IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-114
No. 382A21
Filed 4 November 2022
STATE OF NORTH CAROLINA
v.
IVAN GERREN HOOPER
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 279 N.C. App. 451, 2021-NCCOA-500, finding no error after
appeal from a judgment entered on 7 March 2018 by Judge Stanley L. Allen in
Superior Court, Rockingham County. Heard in the Supreme Court on 23 May 2022
in session in the Old Burke County Courthouse in the City of Morganton pursuant to
N.C.G.S. § 7A-10(a).
Joshua H. Stein, Attorney General, by Jasmine McGhee, Special Deputy
Attorney General, and Zachary Ezor, Solicitor General Fellow, for the State-
appellee.
Glenn Gerding, Appellate Defender, by John F. Carella, Assistant Appellate
Defender, for defendant-appellant.
ERVIN, Justice.
¶1 The issue before the Court in this case is whether a request made by
defendant’s trial counsel that the trial court instruct the jury concerning the law of
self-defense that was made after the conclusion of the jury instruction conference and
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prior to the delivery of the trial court’s instructions to the jury properly preserved
defendant’s challenge to the trial court’s refusal to deliver the requested instruction
for purposes of appellate review and whether the trial court erred by denying
defendant’s request for the delivery of a self-defense instruction. The Court of
Appeals held that defendant had waived the right to appellate review of the trial
court’s refusal to deliver a self-defense instruction on the basis of the invited error
doctrine and that the trial court did not commit prejudicial error by refusing to deliver
the requested self-defense instruction. After careful consideration of defendant’s
challenge to the trial court’s judgment in light of the applicable law, we modify and
affirm the Court of Appeals’ decision.
I. Background
A. Substantive Facts
1. State’s Evidence
¶2 On either 1 or 2 March 2017, Ashley Thomas; her uncle Wilbert Reaves; the
son that she and defendant had had together; and defendant attended the funeral of
defendant’s great aunt. Following the funeral, the group went to lunch, after which
defendant asked to be taken to a store at which he could obtain cigarettes and
purchase bullets, with Ms. Thomas denying both having provided defendant with any
assistance in procuring ammunition and having had any conflict with defendant on
that day. Similarly, Mr. Reaves testified that the group had gone to lunch together
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after the funeral, that Ms. Thomas had taken defendant to get cigarettes, and that
defendant had asked “a couple of times [for Ms. Thomas] to purchase him bullets.”
¶3 Ms. Thomas stated she and her son had visited defendant at the Reidsville
Quality Inn on 4 March 2017 in response to a request that defendant had made to
Ms. Thomas at her mother’s residence that Ms. Thomas come to talk with him and
allow him to visit with their son. Upon her arrival at defendant’s hotel room, Ms.
Thomas testified that she placed her son on the bed and took a seat in a chair by the
door. After Ms. Thomas refused defendant’s request to get out of the chair, defendant
pulled up a chair “directly in front of [her] face” and began to question Ms. Thomas
about her relationship with an individual with whom defendant assumed that Ms.
Thomas had become romantically involved. When Ms. Thomas asked defendant “[i]s
this really why you called me here?,” defendant responded, “[w]ell honestly, I don’t
care. I don’t want you anyway, so you can really dismiss yourself.” At that point, Ms.
Thomas rose to pick up her son and leave.
¶4 As Ms. Thomas rose, defendant “g[ot] in [her] face,” pushed her, and began to
punch her in the face and stomach before hurling her onto the bed as he continued to
hit her face. As defendant did this, Ms. Thomas screamed for him to stop and to
refrain from acting in this manner in front of their son. Ms. Thomas testified that,
as he struck her, defendant stated that “[n]obody is going to be able to save you, but
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[your son], and even he is not going to be able to save you today. I’m going to kill you,
bitch.” At that point, Ms. Thomas claimed that she feared for her life.
¶5 After Ms. Thomas “nudged” defendant, the two of them stood up, at which point
defendant threw Ms. Thomas on the floor and choked her with his hands. As she was
being choked, Ms. Thomas kneed defendant in the groin, causing him to stand up, at
which point she ran to the mirror in the rear of the hotel room “to see what
[defendant] actually did to [her].” Ms. Thomas did not attempt to leave the hotel
room given that defendant had forcibly detained her when she had attempted to
depart from his presence at an earlier time.
¶6 After examining herself in the mirror, Ms. Thomas grabbed her phone and
attempted to return a call that she had received from Mr. Reaves during the course
of defendant’s assault so that she could let him know that she needed help. As she
did so, defendant knocked the phone out of Ms. Thomas’ hand, causing the phone to
hit the wall of the hotel room and the screen to shatter. Although the phone remained
functional, the damage that it had sustained made it difficult for Ms. Thomas to make
things out on the screen.
¶7 Eventually, Ms. Thomas’ attention was drawn to the television stand, on which
she saw a firearm. After she picked upon the weapon, defendant grabbed their son
and held him between Ms. Thomas and himself. At that point, Ms. Thomas told her
son to come to her and informed defendant that, in the event that he refused to let
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her leave with her son, she had no choice except to shoot. As a result of the fact that
defendant acted as if he was going to lunge towards her, Ms. Thomas pulled the
trigger at a time when the gun was pointed at the floor, at which point defendant
exclaimed, “I’ve been shot,” grabbed her hand, and asked that she relinquish
possession of the weapon, a step that Ms. Thomas refused to take. However, when
defendant asked “if I let it go, can I leave with you?,” Ms. Thomas acquiesced in that
request. As soon as defendant released her hand, however, Ms. Thomas grabbed their
son, ran to her automobile, returned to her home, and contacted the Reidsville Police
Department. Subsequently, Ms. Thomas told Mr. Reaves that “she had shot
[defendant] because he was beating her.”
¶8 Although a friend had given her a .22 caliber pistol about a week prior to 4
March 2017, Ms. Thomas denied having had that weapon in her possession at the
time of her encounter with defendant at the Quality Inn. In addition, Ms. Thomas
denied that she had had any intention of harming defendant at the time that she
went to meet him at the hotel. On the other hand, Ms. Thomas had previously
informed one of her friends that she had a weapon and had insinuated that she would
use it to protect herself from defendant.
¶9 At approximately 5:15 p.m. on 4 March 2017, Ms. Thomas called the Reidsville
Police Department to report an alleged assault that had allegedly occurred at the
Quality Inn. Ms. Thomas told Officer Scott Brown of the Reidsville Police
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Department that she had gotten into an altercation with defendant, who is the father
of her three-year-old son. At the time of her conversation with Officer Brown, Ms.
Thomas’ face and neck were visibly bruised and swollen.
¶ 10 In the course of discussing the incident with Officer Brown, Ms. Thomas stated
that, at defendant’s request, she had visited him at a room that he had rented at the
Quality Inn and that, following her arrival, defendant began questioning her about
her relationship with another man. After defendant began acting in an aggressive
manner, the two of them became involved in an altercation. Ms. Thomas stated that,
when defendant attempted to obtain possession of a firearm that was already in the
hotel room, she reached for it as well. According to Ms. Thomas, the gun discharged
in the ensuing struggle, at which point Ms. Thomas returned home with their child.
Officer Brown retrieved a Rossi .357 Magnum revolver that contained two spent shell
casings and four live rounds from Ms. Thomas’ home.
¶ 11 At the time that Sergeant Kenneth Mitchell of the Reidsville Police
Department spoke with Ms. Thomas, he observed that she had bruises across the
bridge of her nose and eyes, bruises and red marks around both sides of her neck, a
laceration on her cheek, and scratches running down her chest. On 8 March 2017,
Sergeant Mitchell examined the hotel room in which the incident between defendant
and Ms. Thomas had occurred and identified the location at which a projectile had
hit the floor. In view of the fact that the carpet in the hotel room had been placed
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directly over a concrete floor, there was no way to identify the path at which that
projectile had been travelling. Sergeant Mitchell determined that, based upon
information that had been provided to him by Ms. Thomas and the damage that he
observed to the bedspread, the box springs, and the floor, a bullet had ricocheted off
the floor and struck defendant in his left calf. According to Sergeant Mitchell, the
fact that both participants in the altercation admitted to having had their hands on
the firearm and that no fingerprints had been detected on the weapon made it
pointless for him to have any testing performed upon any of the blood that had been
detected in the hotel room.
