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STATE OF
NORTH CAROLINA v. JUDY ANN LAWS NORMAN
No. 161PA88
SUPREME
COURT OF NORTH CAROLINA
324 N.C.
253; 378 S.E.2d 8; 1989 N.C. LEXIS 158
April 5,
1989, Filed
PRIOR HISTORY:
[***1] On
discretionary review of the decision of the Court
of Appeals, 89 N.C. App. 384, 366 S.E. 2d 586
(1988), setting aside a judgment entered by
Gardner, J., in the Superior Court, Rutherford
County, on 5 March 1987, and awarding the
defendant a new trial.
DISPOSITION:
Reversed.
HEADNOTES:
Homicide § 28.1
-- self-defense -- sleeping victim -- battered
spouse syndrome
The evidence in
a first degree murder prosecution did not entitle
defendant to jury instructions on either perfect
or imperfect self-defense where defendant
presented evidence of a long history of physical
and mental abuse by her husband due to his
alcoholism; unsuccessful efforts to obtain help
from authorities; expert testimony that defendant
fit the profile of battered wife syndrome and
that she had felt that she had no choice but to
use deadly force against her husband; and
defendant had pointed a pistol at the back of her
sleeping husband's head, cleared a jam, shot her
husband in the back of the head as he still lay
sleeping, felt her husband's chest and determined
that he was still breathing and making sounds,
and then shot him twice more in the back of the
head. There was no evidence that at the [***2]
time of the killing defendant reasonably believed
herself to be confronted by circumstances which
necessitated her killing her husband to save
herself from imminent death or great bodily harm.
Even assuming that defendant was entitled to an
instruction on imperfect self-defense, failure to
give such an instruction was harmless error
because defendant was found guilty of voluntary
manslaughter. Requiring jury instructions on
perfect self-defense in such situations would
tend to make opportune homicide lawful as a
result of mere subjective predictions of
indefinite future assaults and circumstances.
COUNSEL: Lacy H.
Thornburg, Attorney General, by Steven F. Bryant,
Assistant Attorney General, and Jeffrey P. Gray,
Assistant Attorney General, for the appellant
State.
Robert W. Wolf
and Robert L. Harris for the defendant appellee.
JUDGES:
Mitchell, Justice. Justice Martin dissenting.
OPINIONBY:
MITCHELL
OPINION: [*253]
[**9] The defendant was tried at the 16 February
1987 Criminal Session of Superior Court for
Rutherford County upon a proper indictment
charging her with the first degree murder of her
husband. [*254] The jury found the defendant
guilty of voluntary manslaughter. The defendant
appealed from the [***3] trial court's judgment
sentencing her to six years imprisonment.
The Court of
Appeals granted a new trial, citing as error the
trial court's refusal to submit a possible
verdict of acquittal by reason of perfect
self-defense. Notwithstanding the uncontroverted
evidence that the defendant shot her husband
three times in the back of the head as he lay
sleeping in his bed, the Court of Appeals held
that the defendant's evidence that she exhibited
what has come to be called "the battered
wife syndrome" entitled her to have the jury
consider whether the homicide was an act of
perfect self-defense and, thus, not a legal
wrong.
We conclude that
the evidence introduced in this case would not
support a finding that the defendant killed her
husband due to a reasonable fear of imminent
death or great bodily harm, as is required before
a defendant is entitled to jury instructions
concerning either perfect or imperfect
self-defense. Therefore, the trial court properly
declined to instruct the jury on the law relating
to self-defense. Accordingly, we reverse the
Court of Appeals.
At trial, the
State presented the testimony of Deputy Sheriff
R. H. Epley of the Rutherford County Sheriff's
Department, [***4] who was called to the Norman
residence on the night of 12 June 1985. Inside
the home, Epley found the defendant's husband,
John Thomas Norman, lying on a bed in a rear
bedroom with his face toward the wall and his
back toward the middle of the room. He was dead,
but blood was still coming from wounds to the
back of his head. A later autopsy revealed three
gunshot wounds to the head, two of which caused
fatal brain injury. The autopsy also revealed a
.12 percent blood alcohol level in the victim's
body.
Later that
night, the defendant related an account of the
events leading to the killing, after Epley had
advised her of her constitutional rights and she
had waived her right to remain silent. The
defendant told Epley that her husband had been
beating her all day and had made her lie down on
the floor while he slept on the bed. After her
husband fell asleep, the defendant carried her
grandchild to the defendant's mother's house. The
defendant took a pistol from her mother's purse
and walked the short distance back to her home.
She pointed the pistol at the [*255] back of her
sleeping husband's head, but it jammed the first
time she tried to shoot him. She fixed the gun
[***5] and then shot her husband in the back of
the head as he lay sleeping. After one shot, she
felt her husband's chest and determined that he
was still breathing and making sounds. She then
shot him twice more in the back of the head. The
defendant told Epley that she killed her husband
because "she took all she was going to take
from him so she shot him."
The defendant
presented evidence tending to show a long history
of physical and mental abuse by her husband due
to his [**10] alcoholism. At the time of the
killing, the thirty-nine-year-old defendant and
her husband had been married almost twenty-five
years and had several children. The defendant
testified that her husband had started drinking
and abusing her about five years after they were
married. His physical abuse of her consisted of
frequent assaults that included slapping,
punching and kicking her, striking her with
various objects, and throwing glasses, beer
bottles and other objects at her. The defendant
described other specific incidents of abuse, such
as her husband putting her cigarettes out on her,
throwing hot coffee on her, breaking glass
against her face and crushing food on her face.
Although the defendant did not [***6] present
evidence of ever having received medical
treatment for any physical injuries inflicted by
her husband, she displayed several scars about
her face which she attributed to her husband's
assaults.
The defendant's
evidence also tended to show other indignities
inflicted upon her by her husband. Her evidence
tended to show that her husband did not work and
forced her to make money by prostitution, and
that he made humor of that fact to family and
friends. He would beat her if she resisted going
out to prostitute herself or if he was
unsatisfied with the amounts of money she made.
