State v. Walker

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-745

No. COA22-260

Filed 15 November 2022

Guilford County, Nos. 17CRS72674, 23276

STATE OF NORTH CAROLINA

v.

TIMOTHY GERARD WALKER, Defendant.

Appeal by Defendant from judgments entered 27 August 2021 by Judge

Michael D. Duncan in Guilford County Superior Court. Heard in the Court of Appeals

20 September 2022.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Michael
Bulleri, for the State.

William D. Spence for Defendant-Appellant.

INMAN, Judge.

¶1 Defendant Timothy Gerard Walker (“Defendant”) appeals from two judgments

entered following jury verdicts convicting him of first-degree murder and possession

of a firearm by a felon. After careful review, we hold Defendant received a fair trial,

free from error.
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I. FACTUAL AND PROCEDURAL HISTORY

¶2 On 9 April 2017, Defendant and two other men, Michael Watts and James

Christopher Brooks, were relaxing at Mr. Brooks’ house in High Point, North

Carolina. Defendant and Mr. Brooks were sitting on a couch watching television and

drinking alcohol when Marcus Boyce entered Mr. Brooks’ house and began arguing

with Defendant. Mr. Brooks told the men he did not want any trouble in his house,

and Mr. Boyce said he would respect Mr. Brooks’ request. He then asked Defendant

to go outside so that they could have a “fair fight.” Defendant remained seated and

the verbal altercation continued, with Mr. Boyce telling Defendant “when I see you

again I’m going to lay you where you stand” and “[w]herever I see you at, I’m gonna

kill you. I don’t care if it’s with your son, at your grandma’s house, at the store[.]” Mr.

Boyce also put his finger in Defendant’s face and spit on him as he yelled. Mr. Boyce

never put a hand on Defendant and, although he threatened to kill Defendant at a

later time, he expressly stated he would not do so in Mr. Brooks’ home.

¶3 After Mr. Boyce—who was unarmed—made these statements, Defendant

removed a pistol from his waistband and shot Mr. Boyce at least six times. After the

first few bullets struck Mr. Boyce in the back, pelvis, arm, leg, and chest, Mr. Boyce

bent over and two bullets struck him in the head. Defendant had purchased the gun

after a prior argument with Mr. Boyce and in anticipation of a future confrontation.
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¶4 Defendant left Mr. Brooks’ house with the firearm. Mr. Brooks called 9-1-1

and emergency officials arrived at the scene to confirm the death of Mr. Boyce. Law

enforcement issued a warrant for Defendant’s arrest, and Defendant turned himself

in to the police 18 days later. Defendant spoke to his girlfriend while out of police

custody, telling her that he intended to deny being at the scene rather than claim

self-defense.

¶5 Defendant was indicted for first-degree murder and possession of a firearm by

a felon on 10 October 2017. Defendant provided notice of his intent to plead self-

defense on 26 March 2019. Defendant’s case went to trial on 23 August 2021 in

Guilford County. Defendant twice moved to dismiss the charges against him—once

at the close of the State’s evidence and once at the close of all the evidence—and both

motions were denied. Defendant then requested a “stand your ground” instruction

during the charge conference, which the trial court also denied.

¶6 On 27 August 2021, the jury found Defendant guilty on both charges.

Defendant was sentenced to life imprisonment without parole on the conviction of

first-degree murder and a concurrent sentence of 17-30 months on the conviction of

possession of a firearm by a felon. Defendant gave oral notice of appeal.

II. ANALYSIS

¶7 Defendant asserts the trial court erred in: (1) denying his motions to dismiss

the first-degree murder charge for lack of premeditation and deliberation; (2) giving
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the pattern jury instruction on deliberation in light of the particular facts of the case;

and (3) refusing to give a “stand your ground” instruction as requested by Defendant.

We hold that Defendant has failed to demonstrate error or prejudice under any

theory.