¶ 12 At 11:50 p.m. on 5 March 2017, Officer Jason Joyce of the Reidsville Police
Department responded to a report that an individual who had sustained a gunshot
wound had come to Cone Health Annie Penn Hospital. Defendant, who was the
person in question, told Officer Joyce that Ms. Thomas had brought their child to the
Quality Inn, that their conversation had turned into an argument, and that Ms.
Thomas had pulled out a gun and shot him in the leg. According to defendant, after
Ms. Thomas pulled out the firearm, he had advanced towards Ms. Thomas for the
purpose of taking the gun from her, and that, as he did so, the two of them struggled,
she shot him, and then she left the hotel room with their child.
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2. Defendant’s Evidence
¶ 13 The mother of one of defendant’s sons, Marcelina Machoca, testified that, prior
to 4 March 2017, she and Ms. Thomas had communicated using electronic messages
after Ms. Machoca had driven defendant to the hospital to visit his ailing great aunt.
Ms. Machoca testified that Ms. Thomas was upset that Ms. Machoca and defendant
had been around each other; that Ms. Thomas had stated that defendant “was just
using [Ms. Machoca]”; and that Ms. Thomas and defendant were trying to get back
together. Ms. Thomas told Ms. Machoca “that [defendant] had been going to [Ms.
Thomas’] house almost every morning” and that, “since he was hanging around [Ms.
Machoca,] . . . he needed to stop coming around [Ms. Thomas’] house because one of
her guy friends had [given] her a gun, and if he came around again, she wouldn’t have
no problem using it.” Marsena Jones, a cousin to both Ms. Thomas and defendant,
testified that defendant did not own a firearm and that Ms. Thomas had not
mentioned either shooting defendant or otherwise discharging a firearm during her
conversations with Ms. Jones.
¶ 14 Felicia Donnell, who was defendant’s mother and one of Ms. Thomas’
acquaintances, testified that she had contacted Ms. Thomas on 3 March 2017 for the
purpose of communicating defendant’s request that Ms. Thomas come to see him at
the Quality Inn. At that time, Ms. Donnell had advised Ms. Thomas against seeing
defendant because “their relationship is like nitro and glycerin.” In addition, Ms.
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Donnell testified that she had received a call from Ms. Thomas after 4:00 p.m. on 4
March 2017 and that Ms. Thomas had seemed to be very upset during that
conversation. According to Ms. Donnell, Ms. Thomas stated that, “I shot him. I shot
your son”; that Ms. Thomas claimed to have gone to see defendant; that Ms. Thomas
had feared for her life during their encounter; and that Ms. Thomas had possessed a
firearm during her encounter with defendant. In addition, Ms. Donnell testified that
Ms. Thomas told her that she pointed the gun at defendant, that she had asked
defendant if he was going to kill her, that defendant had responded by demanding
that Ms. Thomas give him the weapon, and that a shot had been fired. According to
Ms. Donnell, Ms. Thomas had stated that, after the shot had been fired, a scuffle had
ensued, that another shot had been fired during the scuffle, and that defendant had
looked at his leg. Ms. Thomas also told Ms. Donnell that defendant had choked and
punched her during the interval between the two shots and had exclaimed, “you shot
me, you shot me,” after the firing of the second shot. Ms. Thomas did not tell Ms.
Donnell how she had come to be in possession of the firearm from which the shot that
struck defendant had been fired. After speaking with Ms. Thomas, Ms. Donnell called
defendant and told him that he needed to go to the hospital to seek medical treatment.
On the following day, defendant told Ms. Donnell that he was going to the hospital
and knew that he would be placed under arrest once he did that.
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B. Procedural History
¶ 15 On 10 April 2017, the Rockingham County grand jury returned bills of
indictment charging defendant with assault by strangulation, communicating
threats, assault on a female, interfering with an emergency communication, and
possession of a firearm by a felon. On 5 February 2018, the Rockingham County
grand jury returned a bill of indictment charging defendant with having attained the
status of a habitual felon.
¶ 16 The charges against defendant came on for trial before the trial court and a
jury at the 5 March 2018 criminal session of Superior Court, Rockingham County. At
the jury instruction conference that the trial court conducted with counsel for both
the State and defendant, the trial court described the instructions that it intended to
deliver to the jury without making any mention of the issue of self-defense. After
some discussion, neither the prosecutor nor defendant’s trial counsel expressed any
objections to the trial court’s proposed jury instructions or requested the trial court
to deliver any additional instructions. On the following morning, however, the
following proceedings occurred:
THE COURT: All right, Sheriff, bring the jury in, please.
[DEFENSE COUNSEL]: Your Honor, may I have just one
moment?
THE COURT: Yes.
....
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[DEFENSE COUNSEL]: Your Honor, I think it’s
reasonable based on information that has been presented
that the . . . self-defense component in this particular jury
instruction would be appropriate, as well, the 308.40 to be
elicited here in this particular matter.
Also secondly with that, Your Honor, I do have a case
to hand up. I think that would be reflective of that, as well,
based on the evidence that has been presented at this time.
THE COURT: Okay. Well, you said yesterday you were
satisfied with the instructions as the Court had outlined is
going to give.
[DEFENSE COUNSEL]: And Your Honor, (inaudible) back
where we started in that component, so I wanted to make
sure that (inaudible) would be appropriate, Your Honor.
THE COURT: And you want to be heard further?
[DEFENSE COUNSEL]: Yes, Your Honor. Simply as we
look at this particular matter, the State v. Jennings, . . . .
This particular matter . . . reflects to a slightly more serious
[crime]—it’s a murder allegation, but still when it reflects
what takes place with a self-defense proposition, that
should be provided to the jurors. The piece here, I think,
that falls in line with this particular matter is that
obviously whatever has been charged, whatever was done,
the fact still remains that this particular matter that’s in
front of the Court today, it is most appropriate that this
particular test here for self-defense should be
appropriated—is appropriate and should be provided to the
jurors.
With that, the actions that were done, the timeliness
of the actions, all of those components are supported and
would be prudent to make sure that the jurors are aware
of this particular action that will be most beneficial, I
think, in this matter.
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In response, the prosecutor argued that defendant had not given the statutorily-
required notice that he intended to rely upon self-defense and that the record
evidence did not support the delivery of a self-defense instruction given defendant’s
failure to testify in his own behalf. At the conclusion of the colloquy initiated by
defendant’s request for the delivery of a self-defense instruction, the trial court stated
that:
Well, I have to agree with the State. . . . [T]here was no
notice given of affirmative defense . . . and because we don’t
know what was in . . . [d]efendant’s mind because he
exercised his constitutional right not to testify, we don’t
know what he was thinking or what he believed. And
there’s been no other evidence that . . . anything was done
in self-defense. The request for a self-defense instruction
is denied.
Bring the jury in, please, Sheriff.
At the conclusion of the trial court’s jury instructions, the trial court inquired whether
there were “any requests for additional instructions or for corrections or any
objections to the instructions given to the jury” without drawing any further
objections, proposed corrections, or requests for additional instructions from counsel
for either the State or defendant.
¶ 17 On 7 March 2018, the jury returned verdicts convicting defendant of assault
by strangulation, communicating threats, assault on a female, and interfering with
an emergency communication and acquitting defendant of possession of firearm by a
felon. At the conclusion of a separate proceeding conducted on the same date, the
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jury found that defendant had attained the status of an habitual felon. Based upon
these jury verdicts, the trial court consolidated defendant’s convictions for judgment
and sentenced defendant to a term of sixty-five to ninety months imprisonment. On
12 August 2019, defendant filed a petition seeking the issuance of a writ of certiorari
authorizing review of the trial court’s judgment, with the Court of Appeals having
issued the requested writ of certiorari on 27 August 2019.
