State v. Harper, 718 S.E.2d 737 (NC Ct. App. 2011)

State v. Harper, 718 S.E.2d 737 (NC Ct. App. 2011)

State: North Carolina
Date: June 21, 2011
Defendant: Harper

 

State v. Harper

STATE OF NORTH CAROLINA, v. ANTHONY J. HARPER.

No. COA10-686.

Court of Appeals of North Carolina.

718 S.E.2d 737; 2011 N.C. App. LEXIS 1197

Filed June 21, 2011.

 Counsel:

Attorney General Roy Cooper, by Robert Smith, Assistant Attorney General, for the State.

Appellate Defender Staples Hughes, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant.

 

UNPUBLISHED OPINION

ERVIN, Judge.

 

Defendant Anthony J. Harper appeals from a judgment entered by the trial court sentencing him to a minimum term of twenty-one months and a maximum term of twenty-six months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for malicious conduct by a prisoner. On appeal, Defendant contends that the trial court erred by failing to instruct the jury on the issue of whether Defendant acted in self-defense and that the record evidence did not suffice to support Defendant’s conviction. After careful consideration of Defendant’s challenges to the trial court’s judgment in light of the record and the applicable law, we conclude that, while the trial court correctly denied Defendant’s dismissal motion, it erred by rejecting Defendant’s request for a self-defense instruction. As a result, Defendant is entitled to a new trial.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

On 16 June 2009, Shirley Parker, an assistant unit manager at the Caledonia Correctional Institution, summoned Defendant, who was incarcerated at that facility, to her office for the purpose of discussing a grievance that Defendant had filed. Ms. Parker told Defendant that she was rejecting his grievance because it stemmed from a prior disciplinary matter and because inmates were not allowed to submit grievances relating to such situations. After Ms. Parker informed Defendant that his grievance would not be processed, he became upset. At that point, Mr. Hines, another assistant manager, came over to Ms. Parker’s office. When Mr. Hines arrived, Defendant jumped up, said “F___k that sh_t,” and returned to his dormitory. Although Ms. Parker immediately radioed a correctional officer in Defendant’s block for the purpose of asking Defendant to return to her office, the officer informed Ms. Parker that Defendant had refused to comply with her request.

As a result, Ms. Parker and Mr. Hines went to Defendant’s dormitory, where they found Defendant sitting at a table playing Monopoly. Although Ms. Parker asked Defendant to return to her office twice, Defendant ignored her requests and continued playing Monopoly. When Mr. Hines told Defendant to stand, however, Defendant got up and was escorted out of the prison block.

After Defendant left the prison block, Sergeant Davenport handcuffed Defendant’s hands behind his back and took him to the medical station so that Defendant could be screened prior to being placed in a segregation cell as punishment for his disrespectful conduct. As Defendant was being processed prior to being placed in segregation, Ms. Parker returned to her office in preparation for her departure from the facility. After visiting Sergeant Davenport’s office, where she informed Sergeant Davenport that he could call her at home if he needed her, Ms. Parker headed toward the back lobby, which was a secured area in the building.

In the lobby, Ms. Parker encountered Defendant, who was being taken to the segregation cell. At that time, Defendant was handcuffed and in the custody of Correctional Officer William Joyner. Ms. Parker stepped back to allow Defendant and Officer Joyner to pass. As Defendant passed Ms. Parker, however, he spit on her two or three times. According to both Ms. Parker and Officer Joyner, Defendant did not say anything to Ms. Parker before spitting on her. After Defendant spit on Ms. Parker, she dropped her purse and keys before pushing at Defendant’s face. Officer Joyner grabbed Defendant by his arms and moved him away from Ms. Parker.

2. Defendant’s Evidence

Defendant testified that Ms. Parker called him to her office for the purpose of discussing a grievance. Defendant claimed that he did not become upset until Ms. Parker told him that “You are not going to be getting shipped no time until after December.” At that point, Defendant became angry, since he believed that Ms. Parker had been reading his outgoing mail.1

After becoming angry, Defendant left Ms. Parker’s office to resume playing Monopoly. As Defendant played Monopoly, Ms. Parker, Mr. Hines, and the block officer approached Defendant and asked him to leave the block for the purpose of being handcuffed. Although Defendant did not know why he was being removed from the block, he was taken to the nurse’s station in order to be screened prior to being placed in a segregation cell. After the screening had been completed, Defendant realized that he was destined for segregation.

