State v. LeeÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-513
Filed: 20 February 2018
Mecklenburg County, No. 15 CRS 209455
STATE OF NORTH CAROLINA
v.
COREY DONTA LEE, Defendant.
Appeal by Defendant from judgment entered 31 January 2017 by Judge Jesse
Caldwell III in Mecklenburg County Superior Court. Heard in the Court of Appeals
4 October 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General M.
Lynne Weaver, for the State.
Marilyn G. Ozer for Defendant-Appellant.
INMAN, Judge.
Corey Donta Lee (“Defendant”) appeals from a judgment following a jury
verdict convicting him of assault with a deadly weapon with intent to kill inflicting
serious injury. On appeal, Defendant argues that the trial court erred by instructing
the jury that he could not receive the benefit of self-defense if he were the aggressor.
After careful review, we hold that Defendant has failed to demonstrate error.
Background and Procedural History
This case arises from a shooting on the lawn of a Charlotte home on 15 March
2015. The State’s evidence at trial tended to show the following:
STATE V. LEE
Opinion of the Court
Defendant and Tierra Gray (“Gray”) began dating in high school. Over the
course of their eight-year relationship, Defendant and Gray had three children
together. Defendant and Gray introduced Gray’s mother, Angela Murray (“Murray”),
to Floyd Long (“Long”), and the two began dating. Defendant, Gray, Murray, and
Long were close friends for years.
Several incidents before March 2015 deteriorated Defendant’s relationship
with Long. On one occasion, Defendant informed Gray that Long had bragged about
Murray’s sexual prowess. Gray relayed Defendant’s comment to her mother,
creating “bad blood” between Defendant and Long. On another occasion, Defendant
and Murray argued over Defendant’s treatment of Murray’s son-in-law, and family
members had to physically restrain Defendant from fighting Murray. Murray told
Long about the encounter. On several occasions over the years, Defendant and Gray
frequently fought and Defendant assaulted Gray. After fighting with Defendant,
Gray commonly called her mother in tears, and Murray overheard her daughter’s
conversations with Defendant. Family members called the police several times to
report Defendant’s physical abuse. Defendant and Long’s friendship ended when
Long expressed his disapproval of how Defendant treated Gray, and Defendant was
not receptive.
By March of 2015, after eight years of dating, Defendant and Gray ended their
relationship. Gray and her children moved into Murray’s house in Charlotte.
-2-
STATE V. LEE
Opinion of the Court
On the evening of 15 March 2015, Gray was out on a date with another man.
Murray was at home. Just after midnight, Defendant drove to Murray’s home in a
rental car, hoping to see Gray. He did not exit his car but rather remained in the
driveway, sending text messages to Gray on his phone. Approximately ten minutes
after Defendant parked, Long arrived at Murray’s house in a minivan and parked
next to Defendant in the driveway. Long assumed that the rental car in the driveway
belonged to Gray’s new boyfriend.
Long exited the minivan and approached Murray’s front door. When Murray
came to her door, she noticed Defendant sitting in the rental car outside and froze.
Long approached Defendant’s vehicle and asked him to step outside to “talk and get
this handled[.]” Long then stepped into the middle of the yard to give Defendant
space to exit his vehicle. Long testified that Defendant told him, “nah, I got
something else for you,” and started shooting. Defendant shot Long three times in
rapid succession, with one bullet hitting his upper thigh, one bullet lodging half an
inch under his heart, and one bullet piercing his abdomen.
After the shooting, Defendant fled in his vehicle. Approximately one hour
later, Defendant posted on Facebook, “just shot a bitch-ass nigga.” Two days later,
after learning a warrant had been issued for his arrest, Defendant surrendered
himself to police.
-3-
STATE V. LEE
Opinion of the Court
On 30 March 2015, Defendant was indicted on one count of attempted first
degree murder. On 7 November 2016, Defendant was again indicted on a charge of
attempted first degree murder, and also indicted on the additional charge of assault
with a deadly weapon with intent to kill inflicting serious injury.
The case came on for trial at the 23 January 2017 Session of the Mecklenburg
County Superior Court, the Honorable Jesse B. Caldwell, III, presiding. Defense
counsel argued that Defendant shot Long in self-defense.
Defendant testified in his own defense and gave the following account, which
conflicted with the State’s evidence: after meeting Murray at her front door, Long
angrily approached Defendant’s car, stating “remember that shit with you and
[Murray]? We’re going to handle that shit real quick.” Long then walked over to his
van, opened the trunk, and began moving things around. Defendant believed Long
was going to get a pistol. Long then walked back around to Defendant’s car and
aggressively told Defendant “don’t reach for that gun.” Defendant fired three shots
at Long until Long was no longer approaching Defendant. Defendant acknowledged
that he did not see Long with a pistol that night and had never seen Long with a gun.
