North Carolina Pattern Jury Instructions (N.C.P.I.)—Criminal 308.80

NC 308.80 DEFENSE OF [HABITATION] [WORKPLACE] [MOTOR VEHICLE] – HOMICIDE AND ASSAULT.

GENERAL CRIMINAL VOLUME. REPLACEMENT JUNE 2012

G.S. 14-51.1, 14-51.2, 14-51.3, 14-51.4

NOTE WELL: The use of force, including deadly force, is justified when the defendant is acting to prevent a forcible entry into the defendant’s home, other place of residence, workplace, or motor vehicle, or to terminate an intruder’s unlawful entry. See G.S. 14-51.1. This instruction is designed to be used instead of, or together with, the self defense instructions which are incorporated in the murder charges (N.C.P.I.–Crim. 206.10, 206.11, 206.30), and those in N.C.P.I.–Crim. 308.40 or 308.45.

NOTE WELL: The trial judge is reminded that this instruction must be combined with the substantive offense instruction in the following manner: (1) the jury should be instructed on the elements of the charged offense; (2) the jury should then be instructed on the definition of defense of habitation set out in this instruction below; (3) the jury should then be instructed on the mandate of the charged offense; and (4) the jury should be instructed on the mandate for self defense as set out below in this instruction. THE FAILURE TO CHARGE ON ALL OF THESE MATTERS CONSTITUTES REVERSIBLE ERROR.

If the defendant [killed] [assaulted] the victim to prevent a forcible entry into the defendant’s [home] [place of residence] [workplace] [motor vehicle], or to terminate the intruder’s unlawful entry, the defendant’s actions are excused and the defendant is not guilty. The State has the burden of proving from the evidence beyond a reasonable doubt that the defendant did not act in the lawful defense of the defendant’s [home] [place of residence] [workplace] [motor vehicle].

The defendant was justified in using (deadly) force if:

(1) such force was being used to [prevent a forcible entry] [terminate the intruder’s unlawful entry] into the defendant’s [home] [place of residence] [workplace] [motor vehicle];

(2) the defendant reasonably believed that the intruder [would kill or inflict serious bodily harm to the defendant or others in the [home] [place of residence] [workplace] [motor vehicle]]5 [intended to commit a felony in the [home] [place of residence] [workplace] [motor vehicle]]; and

(3) The defendant reasonably believed that the degree of force the defendant used was necessary to [prevent a forcible entry] [terminate the intruder’s unlawful entry] into the defendant’s [home] [place of residence] [workplace] [motor vehicle].6

A lawful occupant within a [home] [place of residence] [workplace] [motor vehicle] does not have a duty to retreat from an intruder in these circumstances. Furthermore, a “person who unlawfully and by force enters or attempts to enter a person’s [home] [place of residence] [workplace] [motor vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.” In addition, (absent evidence to the contrary), the lawful occupant of a [home] [place of residence] [workplace] [motor vehicle] is presumed to have held a reasonable fear of imminent death or serious bodily harm to [himself] [herself] or another when using defensive force that is intended or likely to cause death or serious bodily harm to another if both of the following apply: (1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a [home] [place of residence] [workplace] [motor vehicle], or if that person had removed or was attempting to remove another against that person’s will from the [home] [place of residence] [workplace] [motor vehicle]; and (2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

It is for you, the jury, to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to the defendant at the time.

NOTE WELL: The following self-defense mandate must be given after the mandate on the substantive offense(s). INCLUDING THE SELF-DEFENSE MANDATE IS REQUIRED BY STATE V. WOODSON, 31 N.C. APP. 400 (1976). Cf. State v. Dooley, 285 N.C. 158 (1974).

DEFENSE OF HABITATION MANDATE

If you find beyond a reasonable doubt that the defendant [killed] [assaulted] the victim you may return a verdict of guilty only if the State has satisfied you beyond a reasonable doubt that the defendant did not act in the lawful defense of the defendant’s [home] [place of residence] [workplace] [motor vehicle], that is,

(1) that the defendant did not use such force to [prevent a forcible entry] [terminate the intruder’s unlawful entry] into the defendant’s [home]

[place of residence] [workplace] [motor vehicle];

(2) that the defendant did not reasonably believe that the intruder [would kill or inflict serious bodily harm to the defendant or others in the [home] [place of residence] [workplace] [motor vehicle]] [intended to commit a felony in the [home] [place of residence] [workplace] [motor vehicle]]; and

(3) that the defendant did not reasonably believe that the degree of force the defendant used was necessary to [prevent a forcible entry] [terminate the intruder’s unlawful entry] into the defendant’s [home] [place of residence] [workplace] [motor vehicle].

If you do not so find, or have a reasonable doubt that the State has proved any one or more of these things, then the defendant would be justified in defending the [home] [place of residence] [workplace] [motor vehicle], and it would be your duty to return a verdict of not guilty.