C. Court of Appeals Decision
¶ 18 In seeking relief from the trial court’s judgment before the Court of Appeals,
defendant argued that the trial court had erred by rejecting his request that the jury
be instructed that it could acquit defendant on the grounds of self-defense given that
the record contained evidence that would have allowed the jury to make such a
determination. State v. Hooper, 279 N.C. App. 451, 2021-NCCOA-500, ¶¶ 12–13. In
rejecting defendant’s challenge to the trial court’s judgment, the Court of Appeals
held that “[d]efendant’s failure to object [to the planned instructions] during the
charge conference or after the instructions were given to the jury, along with his
express agreement during the charge conference and after the instructions were
given to the jury, constitutes invited error” and “waive[d] any right to appellate
review concerning the invited error, ‘including plain error review,’ ” id. ¶ 18 (quoting
State v. Barber, 147 N.C. App. 69, 74 (2001)), with the Court of Appeals having
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reached this result in reliance upon State v. White, 349 N.C. 535 (1998), in which we
held that:
[c]ounsel . . . did not object when given the opportunity
either at the charge conference or after the charge had been
given. In fact, defense counsel affirmatively approved the
instructions during the charge conference. Where a
defendant tells the trial court that he has no objection to
an instruction, he will not be heard to complain on appeal.
Hooper, ¶ 19 (quoting White, 349 N.C. at 570). According to the Court of Appeals,
“[t]he tardiness of [d]efendant’s purported request followed by his counsel’s express
agreement following the jury instructions as given waive[d] appellate review.”
Hooper, ¶ 19. In addition, the Court of Appeals held that, even if the trial court had
erred by rejecting defendant’s request for the delivery of a self-defense instruction,
defendant could not “carry his burden to show the court’s refusal of his requested
instruction ‘had a probable impact on the jury’s [decision to find] that defendant was
guilty,’ ” id. ¶ 20 (quoting State v. Lawrence, 365 N.C. 506, 517 (2012)), given that,
“where the evidence against a defendant is overwhelming and uncontroverted[, a]
defendant cannot show that, absent the error, the jury probably would have returned
a different verdict” and given that the evidence against defendant in this case was
both “overwhelming and uncontroverted,” Hooper, ¶¶ 21, 23 (first alteration in
original) (quoting State v. Chavez, 378 N.C. 265, 2021-NCSC-86, ¶ 13). As a result,
the majority at the Court of Appeals held that no error had occurred in the
proceedings leading to the entry of the trial court’s judgment.
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¶ 19 In a dissenting opinion, Judge Murphy expressed disagreement with his
colleagues’ conclusion that defendant had invited any error that the trial court might
have committed in the course of refusing to instruct the jury concerning the law of
self-defense and concluded that the trial court had committed prejudicial error by
refusing to instruct the jury that it was entitled to acquit defendant on the basis of
self-defense. Hooper, ¶¶ 25–26, 50 (Murphy, J., dissenting). In support of his
determination that defendant had not invited the trial court’s alleged error in
refusing to instruct the jury concerning the law of self-defense and that defendant
had properly preserved this issue for purposes of appellate review, Judge Murphy
pointed to State v. Rowe, 231 N.C. App. 462 (2013), which held that “a request for
instructions constitutes an objection” as required by N.C. R. App. P. 10(a)(2). Hooper,
¶ 35 (Murphy, J., dissenting) (quoting Rowe, 231 N.C. App. at 469). As a result of the
fact that “[d]efendant [had] specifically requested the trial court to include a jury
instruction on [self-defense] and argued that point before the [trial] court,” Judge
Murphy had “properly preserved this issue for appellate review.” Hooper, ¶ 37
(Murphy, J., dissenting) (third and fourth alterations in original) (quoting Rowe, 231
N.C. App. at 469–70).
¶ 20 In Judge Murphy’s view, his colleagues’ reliance upon White was misplaced
given that, in White, the defendant’s trial counsel had specifically agreed with the
language that he later claimed to have been erroneous. Hooper, ¶ 38 (Murphy, J.,
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dissenting) (citing White, 349 N.C. at 568–70). In addition, Judge Murphy noted that
the defendant’s trial counsel in White had failed to object to the challenged trial court
instruction both before and after that instruction had been delivered, Hooper, ¶ 38
(Murphy, J., dissenting) (citing White, 349 N.C. at 568–70), while, in this case,
defendant’s request for the delivery of a self-defense instruction had been rejected by
the trial court, Hooper, ¶ 39 (Murphy, J., dissenting).
¶ 21 Finally, Judge Murphy concluded that the record contained sufficient evidence
to support the delivery of the requested self-defense instruction and that the trial
court’s refusal to deliver that instruction constituted error. Hooper, ¶ 47 (Murphy,
J., dissenting). In Judge Murphy’s opinion, the evidence, when taken in the light
most favorable to defendant, tended to show that Ms. Thomas had fired a shot before
the altercation began and that defendant reasonably believed “that the conduct [was]
necessary to defend himself . . . against [Ms. Thomas’] imminent use of unlawful
force.” Hooper, ¶¶ 46–47 (Murphy, J., dissenting) (first alteration in original)
(quoting N.C.G.S. § 14-51.3(a) (2019)). Finally, arguing in reliance upon State v.
Gomola, 257 N.C. App. 816 (2018), Judge Murphy would have held that the trial
court’s failure to deliver the requested self-defense instruction “deprived the jury of
the ability to decide the issue of whether [defendant’s] participation in the altercation
was lawful,” Hooper, ¶ 48 (Murphy, J., dissenting) (quoting Gomola, 257 N.C. App at
823), a determination which, if made, would “have compelled the jury to return a
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verdict of ‘not guilty,’ especially in light of the jury finding that [d]efendant was not
guilty of possession of a firearm,” Hooper, ¶ 49 (Murphy, J., dissenting). Defendant
noted an appeal from the Court of Appeals’ decision to this Court based upon Judge
Murphy’s dissent.
II. Analysis
A. Standard of Review
¶ 22 This Court reviews decisions of the Court of Appeals for the purpose of
determining whether they contain any error of law. N.C. R. App. P. 16(a). In deciding
whether a defendant is entitled to the delivery of a requested jury instruction, we
conduct a de novo review for the purpose of determining “whether each element of
the defense is supported by the evidence, when taken in the light most favorable to
defendant.” State v. Mercer, 373 N.C. 459, 462 (2020) (citing State v. Mash, 323 N.C.
339, 348 (1988)).
B. Preservation and Invited Error
¶ 23 In seeking to persuade us that he had properly preserved his challenge to the
trial court’s refusal to instruct the jury concerning the law of self-defense for purposes
of appellate review, defendant begins by noting that N.C. R. App. P. 10(a)(2) provides
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, stating distinctly that to
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which objection is made and the grounds of the objection;
provided that opportunity was given to the party to make
the objection out of the hearing of the jury, and, on request
of any party, out of the presence of the jury.
According to defendant, “a request for an instruction ‘constitutes an objection,’ ” citing
Rowe, 231 N.C. App. at 469. In addition, defendant directs our attention to Rule 21
of the General Rules of Practice for the Superior and District Courts, which requires
that a trial court provide counsel with an opportunity to lodge objections at the jury
instruction conference and at the conclusion of the trial court’s jury instructions and
prior to the beginning of the jury’s deliberations, N.C. Gen. R. Prac. Super. & Dist.
Ct. 21 ¶¶ 1–2, and authorizes the trial court to recall the jury and correct any of the
instructions that it had previously delivered, id. ¶ 3. Defendant asserts that, since
his trial counsel had requested the delivery of a self-defense instruction “before the
trial court charged the jury” and “before the trial court provided the required second
opportunity for ‘additional instructions or for corrections or any objections to the
instructions given’ ” at the conclusion of its instructions to the jury, defendant had
properly preserved his challenge to the trial court’s failure to instruct the jury
concerning the issue of self-defense for purposes of appellate review.
¶ 24 In addition, defendant asserts that the majority at the Court of Appeals had
erred by concluding that he had invited the trial court’s allegedly erroneous refusal
to instruct the jury concerning the law of self-defense, arguing that the Court of
Appeals had “incorrectly relied on this Court’s decision in State v. White . . . as support
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for [its] conclusion.” In defendant’s view, our decision in White is not controlling with
respect to this issue given that, in this case, defendant actually requested the delivery
of a self-defense instruction, “whereas in White, the trial court instructed the jury
based on the instruction defense counsel requested and the proposed language they
agreed to.” Hooper, ¶ 39.
