{ "id": 2481966, "name": "STATE OF NORTH CAROLINA v. JUDY ANN LAWS NORMAN", "name_abbreviation": "State v. Norman", "decision_date": "1989-04-05", "docket_number": "No. 161PA88", "first_page": "253", "last_page": "276", "citations": [ { "type": "official", "cite": "324 N.C. 253" } ], "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": "366 S.E. 2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": -1 }, { "cite": "89 N.C. App. 384", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522353 ], "year": 1988, "opinion_index": -1, "case_paths": [ "/nc-app/89/0384-01" ] }, { "cite": "24 Wayne L. Rev. 1705", "category": "journals:journal", "reporter": "Wayne L. Rev.", "year": 1978, "opinion_index": 0 }, { "cite": "36 Am. U.L. Rev. 11", "category": "journals:journal", "reporter": "Am. U. L. Rev.", "weight": 2, "year": 1986, "pin_cites": [ { "page": "44" } ], "opinion_index": 0 }, { "cite": "338 S.E. 2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717740 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0371-01" ] }, { "cite": "104 N.M. 247", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594973 ], "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "abused wife could claim self-defense where she walked into bedroom with gun and killed husband who was awake but lying on the bed" }, { "parenthetical": "abused wife could claim self-defense where she walked into bedroom with gun and killed husband who was awake but lying on the bed" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0247-01" ] }, { "cite": "539 A. 2d 810", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1987, "pin_cites": [ { "parenthetical": "abused wife who killed her sleeping husband not entitled to self-defense instruction as no immediate threat was posed by the decedent" } ], "opinion_index": 0 }, { "cite": "517 Pa. 630", "category": "reporters:state", "reporter": "Pa.", "year": 1987, "pin_cites": [ { "parenthetical": "abused wife who killed her sleeping husband not entitled to self-defense instruction as no immediate threat was posed by the decedent" } ], "opinion_index": 0 }, { "cite": "363 Pa. Super. 328", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 672580 ], "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "abused wife who killed her sleeping husband not entitled to self-defense instruction as no immediate threat was posed by the decedent" }, { "parenthetical": "abused wife who killed her sleeping husband not entitled to self-defense instruction as no immediate threat was posed by the decedent" } ], "opinion_index": 0, "case_paths": [ "/pa-super/363/0328-01" ] }, { "cite": "32 Hastings L.J. 895", "category": "journals:journal", "reporter": "Hastings L.J.", "year": 1981, "opinion_index": 0 }, { "cite": "39 Mercer L. Rev. 545", "category": "journals:journal", "reporter": "Mercer L. Rev.", "year": 1988, "opinion_index": 0 }, { "cite": "196 S.E. 2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559274 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0504-01" ] }, { "cite": "248 S.E. 2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554877 ], "year": 1978, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0529-01" ] }, { "cite": "301 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566406, 8566313, 8566377, 8566444, 8566350 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0700-04", "/nc/307/0700-01", "/nc/307/0700-03", "/nc/307/0700-05", "/nc/307/0700-02" ] }, { "cite": "298 S.E. 2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "408" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519662 ], "year": 1982, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0140-01" ] }, { "cite": "179 S.E. 427", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "pin_cites": [ { "page": "428" } ], "opinion_index": 0 }, { "cite": "208 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597028 ], "year": 1935, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/208/0127-01" ] }, { "cite": "257 S.E. 2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "298 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568697 ], "year": 1979, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0149-01" ] }, { "cite": "285 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570499 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0689-01" ] }, { "cite": "340 S.E. 2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1986, "pin_cites": [ { "page": "441" }, { "page": "442" }, { "page": "442", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "316 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693753 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "52" }, { "page": "53" }, { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0048-01" ] }, { "cite": "138 S.E. 8", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1927, "pin_cites": [ { "page": "10" }, { "page": "10" } ], "opinion_index": 0 }, { "cite": "193 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217899 ], "weight": 2, "year": 1927, "pin_cites": [ { "page": "718" }, { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/nc/193/0713-01" ] }, { "cite": "357 S.E. 2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "659" }, { "page": "660" } ], "opinion_index": 0 }, { "cite": "320 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726570 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "71" }, { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0064-01" ] }, { "cite": "366 S.E. 2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "591-592" }, { "page": "592" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 384", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522353 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "392-393" }, { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0384-01" ] }, { "cite": "372 S.E. 2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "537", "parenthetical": "the state must satisfy the jury beyond a reasonable doubt that, despite evidence of intoxication, defendant did form a deliberate and premeditated intent to kill" } ], "opinion_index": 1 }, { "cite": "323 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564377 ], "year": 1988, "pin_cites": [ { "page": "346", "parenthetical": "the state must satisfy the jury beyond a reasonable doubt that, despite evidence of intoxication, defendant did form a deliberate and premeditated intent to kill" } ], "opinion_index": 1, "case_paths": [ "/nc/323/0339-01" ] }, { "cite": "115 S.E. 59", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1922, "pin_cites": [ { "page": "61" } ], "opinion_index": 1 }, { "cite": "184 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272238 ], "year": 1922, "opinion_index": 1, "case_paths": [ "/nc/184/0747-01" ] }, { "cite": "15 Conn. L. Rev. 121", "category": "journals:journal", "reporter": "Conn. L. Rev.", "year": 1982, "pin_cites": [ { "page": "131" } ], "opinion_index": 1 }, { "cite": "244 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "cases setting out these elements as requisites of proof of