On his way to segregation, Defendant encountered Ms. Parker in the lobby and told her that “she was a real piece of work . . . nothing but black trash.” After Defendant made this comment, the escorting officer, Mr. Joyner, pulled up on Defendant’s handcuffed arms to make him lower his head, at which point Ms. Parker began hitting Defendant with her fist and telling him that he “needed to respect black women.” Ms. Parker hit Defendant on his neck and head five or six times while calling him a “black motherf___er” and a “son of a b_tch.” Defendant testified that he spit on Ms. Parker in order to repel her attack. According to Detective Roy Rooks of the Halifax County Sheriff’s Department, Defendant complained that Ms. Parker had assaulted him at the time Defendant was processed following his arrest.

B. Procedural History

On 17 June 2009, a warrant for arrest was issued charging Defendant with malicious conduct by a prisoner. On 26 October 2009, the Halifax County grand jury returned a bill of indictment charging Defendant with malicious conduct by a prisoner. After Defendant submitted a written request for discovery on 16 September 2009, the State provided discovery and made a reciprocal written request for discovery on 3 December 2009 that included an inquiry as to whether Defendant intended “to offer at trial a defense of alibi, duress, entrapment, insanity, mental infirmity, diminished capacity, self-defense, accident, automatism, involuntary intoxication or voluntary intoxication.”

The charge against Defendant came on for trial before the trial court and a jury at the 15 February 2010 criminal session of the Halifax County Superior Court. At the jury instruction conference, after Defendant requested the trial court to instruct the jury on the issue of self-defense, the following colloquy occurred:

[DEF. COUN.]: I do request self-defense.

[PROSECUTOR]: I would object to that. The State received no notice of the defendant’s intention to produce such evidence.

THE COURT: Do you contend that you provided the State with notice of self-defense?

[DEF. COUN.]: I don’t know that I have got to provide a notice of self-defense.

THE COURT: Did you do anything to put the State on notice that you were going to claim self-defense?

[DEF. COUN.]: No, I didn’t, because I didn’t know what the State was going to testify to.

THE COURT: Your motion is denied.

On 17 February 2010, the jury returned a verdict finding Defendant guilty of malicious conduct by a prisoner.

At the ensuing sentencing hearing, the trial court determined that Defendant had accumulated five prior record points and should be sentenced as a Level III offender. Based upon these determinations, the trial court sentenced Defendant to a minimum term of twenty-one months and a maximum term of twenty-six months imprisonment in the custody of the North Carolina Department of Correction, with this sentence to begin at the expiration of any sentences that the Defendant was currently serving. Defendant noted a timely appeal to this Court from the trial court’s judgment

II. Legal Analysis

On appeal, Defendant argues that the trial court erred by (1) refusing to instruct the jury on self-defense and (2) denying Defendant’s motion to dismiss predicated on the assertion that the evidence was insufficient to support his conviction for malicious conduct by a prisoner. Although the evidence was sufficient to support Defendant’s conviction, we conclude that Defendant is entitled to a new trial as a result of the trial court’s failure to deliver a self-defense instruction.

A. Sufficiency of the Evidence

“In ruling on a defendant’s motion to dismiss for insufficiency of the evidence, the trial court must determine whether there is substantial evidence of each essential element of the crime charged and of the defendant’s identity as the perpetrator.” State v. Noffsinger, 137 N.C. App. 418, 423, 528 S.E.2d 605, 609 (2000) (citing State v. Barrett, 343 N.C. 164, 172, 469 S.E.2d 888, 893, cert. denied, 519 U.S. 953, 136 L. Ed. 2d 259, 117 S.Ct. 369 (1996)). “`Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” State v. Turnage, 362 N.C. 491, 493, 666 S.E.2d 753, 755 (2008) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)). In determining the sufficiency of the evidence:

“[T]he trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” “If substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to deny the motion.” . . . Supporting evidence may be “direct, circumstantial, or both.”

