{ "id": 8524094, "name": "STATE OF NORTH CAROLINA v. MELVIN LEE MARSHALL", "name_abbreviation": "State v. Marshall", "decision_date": "1992-03-03", "docket_number": "No. 911SC559", "first_page": "518", "last_page": "526", "citations": [ { "type": "official", "cite": "105 N.C. App. 518" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "404 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "329 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554442 ], "year": 1991, "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0128-01" ] }, { "cite": "432 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178254 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/432/0233-01" ] }, { "cite": "220 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "288 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570479 ], "year": 1975, "pin_cites": [ { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0632-01" ] }, { "cite": "660 P.2d 1142", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "pin_cites": [ { "page": "1143", "parenthetical": "self defense" } ], "opinion_index": 0 }, { "cite": "443 A.2d 906", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1982, "pin_cites": [ { "page": "909", "parenthetical": "self defense" } ], "opinion_index": 0 }, { "cite": "646 F.2d 322", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1218053 ], "year": 1980, "pin_cites": [ { "page": "328", "parenthetical": "self defense and defense of others" } ], "opinion_index": 0, "case_paths": [ "/f2d/646/0322-01" ] }, { "cite": "388 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167274 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "17-19" }, { "page": "1022-23" } ], "opinion_index": 0, "case_paths": [ "/us/388/0014-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "294" }, { "page": "308" }, { "page": "294" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "230", "parenthetical": "instructional errors viewed under N.C.G.S. \u00a7 15A-1443" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "pin_cites": [ { "page": "505", "parenthetical": "instructional errors viewed under N.C.G.S. \u00a7 15A-1443" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "340 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "95", "parenthetical": "when supported by competent evidence, self defense is substantial feature of case entitling defendant to instruction" } ], "opinion_index": 0 }, { "cite": "315 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714364 ], "year": 1986, "pin_cites": [ { "page": "643", "parenthetical": "when supported by competent evidence, self defense is substantial feature of case entitling defendant to instruction" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0626-01" ] }, { "cite": "373 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "428", "parenthetical": "failure to instruct on substantial feature of case is error" } ], "opinion_index": 0 }, { "cite": "323 N.C. 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560540 ], "year": 1988, "pin_cites": [ { "page": "458", "parenthetical": "failure to instruct on substantial feature of case is error" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0455-01" ] }, { "cite": "348 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "defendant not entitled to defense of habitation instruction where defendant shot victim in bedroom of defendant's home" } ], "opinion_index": 0 }, { "cite": "318 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736584 ], "year": 1986, "pin_cites": [ { "parenthetical": "defendant not entitled to defense of habitation instruction where defendant shot victim in bedroom of defendant's home" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0390-01" ] }, { "cite": "337 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "93-94" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519679 ], "year": 1985, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0100-01" ] }, { "cite": "253 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "297 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567263 ], "year": 1979, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0151-01" ] }, { "cite": "301 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563204, 8563242, 8563180, 8563153, 8563284 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0100-03", "/nc/301/0100-04", "/nc/301/0100-02", "/nc/301/0100-01", "/nc/301/0100-05" ] }, { "cite": "265 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1980, "pin_cites": [ { "page": "415" }, { "page": "416" }, { "page": "415", "parenthetical": "defendant