1. Standards of Review

¶8 This Court reviews the trial court’s denial of a motion to dismiss de novo. State

v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). After a defendant’s motion

to dismiss, the court must decide “whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense included therein, and

(2) of defendant’s being the perpetrator of such offense. If so, the motion is properly

denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation and

quotation marks omitted). Substantial evidence is defined as “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” State v.

Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 255 (1987) (citations omitted). We must

consider the evidence in the light most favorable to the State and with the benefit of

all reasonable inferences. Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455.

¶9 Alleged errors in the trial court’s jury instruction are reviewed under different

standards, depending on whether such errors were preserved. If a defendant failed

to preserve his challenge to the trial court’s instruction, we review the issue for plain

error when explicitly asserted in the defendant’s brief. State v. Foye, 220 N.C. App.
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37, 44, 725 S.E.2d 73, 79 (2012); see also N.C. R. App. P. 10(a)(4) (2022). “Under the

plain error rule, defendant must convince this Court not only that there was error,

but that absent the error, the jury probably would have reached a different result.”

State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

¶ 10 Preserved challenges to jury instructions are reviewed de novo. State v.

Richardson, 270 N.C. App. 149, 152, 838 S.E.2d 470, 473 (2020). In determining

whether the requested instruction is warranted, we view the evidence in the light

most favorable to the defendant. State v. Debiase, 211 N.C. App. 497, 504, 711 S.E.2d

436, 441 (2011). To prevail on appeal, the defendant must show that there is a

“reasonable possibility” that the jury would have reached a different result had the

requested instruction been given. See State v. Brewington, 343 N.C. 448, 454, 471

S.E.2d 398, 402 (1996).

2. Motions to Dismiss

¶ 11 Defendant first contends that the trial court erred in denying his motions to

dismiss the charge of first-degree murder, asserting that the shooting was in the heat

of passion and without premeditation and deliberation. The State disagrees,

highlighting the evidence showing: (1) the number of times the deceased was shot; (2)

Defendant shot Mr. Boyce twice in the head after shooting him in the body several

times; (3) Defendant’s departure from the scene without rendering aid, evading police

for 18 days, and telling his girlfriend he intended to deny being at the scene rather
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than proclaim self-defense; and (4) Defendant’s testimony that he had bought the gun

in anticipation of a violent confrontation with Mr. Boyce. We agree with the State

that there was sufficient evidence of premeditation and deliberation to send the first-

degree murder charge to the jury.

¶ 12 First-degree murder is defined in part as a “willful, deliberate, and

premeditated killing[.]” N.C. Gen. Stat. § 14-17(a) (2021). Courts consider different

factors to determine if a killing occurred with premeditation and deliberation. State

v. Pittman, 332 N.C. 244, 255, 420 S.E.2d 437, 443 (1992). These factors include:

(1) want of provocation on the part of the deceased; (2) the
conduct and statements of the defendant before and after
the killing; (3) threats and declarations of the defendant
before and during the occurrence giving rise to the victim's
death; (4) ill-will or previous difficulty between the parties;
(5) evidence that the killing was done in a brutal manner;
and (6) the nature and number of the victim's wounds.

Id.

¶ 13 The number of gunshot wounds inflicted is probative on the issue, as there is

“some amount of time, however brief, for thought and deliberation . . . between each

pull of the trigger.” State v. Austin, 320 N.C. 276, 296, 357 S.E.2d 641, 653 (1987).

Also relevant is whether the defendant “left the deceased to die without attempting

to obtain assistance for the deceased.” State v. Hunt, 330 N.C. 425, 428, 410 S.E.2d

478, 481 (1991). In analyzing premeditation and deliberation, courts look to the

“totality of the circumstances” rather than a single factor. State v. Hager, 320 N.C.
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77, 82, 357 S.E.2d 615, 618 (1987) (citing State v. Corn, 303 N.C. 293, 278 S.E.2d 221

(1981)).