He routinely called the defendant
"dog," "bitch" and
"whore," and on a few occasions made
her eat pet food out of the pets' bowls and bark
like a dog. He often made her sleep on the floor.
At times, he deprived her of food and refused to
let her get food for the family. During those
years of abuse, the defendant's husband
threatened numerous times to kill her and to maim
her in various ways.
[*256] The
defendant said her husband's abuse occurred only
when he was intoxicated, but that he would not
give up drinking. She said she and her husband
"got along very well when he was
sober," and that [***7] he was "a good
guy" when he was not drunk. She had
accompanied her husband to the local mental
health center for sporadic counseling sessions
for his problem, but he continued to drink.
In the early
morning hours on the day before his death, the
defendant's husband, who was intoxicated, went to
a rest area off I-85 near Kings Mountain where
the defendant was engaging in prostitution and
assaulted her. While driving home, he was stopped
by a patrolman and jailed on a charge of driving
while impaired. After the defendant's mother got
him out of jail at the defendant's request later
that morning, he resumed his drinking and abuse
of the defendant.
The defendant's
evidence also tended to show that her husband
seemed angrier than ever after he was released
from jail and that his abuse of the defendant was
more frequent. That evening, sheriff's deputies
were called to the Norman residence, and the
defendant complained that her husband had been
beating her all day and she could not take it
anymore. The defendant was advised to file a
complaint, but she said she was afraid her
husband would kill her if she had him arrested.
The deputies told her they needed a warrant
before they could [***8] arrest her husband, and
they left the scene.
The deputies
were called back less than an hour later after
the defendant had taken a bottle of pills. The
defendant's husband cursed her and called her
names as she was attended by paramedics, and he
told them to let her die. A sheriff's deputy
finally chased him back into his house as the
defendant was put into an ambulance. The
defendant's stomach was pumped at the local
hospital, and she was sent home with her mother.
While in the
hospital, the defendant was visited by a
therapist with whom she discussed filing charges
against her husband and having him committed for
treatment. Before the therapist left, the
defendant agreed to go to the mental health
center the next day to discuss those
possibilities. The therapist testified at trial
that the defendant seemed depressed in the
hospital, and that she expressed considerable
anger toward her husband. He [*257] testified
that the defendant threatened a number of times
that night to kill her husband and that she
[**11] said she should kill him "because of
the things he had done to her."
The next day,
the day she shot her husband, the defendant went
to the mental health center to talk [***9] about
charges and possible commitment, and she
confronted her husband with that possibility. She
testified that she told her husband later that
day: "J. T., straighten up. Quit drinking.
I'm going to have you committed to help
you." She said her husband then told her he
would "see them coming" and would cut
her throat before they got to him.
The defendant
also went to the social services office that day
to seek welfare benefits, but her husband
followed her there, interrupted her interview and
made her go home with him. He continued his abuse
of her, threatening to kill and to maim her,
slapping her, kicking her, and throwing objects
at her. At one point, he took her cigarette and
put it out on her, causing a small burn on her
upper torso. He would not let her eat or bring
food into the house for their children.
That evening,
the defendant and her husband went into their
bedroom to lie down, and he called her a
"dog" and made her lie on the floor
when he lay down on the bed. Their daughter
brought in her baby to leave with the defendant,
and the defendant's husband agreed to let her
baby-sit. After the defendant's husband fell
asleep, the baby started crying and the defendant
[***10] took it to her mother's house so it would
not wake up her husband. She returned shortly
with the pistol and killed her husband.
The defendant
testified at trial that she was too afraid of her
husband to press charges against him or to leave
him. She said that she had temporarily left their
home on several previous occasions, but he had
always found her, brought her home and beaten
her. Asked why she killed her husband, the
defendant replied: "Because I was scared of
him and I knowed when he woke up, it was going to
be the same thing, and I was scared when he took
me to the truck stop that night it was going to
be worse than he had ever been. I just couldn't
take it no more. There ain't no way, even if it
means going to prison. It's better than living in
that. That's worse hell than anything."
[*258] The
defendant and other witnesses testified that for
years her husband had frequently threatened to
kill her and to maim her. When asked if she
believed those threats, the defendant replied:
"Yes. I believed him; he would, he would
kill me if he got a chance. If he thought he
wouldn't a had to went to jail, he would a done
it."
Two expert
witnesses in forensic psychology [***11] and
psychiatry who examined the defendant after the
shooting, Dr. William Tyson and Dr. Robert
Rollins, testified that the defendant fit the
profile of battered wife syndrome. This
condition, they testified, is characterized by
such abuse and degradation that the battered wife
comes to believe she is unable to help herself
and cannot expect help from anyone else. She
believes that she cannot escape the complete
control of her husband and that he is
invulnerable to law enforcement and other sources
of help.
Dr. Tyson, a
psychologist, was asked his opinion as to
whether, on 12 June 1985, "it appeared
reasonably necessary for Judy Norman to shoot J.
T. Norman?" He replied: "I believe that
. . . Mrs. Norman believed herself to be doomed .
. . to a life of the worst kind of torture and
abuse, degradation that she had experienced over
the years in a progressive way; that it would
only get worse, and that death was inevitable . .
. ." Dr. Tyson later added: "I think
Judy Norman felt that she had no choice, both in
the protection of herself and her family, but to
engage, exhibit deadly force against Mr. Norman,
and that in so doing, she was sacrificing
herself, both for herself and for [***12] her
family."
Dr. Rollins, who
was the defendant's attending physician at
Dorothea Dix Hospital when she was sent there for
evaluation, testified that in his opinion the
defendant was a typical abused spouse and that
"[s]he saw herself as powerless to deal with
the situation, that there was no alternative, no
way she could escape it." Dr. Rollins was
asked his opinion as to whether "on June
12th, 1985, it appeared reasonably [**12]
necessary that Judy Norman would take the life of
J. T. Norman?" Dr. Rollins replied that in
his opinion, "that course of action did
appear necessary to Mrs. Norman."