During the charge conference after the close of evidence and before counsel’s
arguments and the trial court’s instructions to the jury, defense counsel objected to
the inclusion of the aggressor doctrine in the pattern jury instruction for self-defense.
Defense counsel argued that because Long had approached Defendant’s vehicle before
-4-
STATE V. LEE
Opinion of the Court
Defendant said anything to him, Long, rather than Defendant, initiated the fight.
The prosecutor contended that because the State’s evidence showed only that Long
told Defendant to step out of his vehicle, it was a question for the jury to determine
whether Defendant or Long was the aggressor. The trial court overruled Defendant’s
objection and instructed jurors, in pertinent part:
Members of the jury, furthermore, self-defense is justified
only if the defendant was not the aggressor. . . .
justification for defensive force is not present if the person
who used defensive force voluntarily entered into the fight
or, in other words, initially provoked the use of force
against himself. If one uses abusive language towards
one’s opponent, which, considering all of the circumstances
is calculated and intended to bring on a fight, then one
enters a fight voluntarily. However, if the defendant was
the aggressor, the defendant would be justifying in using
defensive force if the defendant thereafter attempted to
abandon the fight and gave notice to the defendant’s
opponent that the defendant was doing so.
In other words, a person who uses defensive force is
justified if the person withdraws in good faith from
physical contact with the person who was provoked and
indicates clearly that he desires to withdraw and terminate
the use of force, but the person who was provoked continues
or resumes the use of force.
A person is also justified in using defensive force when the
force used by the person who was provoked is so serious
that the person using defensive force reasonably believes
that he was in imminent danger of death or serious bodily
harm, the person using defensive force had no reasonable
means to retreat, and the use of force likely caused death
or serious bodily harm was the only way to escape the
danger.
-5-
STATE V. LEE
Opinion of the Court
The jury found Defendant guilty of assault with a deadly weapon with intent
to kill inflicting serious injury. Defendant was sentenced to fifty-three months to
seventy-six months imprisonment. He appealed in open court.
Analysis
Defendant argues that the trial court erred by instructing the jury that he
could not receive the benefit of self-defense if he were the aggressor. We disagree.
A trial court’s jury instructions challenged at trial are reviewed de novo on
appeal. State v. Hope, 223 N.C. App. 468, 471, 737 S.E.2d 108, 111 (2012). Under de
novo review, this Court considers the matter anew and is free to substitute its
judgment for that of the trial court. State v. Williams, 362 N.C. 628, 632-33, 669
S.E.2d 290, 294 (2008).
A trial court’s jury instructions should be “a correct statement of the law and .
. . supported by the evidence.” State v. Conner, 345 N.C. 319, 328, 480 S.E.2d 626,
629 (1997). “[A]n error in jury instructions is prejudicial and requires a new trial
only if there is a reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial out of which the
appeal arises.” State v. Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009)
-6-
STATE V. LEE
Opinion of the Court
(internal quotation marks and citations omitted); N.C. Gen. Stat. § 15A–1443(a)
(2015).1
The aggressor doctrine provides that a defendant may not receive the benefit
of self-defense if he was the aggressor. State v. Juarez, 369 N.C. 351, 358, 794 S.E.2d
293, 300 (2016). An individual is the aggressor if he or she “ ‘aggressively and
willingly enters into a fight without legal excuse or provocation.’ ” State v. Potter, 295
N.C. 126, 144, 244 S.E.2d 397, 409 (1978) (quoting State v. Wynn, 278 N.C. 513, 519,
180 S.E.2d 135, 139 (1971)). Further, “ ‘[a] person is entitled under the law of self-
defense to harm another only if he is without fault in provoking, engaging in, or
continuing a difficulty with another.’ ” State v. Effler, 207 N.C. App. 91, 98, 698
S.E.2d 547, 552 (2010) (internal quotation marks and citations omitted). “[W]here
the evidence does not indicate that the defendant was the aggressor, the trial court
should not instruct on that element of self-defense.” State v. Jenkins, 202 N.C. App.
291, 297, 688 S.E.2d 101, 105 (2010).
North Carolina law does not require that a defendant instigate a fight to be
considered an aggressor. Rather, even if his opponent starts a fight, a defendant who
1 Defendant contends that this alleged error violated his rights under the United States
Constitution and, thus, the proper standard for assessing prejudice is the following: “A violation of the
defendant’s rights under the Constitution of the United States is prejudicial unless the appellate court
finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate,
beyond a reasonable doubt, that the error was harmless.” N.C. Gen. § 15A-1443(b) (2015). Because
we hold that the trial court did not err in instructing the jury on the aggressor doctrine, we need not
address this contention.
