{ "id": 4736584, "name": "STATE OF NORTH CAROLINA v. JAMES CLIFFORD LILLEY", "name_abbreviation": "State v. Lilley", "decision_date": "1986-10-07", "docket_number": "No. 22A86", "first_page": "390", "last_page": "394", "citations": [ { "type": "official", "cite": "318 N.C. 390" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "337 S.E. 2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "Parker, J., with Hedrick, C.J., concurring and Becton, J., dissenting" } ], "opinion_index": -1 }, { "cite": "78 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519679 ], "year": 1985, "pin_cites": [ { "parenthetical": "Parker, J., with Hedrick, C.J., concurring and Becton, J., dissenting" } ], "opinion_index": -1, "case_paths": [ "/nc-app/78/0100-01" ] }, { "cite": "340 S.E. 2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "340 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714364 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0626-01" ] }, { "cite": "215 S.E. 2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564656 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0034-01" ] }, { "cite": "431 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1639 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "154" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/us/431/0145-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "378" }, { "page": "378" }, { "page": "378-79" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "341 S.E. 2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703364, 4704202, 4696018, 4701593, 4702012 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0199-01", "/nc/316/0199-05", "/nc/316/0199-03", "/nc/316/0199-04", "/nc/316/0199-02" ] }, { "cite": "337 S.E. 2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "93" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519679 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0100-01" ] } ], "analysis": { "cardinality": 511, "char_count": 10274, "ocr_confidence": 0.727, "pagerank": { "raw": 7.178701687170851e-08, "percentile": 0.42971404896578913 }, "sha256": "47864adecf0673509eb91e14f94bde12406bb28195c4828c5351730459917bf6", "simhash": "1:a31ad5aa66ada2f0", "word_count": 1782 }, "last_updated": "2023-07-14T18:03:08.889643+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JAMES CLIFFORD LILLEY" ], "opinions": [ { "text": "BROWNING, Justice.\nThe question presented is whether, notwithstanding defendant\u2019s failure to request an instruction or object to its omission, the trial judge committed \u201cplain error\u201d in failing to instruct the jury on the right of one attacked in his own home to act in self-defense without first retreating. We hold that under the circumstances of this case it is not \u201cplain error\u201d and affirm the Court of Appeals.\nI.\nThe State\u2019s evidence tended to show that, at the time of the incident, defendant was living with the victim\u2019s sister, Lisa Wilson, in the same apartment complex in Chapel Hill where the victim, Michael Wilson, lived. On 24 June 1984, defendant went to the victim\u2019s apartment and asked Wilson if he would take his sister to the hospital.\nWilson asked what was wrong with Lisa and defendant admitted that they had been quarreling and that he had hit her. Wilson replied, \u201cYou hit my sister. I\u2019ll kill you.\u201d Upon hearing this, defendant raised the pistol he had in his hand, pointed it at Wilson and said, \u201cYou ain\u2019t going to do a goddamn thing.\u201d Wilson ignored defendant, who then left and returned to his own apartment.\nWilson went to defendant\u2019s apartment a few minutes later, entered the open front door without knocking, and heard his sister and defendant fighting. He walked back to the bedroom. Defendant was in the bedroom, standing between the door and the bed, with the gun still in his hand. Wilson pushed defendant aside to place himself between the defendant and his sister at which point defendant shot him.\nDefendant\u2019s evidence was in conflict with the State\u2019s evidence and tended to show that defendant did not have a gun when he went to the victim\u2019s apartment; that while in the victim\u2019s apartment the victim threatened to kill defendant; that defendant returned to his apartment and then got his gun because of the victim\u2019s threat and the fact that defendant knew the victim had several guns; that defendant was afraid the victim was going to try to kill him; that the victim entered defendant\u2019s apartment, came into the bedroom, shoved his sister aside and came at defendant; that the victim reached down toward his waistband; that defendant thought the victim was going after his gun when defendant shot the victim.\nAt trial, the trial court failed to instruct the jury on the right of one to use force in self-defense without retreating when one is in his own home. Defendant acknowledges that he neither requested this instruction nor did he object to its omission. The jury returned a verdict of guilty of assault with a deadly weapon inflicting serious injury, and the trial judge sentenced defendant to the presumptive sentence of three years imprisonment.\nIn his appeal to the Court of Appeals, defendant contended that the trial court erred in failing to instruct that defendant had no duty to retreat if he were attacked in his own home. A majority of the Court of Appeals\u2019 panel rejected defendant\u2019s argument, holding that the trial court should have included such an instruction, but that the failure to give it was not \u201cplain error.\u201d\nJudge Becton, believing that the trial judge committed \u201cplain error\u201d by failing to instruct the jury on the right of defendant to use force in self-defense without retreating because he was in his own home, dissented. Defendant appeals the decision of the Court of Appeals on this issue as a matter of right. N.C.R. App. P. 16(b). Defendant\u2019s Petition for Discretionary Review as to the other issues raised in his brief was denied. State v. Lilley, 78 N.C. App. 100, 337 S.E. 2d 89 (1985), disc. rev. denied, 316 N.C. 199, 341 S.E. 2d 582 (1986).\nII.\nDefendant complains that the trial judge committed prejudicial error by failing to instruct the jury on the right of one to use force in self-defense without retreating when he is in his own home. Although defendant did not request such an instruction at trial, nor did he object to its- omission, he asks us to consider it on appeal under the \u201cplain error\u201d rule, adopted in State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983), as an exception to North Carolina Rule of Appellate Procedure 10(b)(2). The exception provides that \u201cplain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\u201d Id. at 660, 300 S.E. 2d at 378, citing Fed. R. Crim. P. 52(b). In adopting the \u201cplain error\u201d rule, this Court said, \u201c \u2018[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.