Based on the
evidence that the defendant exhibited battered
wife syndrome, that she believed she could not
escape her husband nor expect help from others,
that her husband had threatened [*259] her, and
that her husband's abuse of her had worsened in
the two days preceding his death, the Court of
Appeals concluded that a jury reasonably could
have found that her killing of her husband was
justified as an act of perfect self-defense. The
Court of Appeals reasoned that the nature of
battered wife syndrome is such that a jury could
not be precluded from finding the defendant
killed her husband [***13] lawfully in perfect
self-defense, even though he was asleep when she
killed him. We disagree.
The right to
kill in self-defense is based on the necessity,
real or reasonably apparent, of killing an
unlawful aggressor to save oneself from imminent
death or great bodily harm at his hands. State
v. Gappins, 320 N.C. 64, 357 S.E. 2d 654 (1987).
Our law has recognized that self-preservation
under such circumstances springs from a primal
impulse and is an inherent right of natural law. State
v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10
(1927).
In North
Carolina, a defendant is entitled to have the
jury consider acquittal by reason of perfect
self-defense when the evidence, viewed in the
light most favorable to the defendant, tends to
show that at the time of the killing it appeared
to the defendant and she believed it to be
necessary to kill the decedent to save herself
from imminent death or great bodily harm. State
v. Gappins, 320 N.C. at 71, 357 S.E. 2d at 659.
That belief must be reasonable, however, in that
the circumstances as they appeared to the
defendant would create [***14] such a belief in
the mind of a person of ordinary firmness. Id.
Further, the defendant must not have been the
initial aggressor provoking the fatal
confrontation. Id. A killing in the proper
exercise of the right of perfect self-defense is
always completely justified in law and
constitutes no legal wrong.
Our law also
recognizes an imperfect right of self-defense in
certain circumstances, including, for example,
when the defendant is the initial aggressor, but
without intent to kill or to seriously injure the
decedent, and the decedent escalates the
confrontation to a point where it reasonably
appears to the defendant to be necessary to kill
the decedent to save herself from imminent death
or great bodily harm. State v. Mize, 316 N.C.
48, 340 S.E. 2d 439 (1986); State v.
Wilson, 304 N.C. 689, 285 S.E. 2d 804 (1982).
Although the culpability of a defendant who kills
in the exercise of imperfect self-defense is
reduced, such a defendant is not [*260] justified
in the killing so as to be entitled to acquittal,
but is guilty at least of voluntary manslaughter.
State v. Mize, 316 N.C. at 52, 340 S.E. 2d at
441. [***15]
The defendant in
the present case was not entitled to a jury
instruction on either perfect or imperfect
self-defense. The trial court was not required to
instruct on either form of self-defense unless
evidence was introduced tending to show that at
the time of the killing the defendant reasonably
believed herself to be confronted by
circumstances which necessitated her killing her
husband to save herself from imminent death or
great bodily harm. Id. No such evidence was
introduced in this case, and it would have been
error for the trial court to instruct the jury on
either perfect or imperfect self-defense. See State
v. Gappins, 320 N.C. 64, 73, 357 S.E. 2d 654, 660
(1987); State v. Mize, 316 N.C. 48, 53,
340 S.E. 2d 439, 442 (1986); State v.
Spaulding, 298 N.C. 149, 157, 257 S.E. 2d 391,
396 (1979); State v. Marshall, 208 N.C.
127, 129, 179 S.E. 427, 428 (1935); State
v. Kidd, 60 N.C. App. 140, 142, 298 S.E. 2d 406,
408 (1982), disc. rev. denied, 307 N.C.
700, 301 S.E. 2d 393 (1983); [***16] State
v. Dial, 38 N.C. App. 529, 531, 248 S.E. 2d 366,
367 (1978); 40 C.J.S. Homicide § 123(b)
(1944).
The jury found
the defendant guilty only of voluntary
manslaughter in the present case. As we have
indicated, an instruction on imperfect
self-defense would have entitled [**13] the
defendant to nothing more, since one who kills in
the exercise of imperfect self-defense is guilty
at least of voluntary manslaughter. Therefore,
even if it is assumed arguendo that the defendant
was entitled to an instruction on imperfect
self-defense -- a notion we have specifically
rejected -- the failure to give such an
instruction was harmless in this case.
Accordingly, although we recognize that the
imminence requirement applies to both types of
self-defense for almost identical reasons, we
limit our consideration in the remainder of this
opinion to the issue of whether the trial court
erred in failing to instruct the jury to consider
acquittal on the ground that the killing was
justified and, thus, lawful as an act of perfect
self-defense.
The killing of
another human being is the most extreme recourse
to our inherent right of self-preservation and
can be justified [***17] in law only by the
utmost real or apparent necessity brought about
by the decedent. For that reason, our law of
self-defense [*261] has required that a defendant
claiming that a homicide was justified and, as a
result, inherently lawful by reason of perfect
self-defense must establish that she reasonably
believed at the time of the killing she otherwise
would have immediately suffered death or great
bodily harm. Only if defendants are required to
show that they killed due to a reasonable belief
that death or great bodily harm was imminent can
the justification for homicide remain clearly and
firmly rooted in necessity. The imminence
requirement ensures that deadly force will be
used only where it is necessary as a last resort
in the exercise of the inherent right of
self-preservation. It also ensures that before a
homicide is justified and, as a result, not a
legal wrong, it will be reliably determined that
the defendant reasonably believed that absent the
use of deadly force, not only would an unlawful
attack have occurred, but also that the attack
would have caused death or great bodily harm. The
law does not sanction the use of deadly force to
repel simple assaults. State v. Watkins, 283
N.C. 504, 196 S.E. 2d 750 (1973). [***18]
The term
"imminent," as used to describe such
perceived threats of death or great bodily harm
as will justify a homicide by reason of perfect
self-defense, has been defined as "immediate
danger, such as must be instantly met, such as
cannot be guarded against by calling for the
assistance of others or the protection of the
law." Black's Law Dictionary 676 (5th ed.