¶ 25 On the other hand, the State contends that defendant failed to comply with
N.C.G.S. § 15A-905(c)(1), which requires that a defendant:
[g]ive notice to the State of the intent to offer at trial a
defense of . . . self-defense. Notice of defense as described
in this subdivision is inadmissible against the defendant.
Notice of defense must be given within 20 working days
after the date the case is set for trial pursuant to G.S. 7A-
49.4, or such other later time as set by the court.
N.C.G.S. § 15A-905(c)(1) (2021). According to the State, defendant’s failure to give
notice of his intention to assert a claim of self-defense “did not preserve the issue of a
self-defense instruction and, in fact, invited error.” In addition, the State contends
that the Court of Appeals correctly concluded that defendant’s failure to object to the
trial court’s failure to deliver a self-defense instruction during the jury instruction
conference or at the conclusion of the instructions that the trial court actually
delivered to the jury constituted invited error, with “a defendant who [has] invite[d
an] error ha[ving] waived his right to all appellate review concerning the invited
error, including plain error review,” quoting Barber, 147 N.C. App. at 74, and citing
State v. Roseboro, 344 N.C. 364, 373 (1996). The State further contends that, even if
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defendant had not invited the trial court’s alleged error, “it is still unpreserved
and . . . only plain error review would be available,” citing Lawrence, 365 N.C. at 512,
with plain error review not having been available to defendant in this case “because
[he] did not specifically and distinctly contend plain error in the trial court’s decision.”
¶ 26 A careful review of the record satisfies us that the defendant properly
preserved his challenge to the trial court’s failure to deliver a self-defense instruction
for purposes of appellate review. As has already been noted, the literal language of
N.C. R. App. P. 10(a)(2) states 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.” The record in this
case clearly reflects that defendant requested the trial court to instruct the jury
concerning the issue of whether he was entitled to be acquitted on the grounds of self-
defense prior to the point in time at which the trial court instructed the jury. In
addition, this Court clearly held almost four decades ago in Wall v. Stout, 310 N.C.
184 (1984), that the purpose sought to be achieved by N.C. R. App. P. 10(a)(2)1 “is met
when a request to alter an instruction has been submitted and the trial judge has
considered and refused the request,” with the trial court’s “refusal at the charge
1 Wall refers to this rule as N.C. R. App. P. 10(b)(2) throughout its text. See generally
Wall, 310 N.C. 184. However, as a result of an amendment that became effective 1 October
2009, the provisions of former N.C. R. App. P. 19(b)(2) were transferred to N.C. R. App. P.
10(a)(2). As a result, decisions construing former N.C. R. App. P. 10(b)(2) are equally
applicable to current N.C. R. App. P. 10(a)(2).
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Opinion of the Court
conference to instruct in accordance with [a party’s] proposals represent[ing] the
judge’s final decision” and with “further objections [being] not only useless but
wasteful of the court’s time.”2 Id. at 189; see also State v. Smith, 311 N.C. 287, 290
(1984) (stating that the defendant was not required “to repeat his objection to the jury
instructions, after the fact, in order to properly preserve his exception for appellate
review”); Rowe, 231 N.C. App. at 469–70 (holding that, given that the defendant had
“specifically requested the trial court to include a jury instruction on simple assault
and argued that point before the court, he had properly preserved the instructional
issue in question for purposes of appellate review). As a result, given that defendant
requested the trial court to instruct the jury concerning the issue of self-defense
“before the jury retire[d] to consider its verdict,” N.C. R. App. P. 10(a)(2), and given
that the trial court expressly denied defendant’s request for the delivery of the
requested self-defense instruction,3 defendant’s challenge to the trial court’s allegedly
2 As was the case in Wall, nothing in the record before us in this case provides any
basis for a conclusion that defendant’s trial counsel had a change of heart concerning the
appropriateness of the requested self-defense instruction. Instead, the trial court in this case
heard and rejected defendant’s request for an additional instruction, making what happened
in this case indistinguishable from the series of events that this Court held in Wall to be
sufficient to preserve the rejection of a party’s request for instructions for purposes of
appellate review.
3 The fact that defendant requested the delivery of a self-defense instruction makes
this case fundamentally different from White, in which the trial court agreed to give a
peremptory instruction with respect to non-statutory mitigating circumstances at
defendant’s capital sentencing hearing, defendant agreed to the language that the trial court
proposed and “neither suggested nor provided any other language either orally or in writing,”
“the trial court instructed the jury exactly as it had indicated” that it would, and defendant
“did not object” after the conclusion of the trial court’s instructions. White, 349 N.C. at 569.
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Opinion of the Court
erroneous refusal to deliver a self-defense instruction to the jury was properly
preserved for purposes of appellate review even though defendant did not raise the
self-defense issue at the jury instruction conference, expressed initial agreement with
the trial court’s proposed instructions, and did not lodge any sort of objection to the
instructions that the trial court actually gave at the conclusion of the trial court’s
final charge to the jury.4
¶ 27 The fact that defendant failed to provide notice of his intent to rely upon self-
defense in advance of trial as required by N.C.G.S. § 15A-905(c)(1) does not call for a
different result with respect to this issue. Subsection § 15A-905(c)(1) appears in the
statutory provision setting out a criminal defendant’s obligation to make disclosure
to the State during the discovery process. A party’s failure to comply with his, her,
or its discovery-related obligations is addressed in N.C.G.S. § 15A-910, which sets out
a number of sanctions that can be imposed in the event that a party fails to provide
discovery in accordance with applicable law, including the entry of “other appropriate
In other words, the trial court in White had no basis for believing that defendant objected to
the manner in which it had instructed the jury concerning non-statutory mitigating
circumstances while the trial court in this case was presented with and rejected a request for
the delivery of a self-defense instruction.
4 Our determination that defendant properly preserved his challenge to the trial
court’s refusal to instruct the jury concerning the law of self-defense suffices to dispose of the
State’s argument that defendant invited the trial court’s alleged error. As N.C.G.S. § 15A-
1443(c) provides, “[a] defendant is not prejudiced by the granting of relief which he has sought
or by error resulting from his own conduct.” N.C.G.S. § 15A-1443(c) (2021). As a result, a
finding of invited error must hinge upon a party’s affirmative request for a specific action
upon the part of the trial court rather than a mere failure to lodge an objection to an action
that the trial court actually took.
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Opinion of the Court
orders.” N.C.G.S. § 15A-910(a)(4) (2021). However, before “finding any sanctions
appropriate, the court shall consider both the materiality of the subject matter and
the totality of the circumstances surrounding an alleged failure to comply with [the
applicable discovery-related statutes] or an order issued pursuant to” those statutes,
N.C.G.S. § 15A-910(b), and, in the event that it deems the imposition of sanctions
appropriate, “it must make specific findings justifying the imposed sanction,”
N.C.G.S. § 15A-910(d). Assuming, without in any way deciding, that a trial court is
authorized to refrain from instructing the jury concerning an affirmative defense of
which the defendant was required to provide notice pursuant to N.C.G.S. § 15A-
905(c)(1) as a discovery sanction on the basis that such a determination constitutes
an “other appropriate order” authorized by N.C.G.S. § 15A-910(a)(4), the record
contains no indication that the trial court considered the totality of the surrounding
circumstances in reaching that decision as required by N.C.G.S. § 15A-910(b) or made
the required “findings justifying the imposed sanction,” N.C.G.S. § 15A-910(d).5
Instead, the trial court appears to have rejected defendant’s request for the delivery
5The trial court’s ruling upon defendant’s request for instructions consisted of nothing
more than a notation that no notice had been given, that “we don’t know what was in the
[d]efendant’s mind because he exercised his constitutional right not to testify,” that
defendant’s failure to testify precluded any knowledge of “what he was thinking or what he
believed,” and that “there’s been no other evidence that . . . anything was done in self-
defense.” Although the trial court did ask a number of questions during the colloquy that it
conducted with counsel for the State and defendant, none of these questions was mentioned
in the trial court’s statement of the basis for its decision, which clearly focuses upon the
merits of defendant’s request for a self-defense instruction and does not reflect the weighing
process that is contemplated by N.C.G.S. § 15A-910(b) and (d).