State v. Wilkerson, 363 N.C. 382, 426-27, 683 S.E.2d 174, 201 (2009) (quoting State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79, 126 S.Ct. 47 (2005), State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009), and State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)), cert. denied, ___ U. S. ___, 176 L. Ed. 2d 734, 130 S.Ct. 2104 (2010). “Thus, `if there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.'” State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (quoting State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005)). “The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo.” State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007) (citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991), and Shepard v. Ocwen Fed. Bank, FSB, 172 N.C. App. 475, 478, 617 S.E.2d 61, 64 (2005), aff’d, 361 N.C. 137, 638 S.E.2d 197 (2006)).

The essential elements of a charge of malicious conduct by a prisoner are:

(1) the defendant threw, emitted, or caused to be used as a projectile a bodily fluid or excrement at the victim;

(2) the victim was a state or local government employee;

(3) the victim was in the performance of his or her State or local government duties at the time the fluid or excrement was released;

(4) the defendant acted knowingly and willfully; and

(5) the defendant was in the custody of. . . any law enforcement officer.

State v. Noel, ___ N.C. App. ___, ___, 690 S.E.2d 10, 13-14 (citing State v. Robertson, 161 N.C. App. 288, 292-93, 587 S.E.2d 902, 905 (2003), and N.C. Gen. Stat. § 14-258.4(a)), disc. review denied, 364 N.C. 246, 699 S.E.2d 642 (2010). In seeking relief from his conviction on appeal, Defendant challenges the sufficiency of the State’s evidence to show that Ms. Parker was engaged in the performance of her official duties at the time that Defendant spit on her. In essence, Defendant argues that Ms. Parker “was merely in the process of leaving the building to go home at the time” and that “[t]he mere fact that Ms. Parker hadn’t quite managed to make it out the door of the correctional facility before encountering [Defendant] did not mean she was performing a duty of her employment.” We disagree.

As this Court has previously noted, “the malicious conduct toward the officer is the primary conduct proscribed” by N.C. Gen. Stat. § 14-258.4, with “the particular duty that the officer is performing at the time of the offense [being] of secondary importance.” Noel, ___ N.C. App. at ___, 690 S.E.2d at 15. Nothing in the relevant statutory language or our decisions construing N.C. Gen. Stat. § 14-258.4 requires that the victim be performing any specific job-related duty in order for a defendant to be guilty of malicious conduct by a prisoner. As a result, the mere fact that Ms. Parker was not actively engaged in the performance of any particular duty relating to her employment as assistant unit manager at the Caledonia Correctional Institution does not preclude Defendant’s conviction for malicious conduct by a prisoner. Such a standard would, as the State notes, deprive a correctional officer who is taking a break or conversing with fellow officers while on duty of the protections afforded by N.C. Gen. Stat. § 14-258.4. The record in this case clearly indicates that, at the time that Defendant spit on her, Ms. Parker’s work day had not ended; that Ms. Parker had not “clocked out;” that Ms. Parker remained on call as long as she was on the premises; and that Ms. Parker would have been obligated to stay past her scheduled departure time in the event that her services were needed. We believe that this evidence more than suffices to support a finding that Ms. Parker was engaged in the performance of her official duties at the time that Defendant spit on her. As a result, we conclude that Defendant’s challenge to the sufficiency of the evidence to support his conviction lacks merit.

B. Self-Defense Instruction

“The presiding judge in his charge to the jury must declare and explain the law arising on the evidence relating to each substantial feature of the case.” State v. Everette, 284 N.C. 81, 87, 199 S.E.2d 462, 467 (1973) (citing State v. Brady, 236 N.C. 295, 72 S.E.2d 675 (1952) (other citation omitted)). “Jury instructions must be supported by the evidence[, and] . . . all essential issues arising from the evidence require jury instructions.” Bagley, 183 N.C. App. at 524, 644 S.E.2d at 622 (internal citations omitted). “A defendant is entitled to a jury instruction on self-defense when there is evidence from which the jury could infer that he acted in self-defense.” State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998) (citing State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977)). In determining whether an instruction on self-defense is warranted, the facts are viewed in the light most favorable to the defendant. State v. Watkins, 283 N.C. 504, 509, 196 S.E.2d 750, 754 (1973) (citing State v. Finch, 177 N.C. 599, 99 S.E. 409 (1919)). This “Court reviews a trial court’s decisions regarding jury instructions de novo.” State v. Cruz, ___ N.C. App. ___, ___, 691 S.E.2d 47, 50 (citing State v. Osorio, ___ N.C. App. ___, ___, 675 S.E.2d 144, 149 (2009)), aff’d, 364 N.C. 417, 700 S.E.2d 222 (2010).