1979). Our cases have sometimes used the phrase
"about to suffer" interchangeably with
"imminent" to describe the immediacy of
threat that is required to justify killing in
self-defense. State v. Holland, 193 N.C. 713,
718, 138 S.E. 8, 10 (1927).
The evidence in
this case did not tend to show that the defendant
reasonably believed that she was confronted by a
threat of imminent death or great bodily harm.
The evidence tended to show that no harm was
"imminent" or about to happen to the
defendant when she shot her husband. The
uncontroverted evidence was that her husband had
been asleep for some time when she walked to her
mother's house, returned with the pistol, fixed
the pistol after it jammed and then shot her
husband three times in the back of the head. The
defendant was not faced [***19] with an
instantaneous choice between killing her husband
or being killed or seriously injured. Instead,
all of the evidence tended to show that the
defendant had ample time and opportunity to
resort to other [*262] means of preventing
further abuse by her husband. There was no action
underway by the decedent from which the jury
could have found that the defendant had
reasonable grounds to believe either that a
felonious assault was imminent or that it might
result in her death or great bodily injury.
Additionally, no such action by the decedent had
been underway immediately prior to his falling
asleep.
Faced with
somewhat similar facts, we have previously held
that a defendant who believed himself to be
threatened by the decedent was not entitled to a
jury instruction on either perfect or imperfect
self-defense when it was the defendant who went
to the decedent and initiated the final, fatal
confrontation. State v. Mize, 316 N.C. 48,
[**14] 340 S.E. 2d 439 (1986). In Mize, the
decedent Joe McDonald was reported to be looking
for the defendant George Mize to get revenge for
Mize's alleged rape of McDonald's girl friend,
which had exacerbated [***20] existing animosity
between Mize and McDonald. After hiding from
McDonald for most of the day, Mize finally went
to McDonald's residence, woke him up and then
shot and killed him. Mize claimed that he feared
McDonald was going to kill him and that his
killing of McDonald was in self-defense.
Rejecting Mize's argument that his jury should
have been instructed on self-defense, we stated:
Here, although
the victim had pursued defendant during the day
approximately eight hours before the killing,
defendant Mize was in no imminent danger while
McDonald was at home asleep. When Mize went to
McDonald's trailer with his shotgun, it was a new
confrontation. Therefore, even if Mize believed
it was necessary to kill McDonald to avoid his
own imminent death, that belief was unreasonable.
316 N.C. at
53, 340 S.E. 2d at 442 (citations omitted).
The same reasoning applies in the present case.
Additionally,
the lack of any belief by the defendant --
reasonable or otherwise -- that she faced a
threat of imminent death or great bodily harm
from the drunk and sleeping victim in the present
case was illustrated by the defendant and her own
expert witnesses [***21] when testifying about
her subjective assessment of her situation at the
time of the killing. The psychologist and
psychiatrist replied affirmatively when asked
their opinions of whether killing her husband
"appeared reasonably necessary" to the
defendant [*263] at the time of the homicide.
That testimony spoke of no imminent threat nor of
any fear by the defendant of death or great
bodily harm, imminent or otherwise. Testimony in
the form of a conclusion that a killing
"appeared reasonably necessary" to a
defendant does not tend to show all that must be
shown to establish self-defense. More
specifically, for a killing to be in
self-defense, the perceived necessity must arise
from a reasonable fear of imminent death or great
bodily harm.
Dr. Tyson
additionally testified that the defendant
"believed herself to be doomed . . . to a
life of the worst kind of torture and abuse,
degradation that she had experienced over the
years in a progressive way; that it would only
get worse, and that death was inevitable."
Such evidence of the defendant's speculative
beliefs concerning her remote and indefinite
future, while indicating she had felt generally
threatened, did not tend to [***22] show that she
killed in the belief -- reasonable or otherwise
-- that her husband presented a threat of
imminent death or great bodily harm. Under our
law of self-defense, a defendant's subjective
belief of what might be "inevitable" at
some indefinite point in the future does not
equate to what she believes to be
"imminent." Dr. Tyson's opinion that
the defendant believed it was necessary to kill
her husband for "the protection of herself
and her family" was similarly indefinite and
devoid of time frame and did not tend to show a
threat or fear of imminent harm.
The defendant
testified that, "I knowed when he woke up,
it was going to be the same thing, and I was
scared when he took me to the truck stop that
night it was going to be worse than he had ever
been." She also testified, when asked if she
believed her husband's threats: "Yes. . . .
[H]e would kill me if he got a chance. If he
thought he wouldn't a had to went to jail, he
would a done it." Testimony about such
indefinite fears concerning what her sleeping
husband might do at some time in the future did
not tend to establish a fear -- reasonable or
otherwise -- of imminent death or great bodily
harm at the [***23] time of the killing.
We are not
persuaded by the reasoning of our Court of
Appeals in this case that when there is evidence
of battered wife syndrome, neither an actual
attack nor threat of attack by the husband at the
moment the wife uses deadly force is required to
justify the wife's killing of him in perfect
self-defense. The Court [*264] of Appeals
concluded that to impose such requirements [**15]
would ignore the "learned
helplessness," meekness and other realities
of battered wife syndrome and would effectively
preclude such women from exercising their right
of self-defense. 89 N.C. App. 384, 392-393,
366 S.E. 2d 586, 591-592 (1988). See Mather,
The Skeleton in the Closet: The Battered Woman
Syndrome, Self-Defense, and Expert Testimony, 39
Mercer L. Rev. 545 (1988); Eber, The Battered
Wife's Dilemma: To Kill Or To Be Killed, 32
Hastings L.J. 895 (1981). Other jurisdictions
which have addressed this question under similar
facts are divided in their views, and we can
discern no clear majority position on facts
closely similar to those of this case. Compare,
e.g., Commonwealth v. Grove, 363 Pa. Super.