¶ 14 Defendant rightly notes that there are circumstances in which a verbal

altercation is so provocative as to foreclose a finding of premeditation. Under that

precedent, “words or conduct not amounting to an assault or threatened assault, may

be enough to arouse a sudden and sufficient passion in the perpetrator to negate

deliberation and reduce a homicide to murder in the second degree.” State v. Watson,

338 N.C. 168, 177, 449 S.E.2d 694, 700 (1994). However, “Defendant’s mere anger at

the victim is not alone sufficient to negate deliberation. . . . What is required to negate

deliberation . . . is a sudden arousal of passion, brought on by sufficient provocation

during which the killing immediately takes place.” Id. at 178, 499 S.E.2d at 700.

Evidence of a heated argument does not, however, foreclose a finding of premeditation

and deliberation, as “[a perpetrator] may deliberate, may premeditate, and may

intend to kill after premeditation and deliberation, although prompted and to a large

extent controlled by passion at the time.” State v. Vause, 328 N.C. 231, 238, 400

S.E.2d 57, 62 (1991). It is only when all the evidence shows a lack of premeditation

and deliberation that this element is negated, Watson, 338 N.C. at 177, 499 S.E.2d at

700, and “evidence of [a] quarrel . . . is not enough to negate deliberation as a matter

of law.” Id. at 178, 499 S.E.2d at 700; see also State v. Misenheimer, 304 N.C. 108,

114, 282 S.E.2d 791, 796 (1981) (holding the State submitted sufficient evidence of
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premeditation and deliberation notwithstanding the fact that “all the evidence

showed that the killing occurred after defendant and his father had engaged in a

struggle and his father had twice ‘grabbed’ defendant”).

¶ 15 These precedents establish that evidence of a verbal altercation does not serve

to negate a charge of first-degree murder when “there was other evidence sufficient

to support the jury’s finding of both deliberation and premeditation.” Watson, 338

N.C. at 178, 499 S.E.2d at 700-01. Other such evidence exists here. Indeed, the Court

in Watson rejected a defendant’s claim that premeditation was negated in part

because—as in this case—there was existing ill will between the defendant and

victim, the defendant had bought a gun in anticipation of an altercation with the

victim, and such evidence “tend[ed] to show preparedness on the part of defendant to

kill the victim before the argument between them ensued.” Id. at 177, 499 S.E.2d at

700. The Supreme Court also pointed out that the victim was shot multiple times—

again, as occurred here—and that the number of shots supported a finding of

premeditation and deliberation. Id. at 179, 499 S.E.2d at 701.

¶ 16 Defendant attempts to analogize this case to State v. Corn and State v.

Williams, both of which vacated first-degree murder convictions on the basis that

there was insufficient evidence of premeditation and deliberation when a defendant

shot the victim following a verbal altercation. Corn, 303 N.C. at 298, 278 S.E.2d at

224; State v. Williams, 144 N.C. App. 526, 530-31, 548 S.E.2d 802, 805-06 (2001).
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However, the facts of those cases are materially different; the defendant in Corn fired

his gun at two men who were “bigger than him . . . and with a history of violence—

who were charging at him while he was on the couch in his home,” State v. Dennison,

171 N.C. App. 504, 509, 615 S.E.2d 404, 408 (2005) (describing Corn), while the

defendant in Williams fired his weapon after being struck in the jaw by the victim.

Williams, 144 N.C. App. at 527, 548 S.E.2dat 804. Neither defendant bought their

firearms in anticipation of a violent confrontation with their victims, and both

cooperated with the respective investigations within 24 hours of each shooting. Corn,

303 N.C. at 295, 278 S.E.2d at 222; Williams, 144 N.C. App. at 530-31, 548 S.E.2d at

805-06. Nor was there any evidence of prior arguments or ill will between the victims

and the defendants in those cases. Corn, 303 N.C. at 298, 278 S.E.2d at 224;

Williams, 144 N.C. App. at 530-31, 548 S.E.2d at 805. And, in Williams, the

defendant fired only a single shot. 144 N.C. App. at 531, 548 S.E.2d at 805.