shot decedent as decedent threatened to re-enter defendant's home and kill defendant" }, { "page": "416" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552084 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0569-01" ] }, { "cite": "281 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "defense arises when occupier acts to prevent forcible entry of home" } ], "opinion_index": 0 }, { "cite": "303 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573378, 8573316, 8573357, 8573335, 8573401 ], "year": 1981, "pin_cites": [ { "parenthetical": "defense arises when occupier acts to prevent forcible entry of home" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0317-04", "/nc/303/0317-01", "/nc/303/0317-03", "/nc/303/0317-02", "/nc/303/0317-05" ] }, { "cite": "278 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "318", "parenthetical": "defense arises when occupier acts to prevent forcible entry of home" }, { "page": "318", "parenthetical": "defendant not entitled to defense of habitation instruction where defendant shot and killed victim inside defendant's home" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170224 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "330", "parenthetical": "defense arises when occupier acts to prevent forcible entry of home" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0326-01" ] }, { "cite": "148 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "267 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559490 ], "year": 1966, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0409-01" ] }, { "cite": "261 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1980, "pin_cites": [ { "page": "5", "parenthetical": "emphasis added" }, { "page": "5", "parenthetical": "defendant may produce evidence or rely on State's evidence to establish defense of habitation" }, { "page": "5" }, { "page": "5", "parenthetical": "when supported by competent evidence, defense of habitation is substantial feature of case entitling defendant to instruction" }, { "page": "5" }, { "page": "5", "parenthetical": "trial court instructed jury on defense of family member not defense of habitation" } ], "opinion_index": 0 }, { "cite": "299 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573459 ], "weight": 6, "year": 1980, "pin_cites": [ { "page": "107", "parenthetical": "emphasis added" }, { "page": "107" }, { "page": "107" }, { "page": "107" }, { "page": "107" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0103-01" ] }, { "cite": "377 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "63" }, { "page": "63" }, { "page": "64" } ], "opinion_index": 0 }, { "cite": "324 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486736 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "161" }, { "page": "161" }, { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0146-01" ] }, { "cite": "372 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "537", "parenthetical": "consider evidence of defenses in light most favorable to defendant" }, { "page": "537" }, { "page": "538" }, { "page": "537", "parenthetical": "unconstitutional to shift burden of persuasion on essential elements of crime to defendant" } ], "opinion_index": 0 }, { "cite": "323 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564377 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "348", "parenthetical": "consider evidence of defenses in light most favorable to defendant" }, { "page": "348" }, { "page": "349" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0339-01" ] } ], "analysis": { "cardinality": 841, "char_count": 18236, "ocr_confidence": 0.78, "pagerank": { "raw": 4.77601976636883e-07, "percentile": 0.9306432537186531 }, "sha256": "9f6fcbf19af0ffa8af25659043d7f0e13b716bdb3d6ba2914fd22e97a715b57e", "simhash": "1:8169503a75999c52", "word_count": 3068 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MELVIN LEE MARSHALL" ], "opinions": [ { "text": "GREENE, Judge.\nThe defendant appeals from a judgment entered 14 February 1991, which judgment was based upon a jury verdict convicting the defendant of voluntary manslaughter.