\u2019 \u201d Id. at 661, 300 S.E. 2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L.Ed. 2d 203, 212 (1977)).\nFor the reasons set forth below, we conclude that the trial court should have included an instruction that defendant had no duty to retreat, but in the case before us, the failure to give such an instruction does not constitute \u201cplain error.\u201d\nFirst, the rule allowing a person to stand his ground and not retreat when attacked in his home applies only when the defendant is free from fault in bringing on the confrontation leading to the assault. State v. Pearson, 288 N.C. 34, 215 S.E. 2d 598 (1975). As the Court of Appeals\u2019 majority opinion concluded:\nIn this case, a reasonable juror could conclude that the defendant was not free from fault where there was evidence showing that defendant had hit the victim\u2019s sister; that defendant had earlier pointed a gun at the victim; that defendant had asked the victim to come over; that the victim heard the defendant and his sister quarreling when he entered their apartment; and that defendant still had the gun in his hand when the victim entered the bedroom. This evidence is sufficient to support a conclusion that the defendant was not free from fault and, thus, could not avail himself of the general rule that one has no duty to retreat when attacked at home.\nState v. Lilley, 78 N.C. App. at 106, 337 S.E. 2d at 93.\nSecond, there is conflicting evidence as to whether the victim attacked defendant. Defendant\u2019s evidence tended to show that the victim \u201cjumped on\u201d defendant. The victim testified that he merely pushed defendant aside to step between defendant and his sister. Here, the jury, apparently finding the victim to be more credible, reached the conclusion that there had been no violent attack by the victim; that defendant used excessive force in responding to any assault by the victim; or even that there had been no assault by the victim. An instruction on the right to stand ground and not retreat when attacked in one\u2019s home would not likely have changed the result in this case.\nThird, in the recent case of State v. Morgan, 315 N.C. 626, 340 S.E. 2d 84 (1986), this Court discussed the \u201cplain error\u201d rule in a \u201cself-defense\u201d case where the homicide took place in the defendant\u2019s residence and business. As in the present case, the defendant in Morgan submitted no request for special jury instructions to the effect that he had the right to stand his ground and repel force with force in his own home or place of business, if he were found not to be the aggressor, nor did he object to the trial court\u2019s failure to so charge the jury. This Court held that although it was error for the trial court not to instruct the jury as to one\u2019s right to stand his ground when attacked in his own home or business, this error was not properly preserved for review by reason of the defendant\u2019s failure to comply with Rule 10(b)(2) of the Rules of Appellate Procedure. This Court further found upon review of the record pursuant to State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983), and State v. Walker, 316 N.C. 33, 340 S.E. 2d 80 (1986), that such error did not constitute \u201cplain error.\u201d Quoting from Walker, this Court said in Morgan:\n\u201cThe plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to \u2018plain error,\u2019 the appellate court must be convinced that absent the error the jury probably would have reached a different verdict. State v. Odom, 307 N.C. at 661, 300 S.E. 2d at 378-79. In other words, the appellate court must determine that the error in question \u2018tilted the scales\u2019 and caused the jury to reach its verdict convicting the defendant. State v. Black, 308 N.C. at 741, 303 S.E. 2d at 806-07. Therefore, the test for \u2018plain error\u2019 places a much heavier burden upon the defendant than that imposed by N.C.G.S. \u00a7 15A-1443 upon defendants who have preserved their rights by timely objection. This is so in part at least because the defendant could have prevented any error by making a timely objection. Cf. N.C.G.S. \u00a7 15A-1443(c) (defendant not prejudiced by error resulting from his own conduct).\u201d\nMorgan, 315 N.C. at 645, 340 S.E. 2d at 96 (quoting Walker, 316 N.C. at 39, 340 S.E. 2d at 83-84).\nIn the present case, a review of the whole record does not convince us that absent the error the jury probably would have reached a different verdict. Defendant, therefore, has not met his burden of showing \u201cplain error.\u201d\nThe decision of the Court of Appeals is affirmed.\nAffirmed.", "type": "majority", "author": "BROWNING, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by William N. Farrell, Jr., Special Deputy Attorney General, and G. Patrick Murphy, Assistant Attorney General, for the State.", "Epting & Hackney, by Robert Epting, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES CLIFFORD LILLEY\nNo. 22A86\n(Filed 7 October 1986)\nAssault and Battery \u00a7 15.7\u2014 felonious assault \u2014 self-defense\u2014no duty to retreat in own home \u2014 failure to instruct \u2014 no plain error\nIn a prosecution for assault with a deadly weapon inflicting serious injury, the trial court should have instructed the jury on the right of one attacked in his own home to act in self-defense without first retreating, but the court\u2019s failure to give such an instruction did not constitute \u201cplain error\u201d under the circumstances of this case.\nAppeal of right under N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the North Carolina Court of Appeals, 78 N.C. App. 100, 337 S.E. 2d 89 (1985) (Parker, J., with Hedrick, C.J., concurring and Becton, J., dissenting), finding no error in defendant\u2019s trial before Preston, J., at the 11 October 1984 session of ORANGE County Superior Court. Heard in the Supreme Court on 9 September 1986.\nLacy H. Thornburg, Attorney General, by William N. Farrell, Jr., Special Deputy Attorney General, and G. Patrick Murphy, Assistant Attorney General, for the State.\nEpting & Hackney, by Robert Epting, for defendant-appellant." }, "file_name": "0390-01", "first_page_order": 414, "last_page_order": 418 }