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Opinion of the Court
of the requested self-defense instruction based upon a determination that the record
evidence, when taken in the light most favorable to defendant, would not have
permitted a jury to acquit defendant on the grounds of self-defense. As a result, given
that the trial court’s decision to reject defendant’s request for a self-defense
instruction does not appear to have resulted from the imposition of a discovery
sanction and given that the trial court did not take the procedural steps necessary to
justify the imposition of such a sanction upon defendant in this case, we hold that
defendant is not precluded from advancing his challenge to the trial court’s refusal to
instruct the jury concerning the law of self-defense based upon defendant’s
noncompliance with N.C.G.S. § 15A-905(c)(1) and will proceed to address the merits
of the trial court’s decision to refrain from delivering the requested self-defense
instruction.
C. Sufficiency of the Evidence to Support a Self-Defense Instruction
¶ 28 In seeking to persuade us that the record developed before the trial court in
this case supports the delivery of the requested self-defense instruction, defendant
asserts that the record contains conflicting evidence concerning the nature of the
events that occurred in the hotel room on the night of the alleged assault. Among
other things, defendant notes that Ms. Donnell testified that Ms. Thomas had told
her that “a shot was fired, a scuffle happened, and then a fire, . . . and then he looked
down at his leg.” In addition, defendant points out that Ms. Machoca testified that
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Opinion of the Court
Ms. Thomas had acquired a gun prior to her visit to defendant’s hotel room and that
the jury had acquitted defendant of being a felon in possession of a firearm.
Defendant asserts that, even though “there may be contradictory evidence from the
State or discrepancies in the defendant’s evidence, . . . the trial court must charge the
jury on self-defense where there is evidence that the defendant acted in self-defense,”
citing State v. Coley, 375 N.C. 156, 163 (2020), with it being “within the purview of
the jury to resolve any conflicts in the evidence presented at trial and to render
verdicts upon being properly instructed by the trial court,” Coley, 375 N.C. at 163.
¶ 29 The State, on the other hand, appears to contend that the record precluded the
delivery of a self-defense instruction in this case given that the undisputed evidence
tended to show that defendant was the initial aggressor or that this fact precluded a
finding of prejudicial error. In the State’s view, the record provides ample “reason for
the victim to need to defend herself against [d]efendant,” including the existence of
evidence tending to show that defendant made unwelcome visits to the home of Ms.
Thomas’ mother “almost every day” that were accompanied by “repeated verbal
threats,” evidence tending to show that defendant’s mother had to serve as an
intermediary between defendant and Ms. Thomas, and evidence tending to show that
Ms. Thomas felt it necessary to bring Mr. Reaves to the funeral of defendant’s great
aunt funeral to assist in her interactions with defendant. Aside from the presence of
evidence “indicative of an abusive relationship with [d]efendant,” the State notes that
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Opinion of the Court
the record contains evidence concerning defendant’s history of inflicting physical
abuse upon his romantic partners. In other words, the State contends that defendant
failed to “present[ ] competent and sufficient evidence to warrant the self-defense
instruction,” quoting Coley, 375 N.C. at 162, and that the delivery of a self-defense
instruction would not have changed the ultimate outcome at defendant’s trial given
the strength of the State’s evidence and the fact that the wound that defendant
sustained was not inflicted with a firearm like the one that Ms. Thomas obtained
prior to 4 March 2017. As a result, since the evidence against defendant was both
“overwhelming and uncontroverted,” Hooper, ¶ 21 (quoting Chavez, ¶ 13), the State
contends that any error that the trial court might have committed in refusing
defendant’s request for the delivery of a self-defense instruction could not have
prejudiced defendant’s chances for a more favorable outcome at trial.
¶ 30 According to N.C.G.S. § 14-51.3(a),
[a] person is justified in using force, except deadly force,
against another when and to the extent that the person
reasonably believes that the conduct is necessary to defend
himself or herself or another against the other’s imminent
use of unlawful force.
N.C.G.S. § 14-51.3(a) (2021). As the relevant statutory language indicates, a
defendant is not entitled to rely upon self-defense unless he or she (1) reasonably
believes (2) that his or her use of force (3) is necessary (4) to defend himself or herself
against the imminent use (5) of unlawful force by another. As this Court has
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Opinion of the Court
previously stated, “[t]he reasonableness of a [defendant’s] belief is to be determined
by the jury from the facts and circumstances as they appeared to him at the time” he
used force against his adversary. State v. Gladden, 279 N.C. 566, 572 (1971).
¶ 31 A careful review of the record persuades us that the record contains no
evidence tending to show that defendant assaulted Ms. Thomas for the purpose of
defending himself from the use of unlawful force on the part of Ms. Thomas.
Accepting, as we are required to do, the truthfulness of Ms. Donnell’s recitation of the
statements that Ms. Thomas made to her and the truthfulness of Officer Joyce’s
recitation of the statements that defendant made to him, the record contains nothing
more than an assertion that an initial (and possibly a second) gunshot occurred before
defendant assaulted Ms. Thomas.6 In order for defendant to have been entitled to
6 A careful study of the record reveals no evidence that any of the gunshots described
in the testimony of the various witnesses resulted from any sort of unprovoked intentional
act of the type that would be necessary to support a valid claim of self-defense. For example,
defendant told Officer Joyce that, after Ms. Thomas pulled out the firearm, he advanced upon
her in order to take the gun away, at which point she shot him during the ensuing struggle.
As a result, in this version of the relevant events, Ms. Thomas did nothing more than display
a firearm before defendant attacked her, with there being no evidence that Ms. Thomas
pulled out the gun before the argument between the two of them began or any evidence that
Ms. Thomas made any menacing gesture or uttered any threats before defendant’s assault
began. Similarly, Ms. Donnell testified that Ms. Thomas stated that she had pointed the gun
at defendant, that she asked defendant if she was going to kill her, that a shot had been fired,
and that another shot was fired during the scuffle. Aside from the fact that nothing in Ms.
Donnell’s description of Ms. Thomas’ statements indicates that either gunshot had been fired
intentionally, Ms. Donnell’s testimony reflects that, at the time that Ms. Thomas pointed the
gun at defendant, she asked defendant if he was going to kill her, a set of circumstances that
is inconsistent with the sort of attack upon the defendant or one of defendant’s relatives or
friends that occurred in cases like State v. Greenfield, 375 N.C. 434, 442 (2020); State v. Lee,
370 N.C. 671, 672 (2018); and State v. Moore, 363 N.C. 793, 797–98 (2010). As a result, we
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Opinion of the Court
have used force against Ms. Thomas in self-defense, the record would have had to
have contained evidence that the force that defendant used against Ms. Thomas
stemmed from an attempt to protect himself against an unlawful use of force on the
part of Ms. Thomas. However, even if the first gunshot occurred before defendant
assaulted Ms. Thomas, the record contains no indication that defendant assaulted for
the purpose of defending himself from any unlawfully assaultive conduct on the part
of Ms. Thomas.
¶ 32 Although Ms. Donnell described Ms. Thomas as having stated that she and
defendant were standing in front of one another; that Ms. Thomas “had [the gun]
pointed at” defendant and asked defendant if he was going to kill her; that defendant
had requested that Ms. Thomas give him the gun; that each of them repeated the
statements that they had just made; and that “a fire, . . . a bullet happened again,
and [defendant] looked down at his leg,” causing her to realize that she had “shot him
in the leg” and although Officer Joyce testified that defendant claimed to have
attempted to take a gun away from Ms. Thomas, none of this evidence tended to show
that defendant assaulted Ms. Thomas for the purpose of protecting himself from any
unlawful use of force on the part of Ms. Thomas. Put another way, the record does
not contain any evidence tending to show that Ms. Thomas threatened defendant or
do not believe that the evidence, even when taken in the light most favorable to defendant,
supports an inference that defendant only attacked Ms. Thomas after she intentionally fired
a weapon at him.