\nIn this case, we must view the evidence in the light most favorable to the defendant. State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988) (consider evidence of defenses in light most favorable to defendant). Viewed accordingly, the evidence tends to show the following: In June, 1990, the defendant lived in a trailer in a mobile home park in Buxton, North Carolina. Kil Jennette (Jennette) lived in the same mobile home park as the defendant in a trailer located close to the defendant\u2019s trailer. On two occasions in May, 1990, the defendant and Jennette argued and fought over the volume at which each of them played music from stereos. At approximately 10:00 p.m. on 18 June 1990, neighbors of the defendant and Jennette heard \u201cscreaming and hollering\u201d coming from the direction of the defendant\u2019s trailer. One neighbor, Nacie Barnett, testified that a few seconds after he had heard the screaming, he heard two gunshots within one or two seconds of each other coming from the same direction as the screaming. Another neighbor, Michael Rak (Rak), also heard these gunshots. Approximately five minutes later, the defendant arrived at Rak\u2019s residence \u201cin a state of almost shock bewilderment\u201d and said, \u201cCall the cops. I\u2019ve shot someone. I think he\u2019s dying.\u201d Although the defendant remained relatively quiet until the police arrived, the defendant did tell Rak that Jennette had entered his trailer and had hit him with a 2x2 stick.\nDoctor Page Hudson, a forensic pathologist, examined Jennette\u2019s body and discovered that Jennette had been shot in his left lower back at roughly his beltline and had died as a result of this injury. Furthermore, he also determined that Jennette had beverage alcohol in his system \u201cto a concentration of 110 milligrams percent. That is the same as a point 11 percent on the Breathalyzer scale.\u201d\nThe defendant testified on his own behalf. His evidence tends to show the following: At approximately 10:00 a.m. on 18 June 1990, he and Eugene Clinton (Clinton) decided to take the day off from work because materials for a roofing job they were doing had not arrived. The defendant went home and began drinking beer while cleaning his trailer and doing other household chores. At about 6:00 p.m., Greg Austin (Austin) and Cord Powell (Powell) arrived at the defendant\u2019s trailer. The three of them sat around the defendant\u2019s trailer, talked, and drank beer. Sometime later, Clinton and his girlfriend came over to the defendant\u2019s trailer, and the five of them continued to talk and drink beer. Around 8:30 p.m., Austin and Powell left, and the defendant and Clinton began talking about the job they had to do the next day. Clinton\u2019s girlfriend saw the defendant\u2019s shotgun in the living room and wanted to take a closer look at it. The defendant unloaded it and allowed her and Clinton to examine it. He explained that the reason he kept it in the living room was because he had been having trouble with a local dog getting into his trash. After they had examined it, the defendant reloaded the shotgun and leaned it against the wall behind a chair about six to eight feet from the trailer door. Around 10:00 p.m., Clinton and his girlfriend left the defendant\u2019s trailer.\nAfter everyone had gone, the defendant got another beer, turned up the music a little bit, sat down on his couch which was located in the living room opposite the trailer door, and began to think about his job. At that point, Jennette opened the trailer door, ran inside carrying an approximately three-foot-long 2x2 stick, and screamed that he was going to kill the defendant. As Jennette hit the defendant with the stick, the defendant covered himself to avoid blows to his head. The defendant then fought back. He tried to grab the stick, but Jennette slipped onto the defendant\u2019s back and pulled the stick to the defendant\u2019s throat. As the fighting eased up temporarily, the defendant tried to talk to Jennette. Soon, however, the fighting intensified. The defendant managed to push Jennette out of the trailer and onto the steps. Jennette drew the stick back \u201clike a bat\u201d and began yelling at the defendant. As Jennette lowered the stick, the defendant reached over to turn the volume down on his stereo. When he did, Jennette raised the stick and began moving towards the trailer. The defendant jumped backwards, and Jennette entered the trailer for a second time. They struggled, but the defendant again managed to push Jennette out of the trailer. At this point, Jennette and the defendant had been fighting for the majority of five to eight minutes. The defendant was tired, scared, and unsure of his ability to continue to fight back. The defendant then grabbed his shotgun, and when he looked oyer his shoulder, he saw Jennette coming back into the trailer with the stick raised in the air. The defendant brought the butt of his shotgun to his waist and kept the barrel up. The shotgun discharged as Jennette was facing him just inside the doorway of the trailer. The defendant did not know if he had hit Jennette with his first shot. As Jennette jumped backwards, the defendant jumped forwards and quickly fired the shotgun a second time. The defendant fired both shots from inside his trailer. After firing the second shot, the defendant left the trailer and discovered Jennette on the ground. He then went inside his trailer, put on his socks, shoes, and a shirt, went to Rak\u2019s house, and told Rak to call the police.