-7-
STATE V. LEE
Opinion of the Court
provokes, engages in, or continues an argument which leads to serious injury or death
may be found to be the aggressor. State v. Cannon, 341 N.C. 79, 82, 459 S.E.2d 238,
241 (1995) (holding that a jury could find that the defendant was the aggressor where
the defendant shot the unarmed victim, even though the victim initiated the fight
and threatened to kill defendant); State v. Freeman, 275 N.C. 662, 669, 170 S.E.2d
461, 466 (1969) (holding that while the victim started the altercation, the “defendant
had become and remained the aggressor” when he pursued the fleeing victim); State
v. Church, 229 N.C. 718, 722, 51 S.E.2d 345, 348 (1949) (holding that while the victim
started the fight, the defendant pursued it; thus, the defendant was the aggressor
and not entitled to a self-defense instruction). “When there is conflicting evidence as
to which party was the aggressor, the jury, as the finders of fact, are [sic] entitled to
determine which of the parties, if either, is the aggressor.” State v. Lee, __ N.C. App.
__, __,789 S.E.2d 679, 688 (2016), review allowed, __ N.C. __,796 S.E.2d 790 (2017)
(internal quotation marks and citation omitted).
Critical to our analysis is the difference between the standard of review of a
trial court’s decision to instruct jurors on self-defense at all and the standard of
review of the trial court’s decision to include the aggressor instruction within the self-
defense instruction. When reviewing a trial court’s denial of a defendant’s request
for a self-defense instruction, the appellate court must consider the evidence in the
light most favorable to the defendant. See State v. Webster, 324 N.C. 385, 391, 378
-8-
STATE V. LEE
Opinion of the Court
S.E.2d 748, 752 (1989) (“In determining whether there was any evidence of self-
defense presented, the evidence must be interpreted in the light most favorable to
defendant.” (citation omitted)). By contrast, when reviewing a trial court’s denial of
a defendant’s request to exclude the aggressor instruction from the jury instruction
on self-defense, the appellate court does not consider the evidence in a light favorable
to the defendant, as it is the province of the jury to resolve any conflict in the evidence
in that regard. See, e.g., State v. Terry, 329 N.C. 191, 199, 404 S.E.2d 658, 662-63
(1991) (holding that “[a]lthough defendant’s evidence does not support the aggressor
instruction, the State’s evidence supports it. By instructing jurors on the aggressor
qualification, the trial court allowed the triers of fact to determine which testimony
to believe[]”); State v. Hoyle, 57 N.C. App. 288, 293-94, 291 S.E.2d 273, 276 (1982)
(holding that the trial court properly instructed the jury on the aggressor doctrine
“based upon the above evidence by the State tending to show that defendant was the
aggressor[]”). In State v. Joyner, 54 N.C. App. 129, 135, 282 S.E.2d 520, 524 (1981),
this Court held that when a defendant’s evidence tended to show he acted in self-
defense, “the trial judge was obligated to instruct on self-defense but because the
State’s evidence tended to show that defendant was the aggressor, he properly
instructed further that self-defense would be an excuse only if defendant was not the
aggressor.”
-9-
STATE V. LEE
Opinion of the Court
Here, the State’s evidence tended to show that Defendant was the aggressor in
his encounter with Long. Long testified that on the night of the shooting, he told
Defendant to step out of his car so they could “talk” and “get it handled[;]” however,
he did not threaten Defendant, touch Defendant’s car, or approach Defendant. Long
was unarmed. After speaking with Defendant, Long testified that he stepped into
the yard to allow Defendant to exit his car, only to be shot by Defendant. Although
Defendant’s testimony materially differed from the State’s evidence, the jury, as the
finder of fact, was duty bound to weigh the credibility of the witnesses. Lee, __ N.C.
App. at __,789 S.E.2d at 688.
The cases cited by Defendant are distinguishable, as none included any
evidence from which a jury could find that the defendant was the aggressor. See, e.g.
State v. Washington, 234 N.C. 531, 534, 67 S.E.2d 498, 500 (1951) (holding the
aggressor instruction was error when the deceased assaulted the defendant with his
fist, knocking her down an embankment, struck her with a stick, and dragged her
away from a crowd while stating his intention to take her out of sight and kill her);
State v. Temples, 74 N.C. App. 106, 109, 327 S.E.2d 266, 268 (1985) (holding that it
was error for the trial court to instruct the jury on entering a fight voluntarily when
“there is no evidence from which the jury could find that defendant voluntarily
entered a fight with the deceased[]”). In contrast, here, there was conflicting evidence
about the sequence of events leading to Defendant shooting Long, and the evidence
- 10 -
STATE V. LEE
Opinion of the Court
was sufficient to support a jury finding that Defendant was the aggressor, therefore
barring the defense of self-defense.
Conclusion
The record contained sufficient evidence to support a jury finding that
Defendant was the aggressor in the altercation with Long. Therefore, the trial court
did not err by instructing the jury on the aggressor doctrine.
NO ERROR.
Judges ELMORE and DIETZ concur.
- 11 -