STATE of North Carolina
v.
Darryl Scott HUGHES.
No. 8615SC256.
Court of Appeals of North Carolina.
September 16, 1986.*149 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Dolores O. Nesnow, Raleigh, for the State.
Daniel H. Monroe, Graham, for defendant-appellant.
MARTIN, Judge.
The issue dispositive of this appeal is whether the trial court erred when it refused defendant's request that the jury be instructed concerning the law of self-defense. We hold that defendant's evidence was sufficient to place the question of self-defense before the jury and that the failure of the court to instruct upon the law applicable thereto requires that defendant be granted a new trial.
Self-defense is a complete or "perfect" defense to homicide if it is established that at the time of the killing:
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances *150 to protect himself from death or great bodily harm.
State v. Bush, 307 N.C. 152, 158, 297 S.E.2d 563, 568 (1982). Imperfect self-defense arises when only elements (1) and (2) are established, in which case a defendant would remain guilty of at least voluntary manslaughter. "However, both elements (1) and (2) in the preceding quotation must be shown to exist before the defendant will be entitled to the benefit of either perfect or imperfect self-defense." Id. at 159, 297 S.E.2d at 568.
A defendant is entitled to an instruction on self-defense if there is any evidence in the record which establishes that it was necessary or that it reasonably appeared to the defendant to be necessary to kill in order to protect himself from death or great bodily harm. State v. Pate, 62 N.C. App. 137, 302 S.E.2d 286 (1983), aff'd, 309 N.C. 630, 308 S.E.2d 326 (1983). When defendant's evidence is sufficient to support an instruction on self-defense, the instruction must be given even though the State's evidence is contradictory. State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973). However, if the court determines as a matter of law that there is no evidence in the record from which the jury could find that the defendant reasonably could have believed it to be necessary to kill to protect himself from death or great bodily harm, then the defendant is not entitled to an instruction on self-defense. Bush, supra. When judging the sufficiency of the evidence the facts must be interpreted in the light most favorable to the defendant. State v. McCray, 312 N.C. 519, 324 S.E.2d 606 (1985).
In Bush, the Supreme Court articulated a two-question test for judging the sufficiency of the evidence to support an instruction on self-defense:
(1) Is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm, and (2) if so, was that belief reasonable? If both queries are answered in the affirmative, then an instruction on self-defense must be given. If, however, the evidence requires a negative response to either question, a self-defense instruction should not be given.
Bush at 160-61, 297 S.E.2d at 569.
In the present case, defendant presented evidence which, when viewed in the light most favorable to defendant, could support a finding that he in fact believed it to be necessary to strike Wagstaff with the bat to protect himself from death or great bodily harm. Defendant testified that Wagstaff came toward him "right fast" from out of a "pitch-black" area with a silver object that looked like a hawk-billed knife in his hand. As he approached the defendant, the heavily intoxicated Wagstaff threatened, "Now that I've got you, ain't nowhere you can go, goddamn it," and continued toward defendant. According to defendant's evidence, Wagstaff's words and actions caused him to fear for his life because he thought the object might be a knife and that Wagstaff might be going to do something to him.
Defendant's testimony, if believed by a jury, is also sufficient to support a finding that such a belief was reasonable. Defendant presented at least some evidence from which the jury could conclude that Wagstaff was in fact armed and a threat to defendant's life or health. It was for the jury, and not for the court, to determine the reasonableness of defendant's belief, under the circumstances as they appeared to him. See State v. Johnson, 166 N.C. 392, 81 S.E. 941 (1914).
Both Bush queries must therefore be answered in the affirmative and it was error for the trial court to refuse to instruct the jury on self-defense.
In view of our decision, we need not address defendant's second assignment of error. For the reasons stated, defendant is entitled to a
New trial.
HEDRICK, C.J., and PHILLIPS, J., concur.