\nThe defendant was tried on the charge of first degree murder. The defendant requested in writing jury instructions on self defense and the defense of habitation. The trial court instructed the jury on self defense, but not on the defense of habitation. The jury returned a verdict of guilty of voluntary manslaughter.\nThe dispositive issue is whether a defendant is entitled to an instruction on the defense of habitation where the defendant\u2019s evidence tends to show that a person entered the defendant\u2019s home, assaulted the defendant, left the defendant\u2019s home, and was shot by the defendant as he attempted to re-enter the defendant\u2019s home.\nThe defendant argues that the trial court erred in refusing to instruct the jury on the defense of habitation. We agree.\n\u201cIn determining whether to give the substance of an instruction concerning a defense, . . . the trial court must . . . assess the evidence first for the legal principles it implicates, and second for the sufficiency of the evidence itself.\u201d State v. Clark, 324 N.C. 146, 161, 377 S.E.2d 54, 63 (1989). The defendant met the first prong of this test. The North Carolina Supreme Court has stated the legal principles of defense of habitation as follows:\nA person has the right to use deadly force in the defense of his habitation in order to prevent a forcible entry, even if the intruder is not armed with a deadly weapon, where the attempted forcible entry is made under such circumstances that the person reasonably apprehends death or great bodily harm to himself or the occupants of the home at the hands of the assailant or believes that the assailant intends to commit a felony.\nState v. Jones, 299 N.C. 103, 107, 261 S.E.2d 1, 5 (1980) (emphasis added). The defendant\u2019s evidence implicates these legal principles in that it tends to show that the defendant used deadly force to prevent an intruder armed with a three-foot-long 2x2 stick from forcibly entering his home.\n\u201cThe second prong of the trial court\u2019s test for whether the evidence mandates an instruction requires that the court measure the substantiality of the evidence.\u201d Clark, 324 N.C. at 161, 377 S.E.2d at 63. Where the defendant\u2019s or the State\u2019s evidence when viewed in the light most favorable to the defendant discloses facts which are \u201clegally sufficient\u201d to constitute a defense to the charged crime, the trial court must instruct the jury on the defense. Id.; Mash, 323 N.C. at 348, 372 S.E.2d at 537; Jones, 299 N.C. at 107, 261 S.E.2d at 5 (defendant may produce evidence or rely on State\u2019s evidence to establish defense of habitation). With regard to the defense of habitation, the measure of legal sufficiency is the \u201cany competent evidence\u201d standard. See Clark, 324 N.C. at 162, 377 S.E.2d at 64; Jones, 299 N.C. at 107, 261 S.E.2d at 5; State v. Miller, 267 N.C. 409, 412, 148 S.E.2d 279, 282 (1966). Therefore, if there is any competent evidence in the record when viewed in the light most favorable to the defendant from which the jury could determine that the defendant acted to prevent a forcible entry into his home and that the defendant reasonably apprehended death or great bodily injury at the hands of the intruder, then the defendant is entitled to an instruction on the defense of habitation.\nThe defendant\u2019s evidence raises the issue of defense of habitation. From the defendant\u2019s evidence the jury could infer that Jennette ran unannounced into the defendant\u2019s home carrying a large stick and screaming that he was going to kill the defendant; that Jen-nette hit the defendant with the stick forcing the defendant to protect himself from potentially lethal strikes to his head; that Jennette also tried to choke the defendant with the stick; that the defendant twice repelled Jennette\u2019s attacks,, but after five to eight minutes of nearly uninterrupted brawling, the defendant became weak and more afraid for his safety; that he was unsure of his ability to continue to repel