As a general rule, “[t]he theory of self-defense entitles an individual to use `such force as is necessary or apparently necessary to save himself from death or great bodily harm. . . . A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief.'” State v. Moore, 111 N.C. App. 649, 653, 432 S.E.2d 887, 889 (1993) (quoting Marsh, 293 N.C. at 354, 237 S.E.2d at 747). However, “[i]n the absence of an intent to kill, a person may fight in his own self-defense to protect himself from bodily harm or offensive physical contact, even though he is not put in actual or apparent danger of death or great bodily harm.” State v. Beaver, 14 N.C. App. 459, 463, 188 S.E.2d 576, 579 (1972) (citing State v. Chaney, 9 N.C. App. 731, 177 S.E.2d 309 (1970)). The Supreme Court “has held in many cases that where competent evidence of self-defense is presented at trial, the defendant is entitled to an instruction on this defense, as it is a substantial and essential feature of the case, and the trial judge must give the instruction even absent any specific request by the defendant.”) State v. Morgan, 315 N.C. 626, 643, 340 S.E.2d 84, 95 (1986) (citations omitted).2 As a result of the fact that no written request for a self-defense instruction was necessary3 and the fact that requesting an instruction at the jury instruction conference is a sufficient objection for purposes of N.C.R. App. P. 10(a)(2) (stating that “[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict”), Wall v. Stout, 310 N.C. 184, 188-89, 311 S.E.2d 571, 574 (1984) (stating that N.C.R. App. P. 10(a)(2) does not require a party “to repeat [his] objection [] to the jury instructions after the charge was given in order to preserve [his] objections for appellate review” since the policy objectives of the rule are “met when a request to alter an instruction has been submitted and the trial judge has considered and refused the request”), Defendant has adequately preserved this issue for appellate review.

The trial court apparently declined to deliver the requested self-defense instruction because Defendant did not provide the State with prior notice of his intent to raise the issue of self-defense at trial. However, the record does not reflect that the trial court ever ordered Defendant to make the disclosures required by N.C. Gen. Stat. § 15A-905(c) or that Defendant voluntarily provided discovery, thereby triggering his obligation under N.C. Gen. Stat. § 15A-905(d) to disclose the information enumerated in N.C. Gen. Stat. § 15A-905(c) despite the absence of an affirmative order requiring him to do so. We need not, however, address the extent to which Defendant’s apparent failure to notify the State of his intent to rely on self-defense contravened any provision of Chapter 15A of the General Statutes given that the State made no objection to the presentation of Defendant’s testimony that he acted in self-defense. In fact, the State cross-examined Defendant concerning his self-defense claim without making any issue of Defendant’s failure to provide notice that he intended to rely on that defense. As a result, the record contains considerable testimony “from which the jury could infer that [Defendant] acted in self-defense,” Allred, 129 N.C. App. at 235, 498 S.E.2d at 206, that was admitted into evidence without objection. Thus, the trial court erred by refusing Defendant’s request for a self-defense instruction on notice-related grounds.4 Bagley, 183 N.C. App. at 524, 644 S.E.2d at 622; Anderson, 40 N.C. App. at 321, 253 S.E.2d at 50. For that reason, the ultimate issue raised by Defendant’s challenge to the trial court’s refusal to instruct the jury on the issue of self-defense is whether the evidence contained in the present record sufficed to support a jury determination that Defendant should be acquitted on self-defense grounds.