¶ 17 None of the dispositive facts in Corn or Williams is present here. The

unequivocal evidence shows Defendant had previously quarreled with the victim and

shot the victim at least six times in the back, pelvis, and head. After several shots

struck the victim’s torso, Defendant shot the victim in the head. Defendant himself

testified that he left the victim at the scene of the crime without trying to render aid.

He also took the murder weapon, which he had purchased in anticipation of a violent

confrontation with the victim, when he fled. Defendant then remained on the lam for
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18 days with knowledge that there was a warrant out for his arrest. He informed his

girlfriend he intended to deny shooting the victim rather than admit doing so in self-

defense. Based on the evidence presented, the jury could rationally infer that

Defendant killed Mr. Boyce with premeditation and deliberation notwithstanding the

verbal argument between the two men. The trial court did not err in denying

Defendant’s motions to dismiss the first-degree murder charge.

3. Pattern Instruction on Deliberation

¶ 18 Defendant next argues that the trial court erred in giving the pattern jury

instruction on premeditation and deliberation, conceding that trial counsel did not

object to the instruction during the charge conference. Defendant specifically and

distinctly contends the trial court’s instruction amounted to plain error,1 and we

therefore review this unpreserved issue under that standard.

¶ 19 Defendant does not dispute that the court followed Pattern Jury Instruction

206.1 for first-degree murder, which includes a definition and explanation of

1 Defendant argues in the alternative that this error was preserved as a matter of law,
as a trial judge is obligated to instruct the jury on all essential features of the case arising
from the evidence. State v. Harris, 306 N.C. 724, 727, 295 S.E.2d 391, 393 (1982).
Defendant’s automatic preservation argument fails because our Supreme Court has
elsewhere made clear that failure to object to a jury instruction waives harmless error review
and subjects the issue to plain error review only. See, e.g., State v. Lawrence, 365 N.C. 506,
514, 723 S.E.2d 326, 332 (2012) (holding plain error review was the proper standard
applicable to a defendant’s claim that the trial court erred in omitting an instruction on a
necessary element of the crime when defendant did not lodge any objection to the jury
charge).
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deliberation as an element of the crime. Rather, Defendant believes the facts in this

case required the following additional instruction on deliberation: “If you find that

defendant shot Mr. Boyce during a passion suddenly aroused by Mr. Boyce’s assault

or threatened assault upon defendant, or by his aggressive conduct toward defendant,

then defendant would not be guilty of first degree murder.”

¶ 20 Defendant’s argument relies entirely on a dissenting opinion in State v.

Patterson, 288 N.C. 553, 574, 220 S.E.2d 600, 615 (1975) (Exum, J., dissenting), which

has no force of law. See Georgia v. Public.Resource.Org, Inc., ___ U.S. ___, ___, 206 L.

Ed. 2d 732, 748 (2020) (“As every judge learns the hard way, comments in a dissenting

opinion about legal principles and precedents are just that: comments in a dissenting

opinion.” (cleaned up) (quotation marks and citation omitted)). Further, the dissent

in Patterson was based on a “bare bones definition of deliberation” given in that case,

288 N.C. at 575, 220 S.E.2d at 616, and the pattern jury instruction used here was

substantially more detailed in its definition and examples. See State v. Cagle, 266

N.C. App. 193, 202, 830 S.E.2d 893, 900 (2019) (rejecting a similar argument that the

pattern instruction was insufficient to describe premeditation and deliberation after

noting that the pattern instruction, also used in this case, “defined and provided

examples of deliberation”).

¶ 21 The pattern instruction used here also encompassed the law and meaning

provided by the Defendant’s proposed instruction, as it stated premeditation is shown
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“[i]f the intent to kill was formed with a fixed purpose not under the influence of some

suddenly aroused violent passion.” (emphasis added). The trial court gave an

instruction that accurately reflected the law and evidence, and it was “not required

to frame . . . instructions with any greater particularity than is necessary to enable

the jury to understand and apply the law to the evidence bearing upon the elements

of the crime charged.” State v. Lewis, 346 N.C. 141, 145, 484 S.E.2d 379, 381 (1997)

(quotation marks and citation omitted). Defendant has thus failed to show plain

error.

