State v. Blue

*482HUNTER,

Judge, dissenting.

The majority rests its opinion on the fact that the trial court “twice instructed on self defense” in that it instructed the jury that if defendant was on his own premises and was preventing forcible entry into his place of residence, then defendant had a right to defend himself pursuant to N.C. Gen. Stat. § 14-51.1.1 agree that this is a correct statement of the law; however, because the trial court— at no time — explained the legal perimeters of one’s home or mentioned defendant’s right to defend himself within the curtilage of his home, I am of the opinion that the majority has effectively removed from the jury’s consideration defendant’s right to defend himself on the porch of his home. Therefore, I respectfully dissent.

There can be no dispute, our Supreme Court having stated that a “jury, being laymen, [often is] not [] so apt to see the connection between the principles of law laid down and the facts in [a] case which so clearly appears to an experienced lawyer or judge.” Smith v. Bus Co., 216 N.C. 22, 23, 3 S.E.2d 362, 363 (1939). However, the majority states that: “Because we believe the substance of the [jury] instructions read in context was clear,” defendant was not prejudiced by the trial court’s failure to explain “curtilage” to the jury. I must disagree.

Having looked in two separate extensive dictionaries (The American Heritage College Dictionary, 3rd Ed., Houghton Mifflin Co., and; Webster’s II New Riverside Dictionary, Revised, Houghton Mifflin Co.), the word “curtilage” cannot be found. Instead, “cur-tilage” is a legal term, “the meaning of which term in law is, a piece of ground, either enclosed or not, that is commonly used with the dwelling-house.” State v. Twitty, 2 N.C. 102, 102 (1794) (emphasis added). Thus, I believe — under the circumstances of this case — that the “evidence should have been considered [by the trial court] and the [trial] court should have declared and explained the law arising on th[e] evidence in its instruction to the jury . . . .” State v. Greenidge, 102 N.C. App. 447, 452, 402 S.E.2d 639, 642 (1991) (emphasis added). Specifically, the trial court should have explained to the jury that defendant was just as entitled to “stand his ground” and defend himself (pursuant to the statutory provisions) on his front porch, as he was to do so in his home.

It is clear from the trial court’s own statements that it gave the N.C. Gen. Stat. § 14-51.1 jury instruction because the evidence presented at trial would support the jury’s finding that defendant acted *483pursuant to the statute’s self defense provisions. However, later, during its deliberations, the jury sent a note inquiring, “[i]s the front porch considered to be a part of the home or inside of the home?” Following discussion between the trial court and counsel for both sides, and noting defendant’s exception to its ruling, the trial court instructed the jury that “a front porch is a part of the home but a front porch is not inside the home.” I believe, once the jury inquired particularly about whether the porch was part of the home, the trial court had an obligation (pursuant to defendant’s request) to clearly explain that the porch, although not “within” the home, was part of the curtilage of the home and as such, was covered under the statute.

Moreover, I do not agree with the majority’s apparent rationale that because the trial court used the word “premises,” the jury knew and understood that the privilege included the porch, extending beyond the “within” or “inside” or “into” the home language as stated in both the statute and the trial court’s instructions. Thus, I believe that, without further instruction from the trial court, the jury — as laymen — most likely understood the law to require defendant to retreat while on the porch of his home, and did not remove that duty until defendant was defending himself inside his home. Therefore, in light of the jury’s query to that effect, and the trial court’s obvious agreement that the evidence could support such a finding, I would hold that the trial court’s response to the jury’s query regarding the porch was prejudicial to defendant because it did not clarify that the porch was part of the curtilage of the home and thus, was covered under N.C. Gen. Stat. § 14-51.l’s self defense provisions.

“It is the duty of the court to instruct the jury on all substantial features of the case arising on the evidence, . . . and the court’s failure to do so will be held for error.” (citing cases) “The statute, G.S. 1-180, makes it incumbent on the trial judge to declare and explain the law arising on the evidence given in the case.” Finch v. Ward, 238 N.C. 290, 77 S.E.2d 661.
“Implicit in the meaning of this statute (G.S. 1-180) as interpreted by numerous decisions of this Court is the requirement that the judge must declare and explain the law as it relates to the various aspects of the evidence ... in the case.” Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323[, 327]. “It is the duty of the court to state the evidence to the extent necessary and to declare and explain the law as it relates to the pertinent aspects of the testi*484mony offered [citing cases] and the duty of the court to declare and explain the law arising on such evidence remains unchanged by the present provisions of G.S. 1-180.” Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212[, 214] ....
[In the present case t]he confusion in the minds of the jurors probably arose with respect to the application of the law to the facts. The evidence [of the victim’s tussle with defendant on his porch] was not in dispute. When the court, therefore, charged again as to the law it was its duty to do more than read from the book. . . .

Ammons v. Insurance Co., 245 N.C. 655, 657-58, 97 S.E.2d 251, 252-53 (1957) (emphasis added).

In the present case:

Defendant’s requested instruction concerned a subordinate feature of the case since it did not relate to elements of the crime itself nor to defendant’s criminal responsibility therefore. Absent defendant’s request, the jury instructions would have been entirely proper since a Court is not required to give instructions on subordinate features of a case. When a requested instruction, however, is correct in law and supported by the evidence, the Court must give the instruction in substance. The requested instruction in the instant case was a correct application of the law to the evidence.
The failure to so instruct constituted prejudicial error, entitling defendant to a new trial.

State v. Bradley, 65 N.C. App. 359, 363, 309 S.E.2d 510, 513 (1983) (citations omitted) (emphasis added). With curtilage being a legal term and the statute and jury instruction emphasizing only defendant’s right to defend himself within his home or from an intruder attempting to enter into his home, I believe the curtilage instruction was necessary to apprize the jury of the applicable case law. “The rule ... that a person is not obliged to retreat when he is assaulted while in his dwelling house or within the curtilage thereof,” still prevails and thus, the trial court was obligated to so instruct the jury. State v. Browning, 28 N.C. App. 376, 379, 221 S.E.2d 375, 377 (1976) (emphasis added). Therefore, I am of the opinion defendant is entitled to a new trial.