State v. Hearn , 89 N.C. App. 103 ( 1988 )

365 S.E.2d 206 (1988)

STATE of North Carolina
v.
Martha Lynn HEARN.

No. 8726SC832.

Court of Appeals of North Carolina.

March 1, 1988.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.

Public Defender Isabel Scott Day by Asst. Public Defender Marc D. Towler, Charlotte, for defendant-appellant.

SMITH, Judge.

By her only assignment of error, defendant contends that the trial court erred in refusing to instruct the jury that defendant had no duty to retreat before using deadly force to repel an attack against her when there was evidence that defendant was in her own home. We agree.

In regard to the duty to retreat our courts have stated:

[W]hen a person who is free from fault in bringing on a difficulty, is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self-defense, regardless of the character of the assault, but is entitled to stand his ground, to repel force with force, and to increase his force, so as not only to resist, but also to overcome the assault and secure himself from all harm. This, of course, would not excuse the defendant if he used excessive force in repelling the attack and overcoming his adversary.

State v. Johnson, 261 N.C. 727, 729-730, 136 S.E.2d 84, 86 (1964). This rule applies even when both defendant and victim reside in the same dwelling. State v. Browning, 28 N.C.App. 376, 221 S.E.2d 375 (1976).

In this case there was testimony as follows: 1) defendant and decedent resided in the same house; 2) defendant loaded a gun in fear that decedent's father was coming to the house to "cut" her; 3) defendant saw decedent approaching the house with what appeared to her to be a pipe or tire iron in his hand; 4) decedent and defendant argued and he threatened defendant's life; and 5) defendant shot decedent as he was coming at her with a pipe raised in his hand. "``Where there is evidence that defendant was on [her] own premises when [she] was assaulted ... without fault on [her] part, it is error for the court to fail to submit the question and to charge upon defendant's right to stand [her] ground without retreating.'" Browning, 28 N.C. App. at 380, 221 S.E.2d at 378, quoting 4 Strong, N.C. Index 2d, Homicide, Sec. 28, pp. 248, 249.

The State contends that the trial court's refusal to instruct the jury that there was no duty to retreat was proper because there was overwhelming evidence to indicate that defendant was the initial and only aggressor in this incident. We do not agree with the State's contention. While there was evidence presented tending to show that defendant was the initial aggressor, there was also evidence that decedent was the aggressor and defendant was protecting herself. Such conflicts in evidence are for the jury to resolve. See State v. Wagoner, 249 N.C. 637, 107 S.E.2d 83 (1959).

In reaching our conclusion here, we recognize our decision in State v. Bennett, 67 N.C.App. 407, 313 S.E.2d 277 (1984), in which we held that a trial court's refusal to instruct the jury that there was no duty to retreat was not in error because there was evidence that defendant was the initial aggressor. We distinguish that case on the facts. There, unlike here, the evidence was uncontradicted. Defendant himself testified that he slapped the victim first before she allegedly assaulted him. Here, there was conflicting evidence as to who was the aggressor. When there is evidence that defendant was properly defending herself in her own home, then the trial court must instruct the jury that there was no duty to retreat. Browning, supra. In this case, the trial court was in error and defendant is entitled to a new trial.

New trial.

HEDRICK, C.J., and BECTON, J., concur.