Jennette; that after he had pushed Jennette out of his home for a second time, he reached over and got his shotgun; and that the defendant shot and killed Jennette as he was entering the defendant\u2019s home for the third time with the stick in his hand. This evidence, if accepted by the jury, would support a determination by the jury that the defendant acted to prevent Jennette from forcibly entering his home and that the defendant reasonably apprehended death or great bodily harm to himself at the hands of Jennette. State v. Martin, 52 N.C. App. 326, 330, 278 S.E.2d 315, 318, disc. rev. denied, 303 N.C. 317, 281 S.E.2d 390 (1981) (defense arises when occupier acts to prevent forcible entry of home).\nThat Jennette was shot in the lower back does not on these facts eliminate the necessity of the defense of habitation instruction, and the State does not argue otherwise. We are not prepared to hold as a matter of law that under the circumstances facing the defendant, he should have fired only one shot and then waited to ascertain whether that one shot had repelled Jennette\u2019s attempted forcible re-entry. That issue is for the jury to decide after proper instructions on the defense of habitation. Furthermore, the facts presented here are analogous to the facts in State v. Hedgepeth, 46 N.C. App. 569, 265 S.E.2d 413, disc. rev. denied, 301 N.C. 100 (1980), in which case this Court held that the facts required an. instruction of the defense of habitation. In Hedgepeth, an intruder \u201cpeeped\u201d around the door frame to the defendant\u2019s home, said he was going to kill the defendant, pulled his head back out of the doorway, and again \u201cpeeped\u201d around the door frame. Id. at 570, 265 S.E.2d at 415. The defendant then shot the intruder in the neck because it was the only body part of the intruder visible to the defendant. Id. Despite the fact that the intruder was only \u201cpeeping\u201d around the door frame and not actually on his way into the defendant\u2019s home when the defendant shot him, this Court held that the defendant was entitled to the defense of habitation instruction. Id. at 573, 265 S.E.2d at 416. Likewise, in this case, the jury, not this Court, must decide \u201cwhether [the] defendant was acting within the framework of the defense of habitation when he shot the decedent.\u201d Id.\nThe State argues, however, that because Jennette had already entered the defendant\u2019s home before his third attempted forcible entry, the defendant was only entitled to an instruction on self defense. We disagree. We realize that once an intruder enters a person\u2019s home, \u201cthe usual rules of self-defense replace the rules gov\u00e9rning defense of habitation, with the exception that there is no duty to retreat.\u201d State v. McCombs, 297 N.C. 151, 157, 253 S.E.2d 906, 910 (1979). Under this rule, had Jennette been inside the defendant\u2019s home when the defendant shot and killed him, the defendant would not be entitled to an instruction on defense of habitation. State v. Lilley, 78 N.C. App. 100, 107, 337 S.E.2d 89, 93-94 (1985), aff'd, 318 N.C. 390, 348 S.E.2d 788 (1986) (defendant not entitled to defense of habitation instruction where defendant shot victim in bedroom of defendant\u2019s home); Martin, 52 N.C. App. at 330, 278 S.E.2d at 318 (defendant not entitled to defense of habitation instruction where defendant shot and killed victim inside defendant\u2019s home). However, the fact that Jennette had previously entered the defendant\u2019s home and had been repelled does not eliminate the requirement for the instruction where the defendant\u2019s evidence tends to show that Jennette was shot while attempting to forcibly re-enter the defendant\u2019s home. See Hedgepeth, 46 N.C. App. at 570, 265 S.E.2d at 415 (defendant shot decedent as decedent threatened to re-enter defendant\u2019s home and kill defendant). The defense of habitation is not limited to the situation where the occupant is unaware of the identity and motive of an intruder. Id. at 572, 265 S.E.2d at 416. To the contrary, \u201cthe defense is limited to the situation where one shoots in order to prevent a forcible entry into his habitation.