328, 526 A. 2d 369, [***24] appeal denied, 517
Pa. 630, 539 A. 2d 810 (1987) (abused wife
who killed her sleeping husband not entitled to
self-defense instruction as no immediate threat
was posed by the decedent), with State v.
Gallegos, 104 N.M. 247, 719 P. 2d 1268 (1986)
(abused wife could claim self-defense where she
walked into bedroom with gun and killed husband
who was awake but lying on the bed).
The reasoning of
our Court of Appeals in this case proposes to
change the established law of self-defense by
giving the term "imminent" a meaning
substantially more indefinite and
all-encompassing than its present meaning. This
would result in a substantial relaxation of the
requirement of real or apparent necessity to
justify homicide. Such reasoning proposes
justifying the taking of human life not upon the
reasonable belief it is necessary to prevent
death or great bodily harm -- which the imminence
requirement ensures -- but upon purely subjective
speculation that the decedent probably would
present a threat to life at a future time and
that the defendant would not be able to avoid the
predicted threat.
The Court of
Appeals suggests that such [***25] speculation
would have been particularly reliable in the
present case because the jury, based on the
evidence of the decedent's intensified abuse
during the thirty-six hours preceding his death,
could have found that the decedent's passive
state at the time of his death was "but a
momentary hiatus in a continuous reign of terror
by the decedent [and] the defendant merely took
advantage of her first opportunity to protect
herself." 89 N.C. App. at 394, 366 S.E.
2d at 592. Requiring jury instructions on
perfect self-defense in such [*265] situations,
however, would still tend to make opportune
homicide lawful as a result of mere subjective
predictions of indefinite future assaults and
circumstances. Such predictions of future
assaults to justify the defendant's use of deadly
force in this case would be entirely speculative,
because there was no evidence that her husband
had ever inflicted any harm upon her that
approached life-threatening injury, even during
the "reign of terror." It is far from
clear in the defendant's poignant evidence that
any abuse by the decedent had ever involved the
degree of physical threat required to justify the
defendant in [***26] using deadly force, even
when those threats were imminent. The use of
deadly force in self-defense to prevent harm
other than death or great bodily harm is
excessive as a matter of law. State v. Hunter,
315 N.C. 371, 338 S.E. 2d 99 (1986).
As we have
stated, stretching the law of self-defense to fit
the facts of this case would require changing the
"imminent death or great bodily harm"
requirement to something substantially more
indefinite than previously required and would
weaken our assurances that justification for the
taking of human life remains firmly rooted in
real or apparent necessity. That result in
principle could not be limited to a few cases
decided on evidence as poignant as this. The
relaxed requirements for perfect self-defense
proposed by our Court of Appeals would tend to
categorically legalize the opportune killing of
abusive husbands by their wives solely on the
basis of the wives' testimony concerning their
subjective speculation as to the probability of
future felonious assaults by their husbands.
Homicidal self-help would then become a lawful
solution, and perhaps the easiest and most
effective solution, to this problem. [***27] See
generally Rosen, The Excuse of Self-Defense:
Correcting A Historical [**16] Accident on Behalf
of Battered Women Who Kill, 36 Am. U.L. Rev. 11
(1986) (advocating changing the basis of
self-defense acquittals to excuse rather than
justification, so that excusing battered women's
killing of their husbands under circumstances not
fitting within the traditional requirements of
self-defense would not be seen as justifying and
therefore encouraging such self-help killing);
Mitchell, Does Wife Abuse Justify Homicide?, 24
Wayne L. Rev. 1705 (1978) (advocating
institutional rather than self-help solutions to
wife abuse and citing case studies at the trial
level where traditional defenses to homicide
appeared stretched to accommodate poignant [*266]
facts, resulting in justifications of some
killings which appeared to be motivated by
revenge rather than protection from death or
great bodily harm). It has even been suggested
that the relaxed requirements of self-defense
found in what is often called the "battered
woman's defense" could be extended in
principle to any type of case in which a
defendant testified that he or she [***28]
subjectively believed that killing was necessary
and proportionate to any perceived threat. Rosen,
The Excuse of Self-Defense: Correcting A
Historical Accident on Behalf of Battered Women
Who Kill, 36 Am. U.L. Rev. 11, 44 (1986).
In conclusion,
we decline to expand our law of self-defense
beyond the limits of immediacy and necessity
which have heretofore provided an appropriately
narrow but firm basis upon which homicide may be
justified and, thus, lawful by reason of perfect
self-defense or upon which a defendant's
culpability may be reduced by reason of imperfect
self-defense. As we have shown, the evidence in
this case did not entitle the defendant to jury
instructions on either perfect or imperfect
self-defense.
For the
foregoing reasons, we conclude that the
defendant's conviction for voluntary manslaughter
and the trial court's judgment sentencing her to
a six-year term of imprisonment were without
error. Therefore, we must reverse the decision of
the Court of Appeals which awarded the defendant
a new trial.
Reversed.
DISSENTBY:
MARTIN
DISSENT: Justice
Martin dissenting.
At the outset it
is to be noted that the peril of fabricated
evidence is not unique to the trials [***29] of
battered wives who kill. The possibility of
invented evidence arises in all cases in which a
party is seeking the benefit of self-defense.
Moreover, in this case there were a number of
witnesses other than defendant who testified as
to the actual presence of circumstances
supporting a claim of self-defense. This record
contains no reasonable basis to attack the
credibility of evidence for the defendant.