4. “Stand Your Ground” Instruction

¶ 22 In his final argument, Defendant contends that the trial court prejudicially

erred in refusing to give the following “stand your ground” instruction requested

during the charge conference:

If the defendant was not the aggressor and the defendant
was at a place where the defendant had a lawful right to
be, the defendant could stand the defendant’s ground and
repel force with force regardless of the character of the
assault being made upon the defendant. However, the
defendant would not be excused if the defendant used
excessive force.

Defendant specifically argues that the failure to instruct the jury that he could “repel

force with force regardless of the character of the assault being made upon the

defendant” was prejudicial, as the jury was not informed that “defendant had the

right to use deadly force even if it had not been wielded against him.”
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¶ 23 Instead of Defendant’s requested instruction, the trial court charged the jury

as follows:

The defendant would be excused of . . . murder on the
ground of self-defense if, first, the defendant believed it
was necessary to kill the victim or to use deadly force
against the victim in order to save the defendant from
death or great bodily harm.

And, second, the circumstances, as they appeared to the
defendant at the time, were sufficient to create such a
belief in the mind of a person of ordinary fitness.

In determining the reasonableness of the defendant’s belief
you should consider the circumstances as you find them to
have existed from the evidence including

....

[t]he fierceness of the assault, if any, upon the defendant

....

The defendant would not be guilty of murder or
manslaughter if the defendant acted in self-defense and if
the defendant did not use excessive force under the
circumstances.

Notably, the trial court expressly told the jury Defendant was not guilty if he acted

proportionally to the threat posed. Ultimately, Defendant’s argument fails because

proportionality is still a pre-requisite to asserting self-defense even when a defendant

had no duty to retreat.
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¶ 24 Defendant’s argument is foreclosed by our Supreme Court’s recent decision in

State v. Benner, where a defendant shot and killed a victim in the defendant’s home.

380 N.C. 621, 2022-NCSC-28, ¶ 13. That decision makes clear that the use of deadly

force cannot be excessive and must still be proportional even when the defendant has

no duty to retreat and is entitled to stand his ground:

[T]he proportionality rule inherent in the requirement that
the defendant not use excessive force continues to exist
even in instances in which a defendant is entitled to stand
his or her ground. For that reason, a trial court need not
use the expression “regardless of the character of the
assault” in the absence of a concern that the jury would
believe that the nature of the assault that the victim had
made upon the defendant had some bearing upon the
extent to which a defendant attacked in his own home has
a duty to retreat before exercising the right of self-defense.
In view of the fact that the trial court made no distinction
between a simple and a felonious assault in its instructions
to the jury concerning the extent to which defendant was
entitled to exercise the right of self-defense without making
an effort to retreat and did not tell the jury that defendant
was not entitled to use a firearm or any other form of
deadly force in the course of defending himself from [the
victim’s] attack as long as he actually and reasonably
believed that he needed to use deadly force to protect
himself from death or great bodily injury, the trial court
did not need to further clarify that defendant was entitled
to exercise the right of self-defense “regardless of the
character of the assault.”

Id. ¶ 29 (quotation marks and citations omitted). Because the trial court in that case

instructed the jury that the defendant had no duty to retreat and could use deadly
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force if proportional to the threat posed by the victim, the trial court did not err in

declining to give a special “stand your ground” instruction. Id.

¶ 25 Defendant asserts Benner does not apply in this case because the right to stand

one’s ground in the home arises under common law, while Defendant’s right to stand

his ground outside the home arose under statute. See id. ¶ 21 (noting that N.C. Gen.

Stat. §§ 14-51.2 and 14-51.3 (2021) extended the common law right to stand one’s

ground in self-defense to places outside the home under certain circumstances).