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Opinion of the Court
that Ms. Thomas pointed a gun toward defendant in the absence of any provocation
on his part prior to his assault upon her. On the contrary, the statements that Ms.
Donnell attributed to Ms. Thomas reflect a fear on the part of Ms. Thomas that
defendant would kill her. In the absence of any affirmative evidence tending to show
that defendant assaulted Ms. Thomas based upon a perceived need to defend himself
against unlawful attack, the trial court was not required to instruct the jury
concerning the issue of self-defense. As a result, the trial court did not err by refusing
to instruct the jury that it was entitled to acquit defendant of assault on the grounds
of self-defense.
III. Conclusion
¶ 33 Thus, for the reasons set forth above, we hold that defendant properly
preserved his challenge to the trial court’s refusal to instruct the jury concerning the
law of self-defense for purposes of appellate review and that the trial court did not
err by refusing to deliver defendant’s requested self-defense instruction. As a result,
the Court of Appeals’ decision is modified and affirmed.
MODIFIED AND AFFIRMED.
Chief Justice NEWBY concurring in part and dissenting in part.
¶ 34 On the merits, this case asks whether the trial court erred when it denied
defendant’s request for a jury instruction on self-defense. Were this issue preserved,
I agree with the majority that the trial court did not err. Because defendant failed to
preserve this issue for appellate review, however, this Court should not reach the
merits. Further, defendant failed to provide timely notice to the State of his intent to
offer a defense of self-defense as required by N.C.G.S. § 15A-905(c). The trial court,
therefore, appropriately exercised its discretion under N.C.G.S. § 15A-910(a) in
denying defendant’s requested instruction. Accordingly, I respectfully concur in part
and dissent in part.
¶ 35 “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, stating distinctly that to which objection is made
and the grounds of the objection . . . .” N.C. R. App. P. 10(a)(2). A trial court must give
the parties or their attorneys an opportunity to object to the jury instructions (1) at
the charge conference, and (2) “[a]t the conclusion of the charge and before the jury
begins its deliberations.” Gen. R. Prac. Super. & Dist. Cts. 21. This Court has held
that “[w]here a defendant tells the trial court that he has no objection to an
instruction,” both at the charge conference and after the trial court charges the jury,
“he will not be heard to complain on appeal.” State v. White, 349 N.C. 535, 570, 508
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Newby, C.J., concurring in part and dissenting in part
S.E.2d 253, 275 (1998).
¶ 36 Relying on the decision in Wall v. Stout, the majority contends that the
objection requirement in Rule 10(a)(2) is achieved whenever “a request to alter an
instruction has been submitted and the trial judge has considered and refused the
request.” Wall v. Stout, 310 N.C. 184, 189, 311 S.E.2d 571, 574 (1984). This
conclusion, however, ignores the possibility that a party’s other conduct, including
the timing of any request, could render a mere request inadequate to preserve an
objection.
¶ 37 In Wall, the trial court held a charge conference after the conclusion of all
evidence and described the pattern jury instructions it intended to use. Id. at 188,
311 S.E.2d at 574. At that time, the plaintiffs’ counsel objected and asked the trial
court to remove various portions of the proposed instructions. Id. The trial court
overruled the request and instructed the jury as described at the charge conference.
Id. The plaintiffs’ counsel made no additional objections to the instructions after the
trial court’s jury charge concluded. Id. After the jury returned a verdict for defendant,
the plaintiffs appealed seeking a new trial based on the jury instructions used by the
trial court. See id. at 190, 311 S.E.2d at 575. Before turning to the merits of the
plaintiffs’ argument, this Court considered whether the plaintiffs properly preserved
this issue for appellate review. See id. at 187−89, 311 S.E.2d at 574−75.
¶ 38 This Court noted that “[i]n most instances” the purpose of Rule 10(a)(2) is “met
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2022-NCSC-114
Newby, C.J., concurring in part and dissenting in part
when a request to alter an instruction has been submitted and the trial judge has
considered and refused the request” because it will usually be “obvious that further
objection at the close of instructions would be unavailing.” Id. at 189, 311 S.E.2d at
574 (emphasis added). This reasoning held true in Wall because
[o]n the basis of the record . . . it appear[ed] plain that the
trial judge’s refusal at the charge conference to instruct in
accordance with plaintiffs’ proposals represented the
judge’s final decision and further objections would have
been not only useless but wasteful of the court’s time. As
such, we hold that plaintiffs’ failure to object following the
giving of the jury instructions does not foreclose review by
this Court of plaintiffs’ exceptions . . . .
Id. at 189, 311 S.E.2d at 575. The plaintiffs in Wall objected to the trial court’s
proposed instructions at the first opportunity required by Rule 21 of the General
Rules of Practice—the charge conference—and thereafter did nothing to indicate they
had changed their position. Thus, this Court concluded, based on those facts, that no
further action was required to preserve plaintiffs’ objection. Id.
¶ 39 Here, unlike in Wall, defendant’s conduct rendered his singular request for a
self-defense instruction insufficient to preserve the issue for appellate review. First,
at the Rule 21 charge conference, defendant affirmatively agreed to the trial court’s
proposed jury charge that did not include a self-defense instruction. The following
morning just before the trial court instructed the jury, defendant orally requested
that the trial court add a self-defense instruction to the jury charge. At that point,
the trial judge asked both defendant and the State for argument on whether it should
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Newby, C.J., concurring in part and dissenting in part
grant defendant’s request and explained its reasoning for denying the request.
Defendant did not note an objection to the trial court’s denial, and the trial court
proceeded to charge the jury without the requested self-defense instruction. Finally,
once the jury charge was complete, defendant told the trial court that he had no
“requests for additional instructions or for corrections or . . . objections to the
instructions given to the jury.”
¶ 40 Based on this sequence of events, it was not “obvious” at the conclusion of the
jury charge whether defendant objected or assented to the trial court’s instructions.
Wall, 310 N.C. at 189, 311 S.E.2d at 574. It is entirely possible that the reason
defendant did not object to the trial court’s denial of his request and subsequently
agreed with the trial court’s jury instructions is because defendant changed his mind
upon hearing the trial court’s reasoning for denying his request and agreed that a
self-defense instruction was improper. Accordingly, Wall is distinguishable and
should not control the outcome of this case. Instead, this case is controlled by White
where we said that “defense counsel . . . did not object when given the opportunity
either at the charge conference or after the charge had been given,” so any issue
regarding a requested instruction is not preserved. See White, 349 N.C. at 570, 508
S.E.2d at 275. Thus, defendant’s request for a self-defense instruction was, without
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2022-NCSC-114
Newby, C.J., concurring in part and dissenting in part
more, insufficient to preserve the issue for appellate review.1
¶ 41 Additionally, the majority concludes that the trial court could not have denied
defendant’s requested instruction under the notice requirement of N.C.G.S. § 15A-
905(c) because it failed to first consider the “totality of the circumstances,” as required
by N.C.G.S. § 15A-910(b). The record does not support this conclusion.
¶ 42 During discovery, a criminal defendant must “[g]ive notice to the State of the
intent to offer at trial a defense of . . . self-defense.” N.C.G.S. § 15A-905(c)(1) (2021).
If a defendant fails to satisfy this or other discovery requirements, the trial court
may: “(1) [o]rder the party to permit the discovery or inspection, or (2) [g]rant a
continuance or recess, or (3) [p]rohibit the party from introducing evidence not
disclosed, or (3a) [d]eclare a mistrial, or (3b) [d]ismiss the charge, with or without
prejudice, or (4) [e]nter other appropriate orders.” N.C.G.S. § 15A-910(a) (2021).
Before ordering any remedy under subsection (a), the trial court must “consider both
the materiality of the subject matter and the totality of the circumstances
surrounding [the] alleged failure to comply with” the notice requirement and “make
specific findings justifying the imposed sanction.” N.C.G.S. § 15A-910(b), (d) (2021).