Although the accounts of the event that led to Defendant’s conviction were in sharp dispute, we believe that Defendant’s testimony, if believed, supported the delivery of a self-defense instruction. Defendant testified that he spit on Ms. Parker after she began to hit him for the purpose of attempting to stop her assaultive conduct and that, given the fact that he was in handcuffs at the time that Ms. Parker began to hit him, he had no other way to attempt to protect himself. Assuming that the jury concluded that Defendant’s testimony was credible, we believe that this evidence would support a determination that Defendant acted in self-defense at the time he attempted to repel Ms. Parker’s alleged attack by spitting on her.

The State does not seriously argue in its brief that the record is devoid of evidence tending to show that Defendant spit on Ms. Parker for the purpose of defending himself against her attack. Instead, the State argues that Defendant provoked his confrontation with Ms. Parker by calling her a “piece of work” and “black trash” and thereby forfeited his right to claim self-defense based upon the well-established legal principle that “self-defense is only available to a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense[.]” Marsh, 293 N.C. at 354, 237 S.E.2d at 747. However, given that the conduct upon which the State relies in order to establish that Defendant was “at fault” in bringing on his confrontation with Ms. Parker consisted of verbal abuse rather than assaultive behavior, the ultimate question which must be resolved in order to determine whether Defendant forfeited his right to act in self-defense was whether his “language [was] calculated and intended to provoke the difficulty which [] ensued.” State v. Crisp, 170 N.C. 785, 790, 87 S.E. 511, 513 (1916). “[W]hether the defendant is free from blame or fault will be determined by his conduct at the time and place of the [assault].” State v. Jennings, 276 N.C. 157, 163, 171 S.E.2d 447, 451 (1970). While Defendant was clearly angry with Ms. Parker and made highly inappropriate statements to her when she walked by, the record does not compel the conclusion that Defendant intended to provoke a fight and that his language was calculated to do so as a matter of law. Since “language may have varying significance from difference of time and circumstances, . . . the question is very generally for determination of the jury.” Crisp, 170 N.C. at 791, 87 S.E. 514. As a result, viewing the record evidence in the light most favorable to Defendant, as we are required to do by the applicable standard of review, it is clear that the jury, had it believed Defendant’s testimony, could have reasonably concluded that Defendant spit on Ms. Parker for the purpose of defending himself and that the uncomplimentary language that he directed to Ms. Parker was not “calculated and intended” to bring about her assault upon him. Thus, the trial court erred by refusing to instruct the jury on the issue of whether Defendant acted in self-defense in accordance with Defendant’s request. See State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974) (stating that, “[w]here 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”).

“Where there is sufficient evidence in a case to support an instruction on a defense, due process requires that the trial court instruct the jury on the defense.” State v. Bowman, 188 N.C. App. 635, 650, 656 S.E.2d 638, 650 (2008) (citing State v. Marshall, 105 N.C. App. 518, 525, 414 S.E.2d 95, 99 (1992)). “Failure to give the required instruction is an error of constitutional dimension and the defendant is presumed to have been prejudiced; the burden is upon the State to show beyond a reasonable doubt that the error was harmless.” Id. (citing N.C. Gen. Stat. § 15A-1443(b)). Although the State contends that the trial court’s error did not prejudice Defendant, we are unable to agree with that argument. The effect of the trial court’s ruling was to deprive Defendant of his only viable defense to the charge that had been asserted against him. Although we are cognizant of the strength of the State’s case, we are unwilling to find the trial court’s error to be non-prejudicial since such a determination would effectively require us to make a credibility determination of the type which is appropriately reserved for the jury. As a result, we conclude that Defendant is entitled to a new trial based on the trial court’s refusal to deliver a self-defense instruction.5

III. Conclusion

Thus, for the reasons set forth above, we conclude that, while the trial court correctly rejected Defendant’s challenge to the sufficiency of the evidence to support his conviction, the trial court erred by refusing Defendant’s request for a self-defense instruction. As a result, Defendant is entitled to a new trial.

NEW TRIAL.

Chief Judge MARTIN and JUDGE MCGEE concur. Report per Rule 30(e).