However, the language Defendant claims was prejudicially omitted—that he could

respond to force with force regardless of the nature of the assault—was deemed in

Benner to be “rooted in common, rather than statutory, law.” Id. ¶ 25. The Supreme

Court also held in Benner that a distinction between common and statutory law was

immaterial when the trial court’s instruction adequately conveyed the proportionality

requirement to the jury. Id. ¶ 26. Here, the instruction given by the trial court

effectively conveyed the proportionality concept to the jury, as it told the jury

Defendant could respond with deadly force if it was not excessive. The instruction

requested by Defendant does not state that he could respond to force with deadly force

regardless of the character of the assault. Instead, it provides that Defendant could

reply to “force with force regardless of the character of the assault being made upon

the defendant. However, the defendant would not be excused if the defendant used

excessive force.” The trial court therefore did not err in its instruction, as its charge
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effectively conveyed the concept that Defendant incorrectly claims was prejudicially

omitted. Benner, ¶ 29.

¶ 26 Even if Benner does not apply, the “stand your ground” statute on which

Defendant relies imposes the same requirement that any use of deadly force be

proportional to that threatened against Defendant. Subsection 14-51.3(a) provides

that a person in a place he has a legal right to be may use deadly force without

retreating if either of the following apply: “(1) He . . . reasonably believes that such

force is necessary to prevent imminent death or great bodily harm to himself or . . .

another,” or “(2) Under the circumstances permitted pursuant to [Section] 14-51.2.”

N.C. Gen. Stat. § 14-51.3(a) (2021). Section 14-51.2, the “castle doctrine” statute,

simply provides that a lawful occupant of a home, workplace, or motor vehicle is

entitled to a rebuttable presumption that deadly force is reasonable when used

against someone who had or was unlawfully breaking into that location or kidnapping

someone from that location. N.C. Gen. Stat. § 14-51.2; see also State v. Austin, 279

N.C. App. 377, 2021-NCCOA-494, ¶¶ 24-25 (describing the presumption created by

the castle doctrine statute and the circumstances in which it applies). In other words,

the castle doctrine statute does not obviate the proportionality requirement inherent

to lethal self-defense; instead, it simply presumes that the proportionality

requirement is satisfied under specific circumstances.
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¶ 27 Here, Defendant was not the owner of the home where the victim was shot,

and the homeowner, Mr. Brooks, testified that the victim was “more than welcome”

in the house and was never told to leave. Because the castle doctrine statute does not

apply to this circumstance, Defendant could use deadly force against the victim under

Subsection 14-51.3(a) only if it was necessary to prevent imminent death or great

bodily harm, i.e., if it was proportional. N.C. Gen. Stat. § 15-51.1(a)(1). The jury was

given exactly this instruction and was told Defendant was not guilty “if the defendant

acted in self-defense and if the defendant did not use excessive force under the

circumstances.”

¶ 28 Lastly, even if the trial court did err in declining to give the requested

instruction, Defendant cannot show prejudice. As Defendant’s own requested

instruction recognized, he could not use lethal self-defense if doing so amounted to

“excessive force,” and the evidence overwhelmingly demonstrates that Defendant’s

force was excessive. Defendant was under no threat of imminent harm: while Mr.

Boyce threatened to kill Defendant at some unknown time in the future, he was clear

that he had no intention of killing Defendant in Mr. Brooks’ home at the time of the

altercation. The only actual physical “assault” in evidence was the victim spitting on

Defendant as he shouted. Lethal force is not a proportional response to being spit on.

Because the overwhelming evidence shows that the lethal force used was excessive

and precluded any “stand your ground” defense, Defendant cannot show prejudicial
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error. See Benner, ¶ 30 (holding no prejudice in failure to give an identical requested

instruction because “the record contains more than sufficient evidence from which a

reasonably jury could have determined that defendant used excessive force when he

killed [the victim]”).

III. CONCLUSION

¶ 29 The trial court properly denied Defendant’s motions to dismiss, did not plainly

err in its deliberation jury instruction, and did not err in denying Defendant’s request

for a specific “stand your ground” instruction. For the foregoing reasons, we hold that

Defendant received a fair trial, free from error.

NO ERROR.

Judges DIETZ and JACKSON concur.