\u201d Id. Accordingly, on the evidence presented, although the defendant was familiar with his intruder\u2019s identity and motive, he was entitled to have the jury instructed on the defense of habitation, and the trial court\u2019s failure to instruct the jury on this substantial feature of the case was error. Jones, 299 N.C. at 107, 261 S.E.2d at 5 (when supported by competent evidence, defense of habitation is substantial feature of case entitling defendant to instruction); see N.C.G.S. \u00a7 15A-1232 (1988); State v. Rose, 323 N.C. 455, 458, 373 S.E.2d 426, 428 (1988) (failure to instruct on substantial feature of case is error); State v. Morgan, 315 N.C. 626, 643, 340 S.E.2d 84, 95 (1986) (when supported by competent evidence, self defense is substantial feature of case entitling defendant to instruction).\nHaving determined that the trial court erred in failing to instruct the jury on the defense of habitation, we must decide whether this error entitles the defendant to a new trial. N.C.G.S. \u00a7 15A-1443 (1988); see Mash, 323 N.C. at 349, 372 S.E.2d at 538 (failure to instruct on voluntary intoxication viewed under N.C.G.S. \u00a7 15A-1443); State v. Wallace, 104 N.C. App. 498, 505, 410 S.E.2d 226, 230 (1991) (instructional errors viewed under N.C.G.S. \u00a7 15A-1443). We conclude that it does.\n\u201cThe right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State\u2019s accusations.\u201d Chambers v. Mississippi, 410 U.S. 284, 294, 35 L.Ed.2d 297, 308 (1973). A corollary to this right is the defendant\u2019s right to establish a defense. Id. at 294, 35 L.Ed.2d at 308; Washington v. Texas, 388 U.S. 14, 17-19, 18 L.Ed.2d 1019, 1022-23 (1967). Where, in cases like this, there is sufficient evidence to support an instruction on the defense of habitation, due process requires that the trial court instruct the jury on the defense. See United States ex rel. Means v. Solem, 646 F.2d 322, 328 (8th Cir. 1980) (self defense and defense of others); State v. Miller, 443 A.2d 906, 909 (Conn. 1982) (self defense); State v. LeBlanc, 660 P.2d 1142, 1143 (Wash. Ct. App. 1983) (self defense). To hold otherwise would unconstitutionally relieve the State of its burden of \u201cproving beyond a reasonable doubt that the defendant did not act in lawful defense of home when defendant has met his burden of going forward to produce evidence that he did.\u201d Jones, 299 N.C. at 107, 261 S.E.2d at 5; State v. Hankerson, 288 N.C. 632, 643, 220 S.E.2d 575, 584 (1975), rev\u2019d on other grounds, 432 U.S. 233, 53 L.Ed.2d 306 (1977); see Mash, 323 N.C. at 347, 372 S.E.2d at 537 (unconstitutional to shift burden of persuasion on essential elements of crime to defendant).\nBecause the trial court\u2019s error in this case is of constitutional dimension, we presume that the error prejudiced the defendant. N.C.G.S. \u00a7 15A-1443(b) (1988). Therefore, the burden is on the State to prove beyond a reasonable doubt that the error was harmless. Id. Although the State does not argue this issue in its brief, our review of the record reveals that the State has not met its burden. The State\u2019s evidence of guilt is not overwhelming. State v. Arnold, 329 N.C. 128, 140, 404 S.E.2d 822, 830 (1991). Furthermore, that the trial court instructed the jury on self defense does not cure the error for failing to give the required instruction. Cf. Jones, 299 N.C. at 107, 261 S.E.2d at 5 (trial court instructed jury on defense of family member not defense of habitation).\nBecause of our resolution of this issue, we need not address the defendant\u2019s remaining assignments of error. The defendant is entitled to a\nNew trial.\nJudges JOHNSON and COZORT concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by V. Lori Fuller, Assistant Attorney General, for the State.", "Aycock, Spence & Butler, by W. Mark Spence, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MELVIN LEE MARSHALL\nNo. 911SC559\n(Filed 3 March 1992)\nHomicide \u00a7 637 (NCI4th)\u2014 victim\u2019s attempted reentry into home \u2014 defense of habitation \u2014 defendant entitled to instruction\nDefendant was entitled to an instruction on the defense of habitation where defendant\u2019s evidence tended to show that the victim entered defendant\u2019s home, assaulted him, left defendant\u2019s home, and was shot by defendant as he attempted to reenter defendant\u2019s home, and the trial court\u2019s error in failing so to instruct entitled defendant to a new trial.\nAm Jur 2d, Homicide \u00a7\u00a7 174, 175, 177, 514.\nAppeal by defendant from judgment entered 14 February 1991 in DARE County Superior Court by Judge Herbert W. Small. Heard in the Court of Appeals 18 February 1992.\nLacy H. Thornburg, Attorney General, by V. Lori Fuller, Assistant Attorney General, for the State.\nAycock, Spence & Butler, by W. Mark Spence, for defendant-appellant." }, "file_name": "0518-01", "first_page_order": 546, "last_page_order": 554 }