Likewise, the
difficulty of rebutting defendant's evidence
because the only other witness to many of the
events is deceased is not unique to this type of
case. This situation is also commonplace in cases
in which self-defense is raised, although, again,
[*267] in the case sub judice there was more than
one surviving witness to such events. In
considering the argument that the state is faced
with a difficult burden in attempting to rebut
evidence of which defendant is the only surviving
witness, one must not overlook the law: the
burden is always on the state to prove that the
killing was intentional beyond a reasonable
doubt. "Defendant may always rest ultimately
on the weakness of the state's case and the
state's failure to carry its burden of
proof." State v. Patterson, 297 N.C. 247,
256, 254 S.E. 2d 604, 610 (1979). [***30]
At the heart of
the majority's reasoning is its unsubstantiated
concern that to find that the evidence presented
by defendant would support an instruction on
self-defense would "expand our law of
self-defense beyond the limits of immediacy and
necessity." Defendant does not seek to
expand or relax the requirements of self-defense
and thereby "legalize the opportune killing
of allegedly abusive husbands by their
wives," as the majority overstates. Rather,
defendant contends that the evidence as gauged by
the existing laws of self-defense is sufficient
to require the submission of a self-defense
instruction to the [**17] jury. The proper issue
for this Court is to determine whether the
evidence, viewed in the light most favorable to
the defendant, was sufficient to require the
trial court to instruct on the law of
self-defense. I conclude that it was.
In every jury
trial, it is the duty of the court to charge the
jury on all substantial features of the case
arising on the evidence, whether or not such
instructions have been requested. See State v.
Dooley, 285 N.C. 158, 203 S.E. 2d 815 (1974).
All defenses presented by the defendant's
evidence are substantial [***31] features of the
case, even if that evidence contains
discrepancies or is contradicted by evidence from
the state. Id. This rule reflects the principle
in our jurisprudence that it is the jury, not the
judge, that weighs the evidence.
A defendant is
entitled to an instruction on self-defense when
there is evidence, viewed in the light most
favorable to the defendant, that these four
elements existed 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
[*268] (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 to protect himself from death or
great bodily harm.
State v.
Gappins, 320 N.C. 64, 71, 357 S.E. 2d 654, 659
(1987). [***32] See also State v. McCray,
312 N.C. 519, 324 S.E. 2d 606 (1985) (to be
entitled to an instruction on self-defense
defendant must produce evidence tending to show
he was free from fault and it was necessary or
reasonably appeared to be necessary to kill in
order to protect himself from great bodily harm
or death). See generally State v. Wallace, 309
N.C. 141, 305 S.E. 2d 548 (1983); State v.
Bush, 307 N.C. 152, 297 S.E. 2d 563 (1982); State
v. Wilson, 304 N.C. 689, 285 S.E. 2d 804 (1982);
State v. Norris, 303 N.C. 526, 279 S.E. 2d 570
(1981); State v. Potter, 295 N.C. 126, 244
S.E. 2d 397 (1978) (cases setting out these
elements as requisites of proof of self-defense).
The first element requires that there be evidence
that the defendant believed it was necessary to
kill in order to protect herself from serious
bodily harm or death; the second requires that
the circumstances as defendant perceived them
were sufficient to create such a belief in the
mind of a person of ordinary firmness. Both
[***33] elements were supported by evidence at
defendant's trial.
Evidence
presented by defendant described a twenty-year
history of beatings and other dehumanizing and
degrading treatment by her husband. In his expert
testimony a clinical psychologist concluded that
defendant fit "and exceed[ed]" the
profile of an abused or battered spouse,
analogizing this treatment to the dehumanization
process suffered by prisoners of war under the
Nazis during the Second World War and the
brainwashing techniques of the Korean War. The
psychologist described the defendant as a woman
incarcerated by abuse, by fear, and by her
conviction that her husband was invincible and
inescapable:
[*269] Mrs.
Norman didn't leave because she believed, fully
believed that escape was totally impossible.
There was no place to go. He, she had left
before; he had come and gotten her. She had gone
to the Department of Social Services. He had come
and gotten her. The law, she believed the law
could not protect her; no one could protect her,
and I must admit, looking over the records, that
there was nothing done that would contradict that
belief. She fully believed that he was
invulnerable to the law and to [***34] all social
agencies that were available; that nobody could
withstand his power. As a result, there was no
such thing as escape.
[**18] When
asked if he had an opinion whether it appeared
reasonably necessary for Judy Norman to shoot her
husband, this witness responded:
Yes. . . . I
believe that in examining the facts of this case
and examining the psychological data, that Mrs.
Norman believed herself to be doomed . . . to a
life of the worst kind of torture and abuse,
degradation that she had experienced over the
years in a progressive way; that it would only
get worse, and that death was inevitable; death
of herself, which was not such, I don't think was
such an issue for her, as she had attempted to
commit suicide, and in her continuing conviction
of J. T. Norman's power over her, and even failed
at that form of escape. I believe she also came
to the point of beginning to fear for family
members and her children, that were she to commit
suicide that the abuse and the treatment that was
heaped on her would be transferred onto them.
This testimony
describes defendant's perception of circumstances
in which she was held hostage to her husband's
abuse for two decades and [***35] which
ultimately compelled her to kill him. This
testimony alone is evidence amply indicating the
first two elements required for entitlement to an
instruction on self-defense.
In addition to
the testimony of the clinical psychologist,
defendant presented the testimony of witnesses
who had actually seen defendant's husband abuse
her. These witnesses described circumstances that
caused not only defendant to believe escape was
impossible, but that also convinced them of its
impossibility. Defendant's isolation and
helplessness were evident in testimony that her
family was intimidated by her husband into
acquiescing [*270] in his torture of her.
Witnesses also described defendant's experience
with social service agencies and the law, which
had contributed to her sense of futility and
abandonment through the inefficacy of their
protection and the strength of her husband's
wrath when they failed. Where torture appears
interminable and escape impossible, the belief
that only the death of the oppressor can provide
relief is reasonable in the mind of a person of
ordinary firmness, let alone in the mind of the
defendant, who, like a prisoner of war of some
years, has been deprived [***36] of her humanity
and is held hostage by fear.
In State v.