¶ 43 However, “[t]he choice of which sanction to apply, if any, rests in the sound
discretion of the trial court.” State v. Gladden, 315 N.C. 398, 412, 340 S.E.2d 673, 682
1 Because defendant failed to preserve his objection to the trial court’s jury
instructions under Rule 10(a)(2) of the Rules of Appellate Procedure, it is unnecessary to
address whether defendant’s conduct constituted invited error.
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Newby, C.J., concurring in part and dissenting in part
(1986); see also State v. Dukes, 305 N.C. 387, 390, 289 S.E.2d 561, 563 (1982) (“This
statute . . . is permissive and not mandatory, and the remedy for failure to provide
discovery rests within the trial court’s discretion.”). Accordingly, the trial court’s
selected remedy under N.C.G.S. § 15A-910(a) “is not reviewable absent a showing of
an abuse of that discretion.” Gladden, 315 N.C. at 412, 340 S.E.2d at 682. We reverse
a trial court’s decision for abuse of discretion “only upon a showing that its ruling [is]
so arbitrary that it could not have been the result of a reasoned decision.” Id. (citing
State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985)).
¶ 44 Both parties agree that defendant failed to provide the required notice of his
intent to offer a defense of self-defense. As such, the trial court acted within its
statutory discretion to enter any “appropriate order” under N.C.G.S. § 15A-910(a)
when it denied defendant’s request for a self-defense instruction. Further, the trial
court complied with the requirements of N.C.G.S. § 15A-910(b) and (d) before denying
defendant’s request. Once defendant requested a self-defense instruction, the trial
court asked defendant and the State for argument on whether it should grant the
request and then provided its basis for denying the request on the record.
¶ 45 Specifically, the trial court considered the fact that no notice was given to the
State as required by N.C.G.S. § 15A-905(c), the State objected to the inclusion of the
instruction, defendant agreed to the proposed instructions the previous day, the
evidence at trial did not support the inclusion of a self-defense instruction, and the
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2022-NCSC-114
Newby, C.J., concurring in part and dissenting in part
jury could not properly assess what defendant believed at the time of the incident
because defendant chose not to testify. See N.C.P.I.−Crim. 308.40 (2020) (providing
that a standard self-defense instruction includes consideration of what the defendant
believed at the time he or she acted with force). The trial court recorded these findings
orally on the record.
¶ 46 These actions satisfy the analysis required by N.C.G.S. § 15A-910(b) and (d).
Since the trial court weighed various factors related to the parties’ conduct and the
evidence at trial, it did not abuse its discretion under N.C.G.S. § 15A-910(a) in
denying defendant’s request for a self-defense instruction.
¶ 47 Nonetheless, were the Court to reach the question of whether the trial court
erred in refusing to give a self-defense instruction, I agree with the majority that the
trial court did not err. Accordingly, I concur in part and dissent in part.
Justices BERGER and BARRINGER join in this concurring in part and
dissenting in part opinion.
Justice EARLS concurring in part and dissenting in part.
¶ 48 “This Court has consistently held 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. Coley, 375 N.C. 156, 159 (2020) (quoting State v. Morgan, 315 N.C. 626, 643 (1986)).
“In determining whether a defendant has presented competent evidence sufficient to
support a self-defense instruction, we take the evidence as true and consider it in the
light most favorable to the defendant.” Coley, 375 N.C. at 159. Applying this well-
established standard to the facts of this case, it was error for the trial court to fail to
instruct the jury on self-defense. To hold otherwise, the majority advances an
astounding proposition: Even if, as Mr. Hooper’s evidence suggests, Ashley Thomas
had grabbed a gun, pointed it at him, fired it, and he then tried to wrestle the gun
away from her, there is nevertheless no evidence “tending to show that defendant
assaulted Ms. Thomas based upon a perceived need to defend himself against
unlawful attack.” The notion that the jury could not reasonably infer that Mr. Hooper
feared for his life after being shot in his hotel room, a place he had a legal right to be,
goes against common sense and well-established precedent. Therefore, I concur with
the majority that this issue was preserved for review on appeal, but I dissent from
the conclusion that Mr. Hooper’s evidence in this case did not justify the submission
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2022-NCSC-114
Earls, J., concurring in part and dissenting in part
of a self-defense instruction to the jury. The jury was free to believe the State’s
witnesses over Mr. Hooper’s, but they needed to know the law of self-defense to
properly assess his guilt.
A. Defendant’s Evidence
¶ 49 Though Mr. Hooper did not testify at his trial, his statement regarding the
incident, made just hours afterwards, was in evidence. He told law enforcement that
Ms. Thomas, the alleged victim, entered his hotel room with their son on 4 March
2017. Ms. Thomas and Mr. Hooper had a conversation that turned into an argument,
at which point Ms. Thomas pulled out a gun that she had received from a friend. Mr.
Hooper explained that he approached her to take the gun away from her, she fired a
shot, a struggle ensued, and she shot the gun a second time, this time hitting Mr.
Hooper in the leg.
¶ 50 Mr. Hooper’s mother, Felicia Donnell, corroborated this version of events. She
testified that Ms. Thomas called her after the incident took place to inform Ms.
Donnell that she shot Ms. Donnell’s son. According to Ms. Donnell, Ms. Thomas
explained that she pointed a gun at Mr. Hooper and fired a shot after Mr. Hooper
demanded that she give him the weapon. This shot did not hit Mr. Hooper. Ms.
Thomas told Ms. Donnell that a scuffle then ensued during which she fired a second
shot. Ms. Thomas said that this second shot hit Mr. Hooper’s leg. Ms. Donnell testified
that her understanding was that there was no physical altercation between Ms.
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Earls, J., concurring in part and dissenting in part
Thomas and Mr. Hooper until after the first shot was fired. She further testified that
the assault took place during the interval between shots, when Mr. Hooper choked
and punched Ms. Thomas.
¶ 51 Another one of Mr. Hooper’s witnesses and the mother of one of his sons—
Marcelina Machoca—testified that she communicated with Ms. Thomas before the
incident took place. Ms. Machoca explained that Ms. Thomas was upset that Mr.
Hooper had spent time with Ms. Machoca because Mr. Hooper and Ms. Thomas were
having conversations about getting back together. According to Ms. Machoca, during
this conversation, Ms. Thomas told her that Ms. Thomas had a gun and would “have
no problem” using it against Mr. Hooper.
B. Requirement of Self-Defense Instruction
¶ 52 In the light most favorable to Mr. Hooper, this evidence shows that, before the
incident occurred, Ms. Thomas acquired a gun that she felt prepared to use on Mr.
Hooper. On the day of the incident, Ms. Thomas pointed a gun at him, which she then
fired. Mr. Hooper attempted to disarm her to protect himself, but she ultimately shot
him in the leg. This evidence, supported by two witnesses, as well as by Mr. Hooper’s
own statement about what happened, which he made to a police officer while he was
in the hospital receiving treatment for his injury, is sufficient to warrant a jury
instruction on self-defense.
¶ 53 The majority recognizes that Mr. Hooper introduced this evidence but
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nonetheless concludes that there is “no evidence” that Mr. Hooper assaulted Ms.
Thomas in self-defense. The majority explains that “even if the first gunshot occurred
before defendant assaulted Ms. Thomas, the record contains no indication that
defendant assaulted for the purpose of defending himself from any unlawfully
assaultive conduct on the part of Ms. Thomas.” This is a remarkably untenable
conclusion. In fact, and very much to the contrary, Mr. Hooper’s evidence tended to
show that his disgruntled ex-girlfriend arrived at his hotel room, at which point an
argument ensued. The evidence suggests that, during this argument, Ms. Thomas
pointed a gun at him and fired before he used any force against her. A predictable
response to such conduct is to use physical force as a means of self-protection. This
response was made even more obviously necessary by the fact that Ms. Thomas then
fired the gun a second time, hitting Mr. Hooper in his leg.
