you heard [defendant] saying, "Oh, you're reaching for your s____, go ahead and reach for your s____"?
A. Yeah.
Q. Did you hear [defendant] say that?
A. Yeah, [defendant] said, "Oh, what [are] you reaching for."
Defendant testified that Walker had tried to sell drugs out of defendant's home three or four times prior to 19 March 2004. Each time, defendant had told Walker he could not sell drugs out of defendant's home. Walker came to defendant's home at approximately 8:00 or 8:30 p.m. on 19 March 2004 and defendant told him to leave. Walker left defendant's home to sell drugs next door.
Defendant left his house and later returned to find Walker "sitting in the living room on the couch, with a bunch of dope on [defendant's] table, cutting it up and bagging it up." Defendant told Walker he could not sell drugs in defendant's home and told Walker to leave, but Walker refused. Defendant got his rifle while Hayes and McCoy removed Walker from defendant's home. Once Walker was outside, defendant put down his rifle. However, shortly thereafter, Walker began kicking the door and looking through the window into defendant's home. As he was kicking the door, defendant testified Walker said:
Defendant picked up his rifle, went to the door and told McCoy that When defendant opened the door, Walker had stepped off the porch and was standing next to his car, about seven or eight feet away from defendant. Defendant again told Walker to leave. Defendant testified:
[Walker] started towards me, and [there is] a pole there on the corner of the, uh, the porch. [Walker] started towards me. [There is] a bush there. [Walker's] car, uh, the bushes [were] at the back of his car, and there's a pole there to hold up the porch. He started toward me, and he reached up to that pole, and he slipped. And when he slipped, I fired, [because] I didn't know whether he was grabbing me. I didn't know what was going on.
Q. Okay. Why did you shoot [Walker]?
A. [Because] I was scared that he was fixin[g] to do something to me, fixin[g] to kill me or whatever. I was afraid.
Defendant further testified that he shot Walker again when Walker was stooping over his open trunk about four or five feet away from defendant.
Q. Okay. Why did you shoot [Walker] the second time?
A. Because when he [came] out [of] that trunk, I didn't know what he was coming out of that trunk with, [because] I knew he had an AK-47.
Q. Okay. Did you see a gun in his hand when he turned?
A. I saw something. I won't swear to it that it was a gun. I saw something. It was a quick flash, and that was it.
. . .
Q . . . . how long had you known [Walker]?
A. No more than six months.
Q. In the prior months, had you seen him with an AK-47?
[THE STATE]: Objection.
A. Yes, sir, I did.
THE COURT: Overruled.
. . .
Q. Okay. But you did see him with an assault —
A. I [saw] him the same night I got [my .22 automatic rifle].
Q. And this was how many weeks before this incident?
A. A month or so before then.
Defendant testified he was sixty-eight years old, disabled, five feet, eleven inches tall, and weighed 155 pounds. The medical examiner testified that Walker was twenty-six years old, six feet, six inches tall, and weighed 272 pounds.
At the jury instruction conference, defendant requested an instruction on self-defense and the trial court stated that it would instruct the jury on self-defense using N.C.P.I.—Crim. 206.10. Defendant also requested an instruction on defense of habitation in accordance with N.C.P.I.—Crim. 308.80. Defense counsel further stated:
Judge, I would ask the Court, on Footnote 1, it talks about State versus Blue, and specifically it says that the defense of habitation can be applicable to the porch of a dwelling under certain circumstances, and somewhere I've got a copy of that case with me. I believe they said that was a call best left to the jury.
. . .
And as far as where [defendant] was standing, [defendant] testified he was standing on the porch, but Andy Graham, one of the State's witnesses, testified that [defendant] was standing in [defendant's] doorway when [defendant] shot [Walker] those couple of times. So [defendant] was in the doorway. So I basically would contend that in this case, the porch could be considered a part of the house.
The trial court agreed to give an instruction on defense of habitation; however, the trial court stated it would modify the instruction in accordance with State v. Blue, 356 N.C. 79, 565 S.E.2d 133 (2002). The portions of the jury instructions given by the trial court which are necessary to a discussion of the issues on appeal are set forth in the analysis.
Defendant first contends he is entitled to a new trial because the trial court erred by failing to instruct on not guilty by reason of self-defense as a possible verdict in its final mandate to the jury. We agree.
The State contends defendant did not preserve this argument for appellate review and, therefore, we must first determine this issue. Defendant requested an instruction on self-defense at the jury instruction conference. The trial court stated it would instruct the jury on self-defense using N.C.P.I. — Crim. 206.10. Pursuant to N.C.P.I.—Crim. 206.10 (2005), the following instruction should have been given in the trial court's final mandate to the jury:
And finally, if the State has failed to satisfy you beyond a reasonable doubt that the defendant...
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