State v. Quicksley

MITCHELL, Judge. The defendant assigns as error the following portion of the court’s charge on self-defense: In making this determination you should consider the circumstances as you find them to have existed at the time from the evidence, including the size, age, and strength of the defendant as compared to Gerald Call; the fierceness of the assault, if any, upon the defendant; and whether or not Gerald Call had a weapon in his possession. Again, it is for you the jury to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to him at the time. The defendant argues that the quoted instruction fails to tell the jury what to consider in determining whether the defendant used more force than necessary in repelling the alleged assault of the prosecuting witness Call upon the defendant. The instruction properly tells the jury what to consider, i.e., (1) the circumstances that existed at the time as shown by the evidence; (2) the size, age and strength of defendant as compared to Call; (3) the fierceness of Call’s assault on defendant; (4) the use, if any, of a weapon by Call in the assault on defendant; and (5) the reasonableness of defendant’s belief that his actions were necessary to protect himself from death or great bodily harm. The challenged instruction is in accord with State v. Pearson, 288 N.C. 34, 215 S.E. 2d 598 (1975); State v. Koutro, 210 N.C. 144, 185 S.E. 682 (1936). See N.C. Pattern Jury Instructions, Criminal 308.45, October 1978. The defendant further excepts to the failure of the court to instruct the jury in a more detailed and elaborate manner con [220] cerning excessive force in self-defense, setting out a proposed instruction in the record. However, the trial court near the end of the charge inquired if the defendant’s counsel had any requested instructions, and he answered, “Nothing from the defendant.” In State v. Greene, 278 N.C. 649, 180 S.E. 2d 789 (1971), the defendant asserted error in the failure of the trial court to include a review of the defendant’s evidence relating to his contention of self-defense. The defendant’s counsel made no request for such instruction. The court held if defendant desired fuller instructions he should have so requested. Quicksley’s failure to do so precludes him from now assigning this as error. The trial court applied the law to the evidence three times, there being three possible verdicts submitted to the jury. The first such instruction follows: [Furthermore, although you are satisfied beyond a reasonable doubt that Charles Quicksley committed assault with a deadly weapon with intent to kill inflicting serious injury, or you should find from a later part of my Charge, if you should find him guilty of assault with a deadly weapon inflicting serious injury, or you should find the defendant guilty of assault with a deadly weapon, you may return a verdict of guilty only if the State has satisfied you beyond a reasonable doubt that Charles Quicksley did not act in self-defense; that is, that Charles Quicksley did not reasonably believe that the assault was necessary to protect himself from death or serious bodily injury, or that he, Charles Quicksley, used excessive force or was the aggressor. If you do not so find, or have a reasonable doubt, then Charles Quicksley would be justified by self-defense and it would be your duty to return a verdict of not guilty. In State v. Dooley, 285 N.C. 158, 166, 203 S.E. 2d 815, 820 (1974), the Supreme Court set out this proposed final mandate on self-defense: “If, however, although you are satisfied beyond a reasonable doubt that the defendant did intentionally shoot Thomas and thereby proximately caused his death, if you are further satisfied, not beyond a reasonable doubt, but are satisfied that at the time of the shooting the defendant did [221] have reasonable grounds to believe and did believe that he was about to suffer death or serious bodily harm at the hands of Thomas, and under those circumstances he used only such force as reasonably appeared necessary, you the jury being the judge of such reasonableness, and you also are satisfied that the defendant was not the aggressor, then he would be justified by reason of self-defense, and it would be your duty to return a verdict of not guilty.” Although Dooley was prior to State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), the substantive law as to the recommended instruction is unimpaired, Hankerson only affecting the burden of proof on self-defense. The trial court properly applied the law to the evidence with respect to self-defense, the final mandate being in accord with the proposed instruction in Dooley. We find the trial court’s charge as a whole to be free of prejudicial error. The court fully instructed the jury as to the evidence and contentions, and defined the law applicable thereto. The defendant’s assignment of error that the court intimated an opinion on the evidence by failing to include some part of the defendant’s evidence in its summary of evidence in the charge, is novel, but without merit. Again, the defendant did not request further instructions although he was offered an opportunity to do so. State v. Greene, 278 N.C. 649, 180 S.E. 2d 789 (1971). The defendant had a fair trial, free from prejudicial error and we find No error. Judges PARKER and MARTIN (Harry C.) concur.