 

Footnotes

1. Prior to Ms. Parker’s appointment as assistant unit manager, Defendant had spoken with other unit managers about the possibility that he could be transferred to a correctional facility closer to his home in Buncombe County. After the other unit managers told Defendant he needed to wait until his next custody review before seeking such a transfer, Defendant began writing the Department of Correction directly concerning his transfer request. Defendant interpreted Ms. Parker’s comment as a reference to the letters that he had sent to the Department of Correction.

2. For this reason, we are not persuaded by the State’s argument that Defendant has not adequately preserved his challenge to the trial court’s refusal to instruct on the issue of self-defense based on the fact that Defendant failed to request a self-defense instruction in writing.

3. Admittedly, a defendant is required to make written requests for special instructions in order to preserve the trial court’s refusal to deliver that instruction to the jury for purposes of appellate review. State v. Holden, 321 N.C. 125, 157, 362 S.E.2d 513, 533 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935, 108 S.Ct. 2835 (1988). That principle does not, however, apply in this case. Morgan, 315 N.C. at 644, 340 S.E.2d at 95. In fact, Morgan specifically rejected the contention that N.C.R. App. P. 10(a)(2) obviated the rule requiring “a trial judge . . . to instruct, ex mero motu, on a substantial and essential feature of the case” and held, instead, that the effect of N.C.R. App. P. 10(a)(2) was simply to require a timely objection at trial. Id. Since none of the cases cited by the State in support of its argument that Defendant was required to request the delivery of a self-defense instruction in writing as a precondition for appellate review actually involve a self-defense issue, Morgan is the only case that directly addresses this issue and is binding on this Court. See Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). As a result of the fact that an adequate objection was made, the fact that Defendant did not request a self-defense instruction in writing does not preclude us from reviewing Defendant’s claim on the merits.

4. Because the trial court declined to instruct the jury on self-defense due to lack of notice, the trial court did not address whether the act of spitting itself could be, in fact, an act of self-defense. This issue appears to be one of first impression in this State, and there does not appear to be a consensus in other jurisdictions. See State v. Hawley, 102 Conn.App. 551, 555, 925 A.2d 1197, 1200 (stating that “[s]pitting on another person is almost universally acknowledged as contemptuous and is calculated to incite others to act in retaliation”), app. denied, 284 Conn. 914, 931 A.2d 933 (2007); Pearson v. Commonwealth, 2010 Va. App. LEXIS 385, at *10 (Va. App. 2010) (unpublished) (holding that “spitting in an officer’s face cannot be construed as a reasonable use of force to resist an illegal arrest because the act itself is not designed to thwart the officer’s efforts to complete the arrest”); State v. Derrick, 198 Or.App. 358, 364, 108 P.3d 608, 611 (holding that, as to an officer’s exercise of force after defendant spit on the officer, “the instruction of self-defense to an arrest made with unreasonable force was proper, [but] a self-defense instruction was not”) (citing State v. Wright, 310 Or. 430, 433-36, 799 P.2d 642 (1990)), review denied, 339 Or. 475, 124 P.3d 1248 (2005); Derba v. Derba, 2007 WL 4208720, at *2-*3 (Mass. App. Ct. 2007) (unpublished) (upholding the trial court’s finding in a custody case that the wife, who spit in the husband’s face and attempted to kick him, acted in self-defense), review denied, 450 Mass. 1109, 880 N.E.2d 413(2008). At a minimum, however, given Defendant’s testimony that he spit on Ms. Parker because he lacked any other way to stop her from attacking him, we believe that the extent to which Defendant’s conduct constituted an act of self-defense was a question for the jury rather than an absolute bar to the delivery of a self-defense instruction.

5. Although the State suggests, without citing any authority, that a defendant charged with malicious conduct by a prisoner in violation of N.C. Gen. Stat. § 14-258.4 may not attempt to avoid liability on the basis of a claim of self-defense, we are not persuaded by that argument. According to clearly established North Carolina law, self-defense is available to a person subject to an unlawful arrest. State v. Mobley, 240 N.C. 476, 478-79, 83 S.E.2d 100, 102 (1954). In light of the logic of Mobley and its progeny and the absence of statutory language suggesting the appropriateness of a contrary outcome, we believe that an incarcerated individual has the right to use reasonable force to defend himself or herself from an unlawful assault.

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