Mize, 316 N.C. 48, 53, 340 S.E. 2d 439, 442
(1986), this Court noted that if the
defendant was in "no imminent danger"
at the time of the killing, then his belief that
it was necessary to kill the man who had pursued
him eight hours before was unreasonable. The
second element of self-defense was therefore not
satisfied. In the context of the doctrine of
self-defense, the definition of
"imminent" must be informed by the
defendant's perceptions. It is not bounded merely
by measurable time, but by all of the facts and
circumstances. Its meaning depends upon the
assessment of the facts by one of "ordinary
firmness" with regard to whether the
defendant's perception of impending death or
injury was so pressing as to render reasonable
her belief that it was necessary to kill.
Evidence
presented in the case sub judice revealed no
letup of tension or fear, no moment in which the
defendant felt released from impending serious
harm, even while the decedent slept. This, in
fact, is a state of mind common to the battered
spouse, and one that dramatically distinguishes
Judy Norman's belief in the imminence [***37] of
serious harm from that asserted by the defendant
in Mize. Psychologists have observed and
commentators have described a "constant
state of fear" brought on by the cyclical
nature of battering as well as the battered
spouse's perception that her abuser is both
"omnipotent and unstoppable." See
Comment, The Admissibility of Expert Testimony on
the Battered Woman Syndrome in Support of a Claim
of Self-Defense, 15 Conn. L. Rev. 121, 131
(1982). Constant fear means a perpetual
anticipation of the next blow, a perpetual
expectation that the next blow will kill.
"[T]he battered wife is constantly in a
heightened state of terror because she is certain
that one day her husband will kill her during the
course of a beating . . . . Thus from the
perspective [*271] of the battered wife, the
danger is constantly 'immediate.'" Eber, The
Battered Wife's Dilemma: [**19] To Kill or To Be
Killed, 32 Hastings L.J. 895, 928-29 (1981). For
the battered wife, if there is no escape, if
there is no window of relief or momentary sense
of safety, then the next attack, which could be
the fatal one, is imminent. In the context of the
doctrine of self-defense, [***38]
"imminent" is a term the meaning of
which must be grasped from the defendant's point
of view. Properly stated, the second prong of the
question is not whether the threat was in fact
imminent, but whether defendant's belief in the
impending nature of the threat, given the
circumstances as she saw them, was reasonable in
the mind of a person of ordinary firmness. n1
n1 This
interpretation of the meaning of
"imminent" is reflected in the
Comments to the Model Penal Code: "The
actor must believe that his defensive action
is immediately necessary and the unlawful
force against which he defends must be force
that he apprehends will be used on the
present occasion, but he need not apprehend
that it will be immediately used." Model
Penal Code § 3.04 comment (ALI 1985).
Defendant's
intense fear, based on her belief that her
husband intended not only to maim or deface her,
as he had in the past, but to kill her, was
evident in the testimony of witnesses who
recounted events of the last three days of the
decedent's life. [***39] This testimony could
have led a juror to conclude that defendant
reasonably perceived a threat to her life as
"imminent," even while her husband
slept. Over these three days, her husband's anger
was exhibited in an unprecedented crescendo of
violence. The evidence showed defendant's fear
and sense of hopelessness similarly intensifying,
leading to an unsuccessful attempt to escape
through suicide and culminating in her belief
that escape would be possible only through her
husband's death.
Defendant
testified that on 10 June, two days before her
husband's death, he had again forced her to go to
a rest stop near Kings Mountain to make money by
prostitution. Her daughter Phyllis and Phyllis's
boyfriend Mark Navarra accompanied her on this
occasion because, defendant said, whenever her
husband took her there, he would beat her.
Phyllis corroborated this account. She testified
that her father had arrived some time later and
had begun beating her mother, asking how much
money she had. Defendant said they all then drove
off. Shortly afterwards an officer arrested
defendant's husband for driving under the
influence. He [*272] spent the night in jail and
was released the next [***40] morning on bond
paid by defendant's mother.
Defendant
testified that her husband was argumentative and
abusive all through the next day, 11 June. Mark
Navarra testified that at one point defendant's
husband threw a sandwich that defendant had made
for him on the floor. She made another; he threw
it on the floor, as well, then insisted she
prepare one without touching it. Defendant's
husband had then taken the third sandwich, which
defendant had wrapped in paper towels, and
smeared it on her face. Both Navarra and Phyllis
testified that they had later watched defendant's
husband seize defendant's cigarette and put it
out on her neck, the scars from which defendant
displayed to the jury.
A police officer
testified that he arrived at defendant's home at
8:00 that evening in response to a call reporting
a domestic quarrel. Defendant, whose face was
bruised, was crying, and she told the officer
that her husband had beaten her all day long and
that she could not take it any longer. The
officer told her that he could do nothing for her
unless she took out a warrant on her husband. She
responded that if she did, her husband would kill
her. The officer left but was soon radioed to
[***41] return because defendant had taken an
overdose of pills. The officer testified that
defendant's husband was interfering with
ambulance attendants, saying "Let the bitch
die." When he refused to respond to the
officer's warning that if he continued to hinder
the attendants, he would be arrested, the officer
was compelled to chase him into the house.
Defendant's
mother testified that her son-in-law had reacted
to the discovery that her daughter had taken the
pills with cursing and obscenities and threats
such as, "Now, you're going to pay for
taking those pills," and "I'll kill
you, your mother and your grandmother." His
rage was such that defendant's mother feared he
might kill the whole family, and knowing
defendant's [**20] sister had a gun in her purse,
she took the gun and placed it in her own.
Defendant was
taken to the hospital, treated, and released at
2:30 a.m. She spent the remainder of the night at
her grandmother's house. Defendant testified that
the next day, 12 June, she felt dazed all day
long. She went in the morning to the county
mental [*273] health center for guidance on
domestic abuse. When she returned home, she tried
to talk to her husband, telling him to
"straighten [***42] up. Quit drinking . . .
. I'm going to have you committed to help
you." Her husband responded, "If you
do, I'll see them coming and before they get
here, I'll cut your throat."
Later, her
husband made her drive him and his friend to
Spartanburg to pick up the friend's paycheck. On
the way, the friend testified, defendant's
husband "started slapping on her" when
she was following a truck too closely, and he
periodically poured his beer into a glass, then
reached over and poured it on defendant's head.