¶ 54 Thus, taking Mr. Hooper’s version of events in the light most favorable to him,
a reasonable jury could conclude that, after Ms. Thomas pointed the gun at him and
fired once, (1) Mr. Hooper reasonably believed his conduct was necessary to defend
himself (2) from Ms. Thomas’s imminent use of unlawful force.1 See N.C.G.S. § 14-
51.3(a) (2021). The majority’s conclusion that “none of this evidence tended to show
1 The majority repeatedly interprets the evidence in the light most favorable to the
State, which is, of course, improper. For example, the majority’s “careful study of the record”
suggests that Mr. Hooper was not trying to defend himself when he tried to take the gun
away from Ms. Thomas but instead was unlawfully assaulting her. That inference implicitly
favors the State when the Court should be making an inference in favor of Mr. Hooper.
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Earls, J., concurring in part and dissenting in part
that defendant assaulted Ms. Thomas for the purpose of protecting himself from any
unlawful use of force” defies logic, common sense, and countless cases that have
examined whether a person who is being shot at or faces the imminent possibility of
being shot has the right to defend themselves. See, e.g., State v. Greenfield, 375 N.C.
434, 436–37, 442 (2020) (holding that the evidence was sufficient to entitle defendant
to a self-defense jury instruction where defendant’s evidence was that he did not point
his gun at anyone until the surviving victim emerged from the bedroom pointing
a gun at him); State v. Lee, 370 N.C. 671, 672, 676–77 (2018) (holding that a self-
defense instruction was warranted where defendant asserted that he fired the fatal
shot only after the victim turned the gun on him and defendant introduced evidence
supporting his version of events); State v. Moore, 363 N.C. 793, 794, 798 (2010)
(holding that defendant was entitled to a jury instruction on self-defense, despite
conflict between defendant’s evidence and the State’s evidence, where victim of
shooting was unarmed but evidence presented at trial, when viewed in the light most
favorable to defendant, suggested the victim could have had a gun); see also State v.
Irabor, 262 N.C. App. 490, 494–95 (2018) (holding that defendant was entitled to a
jury instruction on self-defense, despite the State’s contention that the evidence was
conflicting, where victim of shooting did not have a gun but evidence presented at
trial, when viewed in the light most favorable to defendant, suggested the victim
could have been armed); State v. Johnson, 184 N.C. 637, 645 (1922) (holding that the
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Earls, J., concurring in part and dissenting in part
defendant was entitled to a jury instruction on self-defense where there was evidence
that defendant did not stab the victim with a knife until the victim assaulted him).
¶ 55 The majority cites Mr. Hooper’s “history of inflicting physical abuse upon his
romantic partners” as part of the State’s evidence that a self-defense instruction was
unwarranted under the circumstances. But the evidence introduced at trial indicates
that this “history” is much more limited than the majority suggests. First, Ms.
Machoca testified on cross-examination that several years earlier, Mr. Hooper “pulled
out a gun on” her brother on one occasion and assaulted her on another. Ms. Machoca
was careful to emphasize that the incidents took place years ago, and she provided
no other context or details about what happened. Additionally, Ms. Donnell testified
on cross-examination that Ms. Thomas and Mr. Hooper’s “relationship is like nitro
and glycerin.” However evocative the characterization, and regardless of how
extensive or limited this history is, such evidence is irrelevant to the question of
whether Mr. Hooper’s evidence merits a self-defense instruction. This point
highlights a larger, key principle in determining whether a self-defense instruction
is proper: The State’s evidence, however convincing, cannot negate evidence
presented by a defendant for the purpose of determining whether a jury should be
instructed on self-defense. See, e.g., State v. Greenfield, 375 N.C. at 440 (quoting State
v. Mash, 323 N.C. 39, 348 (1988)) (“ ‘To resolve whether a defendant is entitled to a
requested instruction, we review de novo whether each element of the defense is
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Earls, J., concurring in part and dissenting in part
supported by the evidence, when taken in the light most favorable to defendant.’ ”).
¶ 56 The State could have offered hours upon hours of testimony demonstrating
that Mr. Hooper was the aggressor and was therefore not justified in assaulting Ms.
Thomas. Indeed, the State may have offered significant evidence to rebut every
element of the self-defense instruction. The question for the trial court, however, was
whether Mr. Hooper offered sufficient competent evidence of each element of self-
defense such that a reasonable jury could, if they believed that evidence, conclude
that he acted in self-defense in assaulting Ms. Thomas. See, e.g., Moore, 363 N.C. at
796 (“[I]f the defendant’s evidence, taken as true, is sufficient to support an
instruction for self-defense, it must be given even though the State’s evidence is
contradictory.”); State v. Webster, 324 N.C. 385, 391 (1989) (“In determining whether
there was any evidence of self-defense presented, the evidence must be interpreted in
the light most favorable to defendant.” (citing State v. Gappins, 320 N.C. 64, 71
(1987))). If believed, Mr. Hooper’s evidence here was sufficient to show that, unarmed,
he acted in self-defense when he assaulted Ms. Thomas after Ms. Thomas pointed
and shot a gun at him.
¶ 57 Surely, if the roles were reversed and Ms. Thomas were on trial for assault,
there would be no hesitation to give the jury an instruction on self-defense. In other
words, would this Court hold that there is no evidence that Ms. Thomas was trying
to defend herself if 1) Ms. Thomas had been shot in the leg while Mr. Hooper
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sustained a bite mark, a swollen jaw, red marks on his neck, and broken fingernails,
and 2) a witness for Ms. Thomas testified that, very shortly after the incident, Mr.
Hooper told Ms. Thomas’s mother that he fired the gun once and only then did Ms.
Thomas try to choke him before he fired a second time? The answer to this question,
I believe, is a resounding no. Recognizing this likely discrepancy in result, it is
important to remember that both men and woman may be victims of intimate partner
violence.2 Assuming that Ms. Thomas must have been the victim of an assault in this
incident without properly crediting Mr. Hooper’s version of events is both counter to
the law of self-defense and runs the risk of ignoring this important reality.
¶ 58 Perhaps it is true that on 4 March 2017 Ms. Thomas was the victim of an
unprovoked assault by Mr. Hooper in his hotel room in front of their young son. But
Mr. Hooper produced evidence showing the opposite to be true, namely that he was
the victim and that Ms. Thomas, the aggressor, was angry about his behavior with
another woman and entered his room looking for a fight. It is neither this Court’s nor
2 There is debate among scholars over the relative extent to which women and men
are victims of domestic violence. Compare Amanda J. Schmesser, Real Men May Not Cry, but
They are Victims of Domestic Violence: Bias in the Application of Domestic Violence Laws, 58
Syracuse L. Rev. 171, 186–89 (2007) (reviewing studies indicating gender symmetry, that is,
just as many men as women are victims of domestic violence), with Michael S. Kimmel,
‘Gender Symmetry’ in Domestic Violence: A Substantive and Methodological Research Review,
8 Violence Against Women 1332 (2002) (reviewing research including over 100 studies
showing gender symmetry and cautioning that different conclusions are warranted when
more nuanced factors are considered such as severity of injury). There is no need to resolve
this debate for the purposes of the point being made here; all agree that intimate partner
violence must be taken seriously and that all victims, regardless of gender, deserve equal
access to laws that serve to protect and defend them.
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the trial court’s duty to determine whose evidence was more convincing. Rather, the
guiding principle courts must follow is that “although there may be contradictory
evidence from the State or discrepancies in the defendant’s evidence, . . . the trial
court must charge the jury on self-defense where there is evidence that the defendant
acted in self-defense.” Coley, 375 N.C. at 163. In light of the evidence produced by
both parties, it was the jury’s duty to determine in whose favor it weighed after
having been properly instructed on the law of self-defense in North Carolina.
¶ 59 Having concluded that a jury instruction on self-defense was warranted, I
would also hold that it was prejudicial error for the trial court to fail to give that
instruction, as there is a reasonable possibility that had the instruction been given,
a different result would have been reached at trial. See N.C.G.S. § 15A-1443(a) (2021);
State v. Bass, 371 N.C. 535, 542 (2018) (announcing that when self-defense
instruction omitted relevant language, “[d]efendant is entitled to a trial with
complete and accurate jury instructions”). I would therefore reverse the decision of
the Court of Appeals, vacate the trial court’s judgment, and remand this case to the
trial court for a new trial.