At one point defendant's husband lay down on the
front seat with his head on the arm rest,
"like he was going to go to sleep," and
kicked defendant, who was still driving, in the
side of the head.
Mark Navarra
testified that in the year and a half he had
lived with the Normans, he had never seen
defendant's husband madder than he was on 12
June, opining that it was the DUI arrest two days
before that had ignited J.T.'s fury. Phyllis
testified that her father had beaten her mother
"all day long." She testified that this
was the third day defendant's husband had
forbidden her to eat any food. Phyllis said
defendant's family tried to get her to eat, but
defendant, fearing a beating, [***43] would not.
Although Phyllis's grandmother had sent over a
bag of groceries that day, defendant's husband
had made defendant put them back in the bag and
would not let anyone eat them.
Early in the
evening of 12 June, defendant's husband told
defendant, "Let's go to bed." Phyllis
testified that although there were two beds in
the room, her father had forbidden defendant from
sleeping on either. Instead, he had made her lie
down on the concrete floor between the two beds,
saying, "Dogs don't lay in the bed. They lay
in the floor." Shortly afterward, defendant
testified, Phyllis came in and asked her father
if defendant could take care of her baby while
she went to the store. He assented and eventually
went to sleep. Defendant was still on the floor,
the baby on the small bed. The baby started to
cry and defendant "snuck up and took him out
there to [her] mother's [house]." She asked
her mother to watch the baby, then asked if her
mother had anything for headache, as her head was
"busting." Her mother responded that
she had some pain pills in her purse. Defendant
[*274] went in to get the pills, "and the
gun was in there, and I don't know, I just seen
the gun, and I took it [***44] out, and I went
back there and shot him."
From this
evidence of the exacerbated nature of the last
three days of twenty years of provocation, a
juror could conclude that defendant believed that
her husband's threats to her life were viable,
that serious bodily harm was imminent, and that
it was necessary to kill her husband to escape
that harm. And from this evidence a juror could
find defendant's belief in the necessity to kill
her husband not merely reasonable but compelling.
The third
element for entitlement to an instruction on
self-defense requires that there be evidence that
the defendant was not the aggressor in bringing
on the affray. If the defendant was the aggressor
and killed with murderous intent, that is, the
intent to kill or inflict serious bodily harm,
then she is not entitled to an instruction on
self-defense. State v. Mize, 316 N.C. 48, 340
S.E. 2d 439. A hiatus between provocation by
the decedent and the killing can mark the
initiation of a new confrontation between the
defendant and the decedent, such that the
defendant's earlier perception of imminent danger
no longer appears reasonable and the defendant
becomes the aggressor. [***45] For example, in
Mize, the defendant, who had been told the day
before that the decedent was "out to
get" him, went to the decedent's trailer
with a shotgun, knocked on the front door, and
hid under the steps when the decedent opened the
door and asked who was there. Defendant then went
to the back door, [**21] knocked again, and shot
the decedent. When the defendant went with his
shotgun to the decedent's trailer, this Court
said, it was a new confrontation, and if the
defendant still believed that it was necessary to
kill the decedent to avoid his own imminent
death, that belief was unreasonable.
Where the
defendant is a battered wife, there is no
analogue to the victim-turned-aggressor, who, as
in Mize, turns the tables on the decedent in a
fresh confrontation. Where the defendant is a
battered wife, the affray out of which the
killing arises can be a continuing assault. There
was evidence before the jury that it had not been
defendant but her husband who had initiated
"the affray," which the jury could have
regarded as lasting twenty years, three days, or
any number of hours preceding his death. And
there was evidence from which the jury could
infer that in [*275] defendant's [***46] mind the
affray reached beyond the moment at which her
husband fell asleep. Like the ongoing threats of
death or great bodily harm, which she might
reasonably have perceived as imminent, her
husband continued to be the aggressor and she the
victim.
Finally, the
fourth element of self-defense poses the question
of whether there was any evidence tending to show
that the force used by defendant to repel her
husband was not excessive, that is, more than
reasonably appeared to be necessary under the
circumstances. This question is answered in part
by abundant testimony describing defendant's
immobilization by fear caused by abuse by her
husband. Three witnesses, including the
decedent's best friend, all recounted incidents
in which defendant passively accepted beating,
kicks, commands, or humiliating affronts without
striking back. From such evidence that she was
paralyzed by her husband's presence, a jury could
infer that it reasonably appeared to defendant to
be necessary to kill her husband in order
ultimately to protect herself from the death he
had threatened and from severe bodily injury, a
foretaste of which she had already experienced.
In State v.
Wingler, 184 N.C. 747, 115 S.E. 59 (1922),
[***47] in which the defendant was found guilty
for the murder of his wife, Justice (later Chief
Justice) Stacy recognized the pain and oppression
under which a woman suffers at the hands of an
abusive husband: "The supreme tragedy of
life is the immolation of woman. With a heavy
hand, nature exacts from her a high tax of blood
and tears." Id. at 751, 115 S.E. at 61.
By his barbaric conduct over the course of twenty
years, J. T. Norman reduced the quality of the
defendant's life to such an abysmal state that,
given the opportunity to do so, the jury might
well have found that she was justified in acting
in self-defense for the preservation of her
tragic life.
It is to be
remembered that defendant does not have the
burden of persuasion as to self-defense; the
burden remains with the state to prove beyond a
reasonable doubt that defendant intentionally
killed decedent without excuse or justification.
See State v. Mash, 323 N.C. 339, 346, 372 S.E.
2d 532, 537 (1988) (the state must satisfy
the jury beyond a reasonable doubt that, despite
evidence of intoxication, defendant did form a
deliberate and [*276] premeditated intent [***48]
to kill). If the evidence in support of
self-defense is sufficient to create a reasonable
doubt in the mind of a rational juror whether the
state has proved an intentional killing without
justification or excuse, self-defense must be
submitted to the jury. This is such a case.
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