self-defense" } ], "opinion_index": 1 }, { "cite": "295 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561834 ], "year": 1978, "pin_cites": [ { "parenthetical": "cases setting out these elements as requisites of proof of self-defense" } ], "opinion_index": 1, "case_paths": [ "/nc/295/0126-01" ] }, { "cite": "279 S.E. 2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "303 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574148 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc/303/0526-01" ] }, { "cite": "297 S.E. 2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "307 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561161 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/307/0152-01" ] }, { "cite": "305 S.E. 2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "309 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767552 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/nc/309/0141-01" ] }, { "cite": "324 S.E. 2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "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" } ], "opinion_index": 1 }, { "cite": "312 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753163 ], "year": 1985, "pin_cites": [ { "parenthetical": "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" } ], "opinion_index": 1, "case_paths": [ "/nc/312/0519-01" ] }, { "cite": "203 S.E. 2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "opinion_index": 1 }, { "cite": "285 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562638 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/nc/285/0158-01" ] }, { "cite": "254 S.E. 2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "610" } ], "opinion_index": 1 }, { "cite": "297 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568581 ], "year": 1979, "pin_cites": [ { "page": "256" } ], "opinion_index": 1, "case_paths": [ "/nc/297/0247-01" ] }, { "cite": "32 Hastings L.J. 895", "category": "journals:journal", "reporter": "Hastings L.J.", "year": 1981, "pin_cites": [ { "page": "928-29" } ], "opinion_index": 1 }, { "cite": "285 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "304 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570499 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/304/0689-01" ] }, { "cite": "340 S.E. 2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "442" } ], "opinion_index": 1 }, { "cite": "316 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693753 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "53" } ], "opinion_index": 1, "case_paths": [ "/nc/316/0048-01" ] }, { "cite": "357 S.E. 2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "659" } ], "opinion_index": 1 }, { "cite": "320 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726570 ], "year": 1987, "pin_cites": [ { "page": "71" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0064-01" ] } ], "analysis": { "cardinality": 1716, "char_count": 54996, "ocr_confidence": 0.838, "pagerank": { "raw": 3.3931745223108765e-07, "percentile": 0.8770397424714723 }, "sha256": "2a091def35b8fa64068f9cd791d179d9783a3efa4459796c894c7ecd2d6a47c3", "simhash": "1:a566f02b3caa0c69", "word_count": 9319 }, "last_updated": "2023-07-14T20:39:53.264050+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JUDY ANN LAWS NORMAN" ], "opinions": [ { "text": "MITCHELL, Justice.\nThe 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. The jury found the defendant guilty of voluntary manslaughter. The defendant appealed from the trial court\u2019s judgment sentencing her to six years imprisonment.\nThe Court of Appeals granted a new trial, citing as error the trial court\u2019s 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\u2019s evidence that she exhibited what has come to be called \u201cthe battered wife syndrome\u201d entitled her to have the jury consider whether the homicide was an act of perfect self-defense and, thus, not a legal wrong.\nWe 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.\nAt trial, the State presented the testimony of Deputy Sheriff R. H. Epley of the Rutherford County Sheriffs Department, who was called to the Norman residence on the night of 12 June 1985. Inside the home, Epley found the defendant\u2019s 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\u2019s body.\nLater 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\u2019s mother\u2019s house. The defendant took a pistol from her mother\u2019s purse and walked the short distance back to her home. She pointed the pistol at the back of her sleeping husband\u2019s head, but it jammed the first time she tried to shoot him. She fixed the gun and then shot her husband in the back of the head as he lay sleeping. After one shot, she felt her husband\u2019s 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 \u201cshe took all she was going to take from him so she shot him.\u201d\nThe defendant presented evidence tending to show a long history of physical and mental abuse by her husband due to his 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 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\u2019s assaults.\nThe defendant\u2019s 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 \u201cdog,\u201d \u201cbitch\u201d and \u201cwhore,\u201d and on a few occasions made her eat pet food out of the pets\u2019 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\u2019s husband threatened numerous times to kill her and to maim her in various ways.\nThe defendant said her husband\u2019s abuse occurred only when he was intoxicated, but that he would not give up drinking. She said she and her husband \u201cgot along very well when he was sober,\u201d and that he was \u201ca good guy\u201d 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.\nIn the early morning hours on the day before his death, the defendant\u2019s husband, who was intoxicated, went to a rest area off T85 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\u2019s mother got him out of jail at the defendant\u2019s request later that morning, he resumed his drinking and abuse of the defendant.\nThe defendant\u2019s 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, sheriffs 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 arrest her husband, and they left the scene.\nThe deputies were called back less than an hour later after the defendant had taken a bottle of pills. The defendant\u2019s husband cursed her and called her names as she was attended by paramedics, and he told them to let her die. A sheriffs deputy finally chased him back into his house as the defendant was put into an ambulance. The defendant\u2019s stomach was pumped at the local hospital, and she was sent home with her mother.\nWhile 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 testified that the defendant threatened a number of times that night to kill her husband and that she said she should kill him \u201cbecause of the things he had done to her.\u201d\nThe next day, the day she shot her husband, the defendant went to the mental health center to talk about charges and possible commitment, and she confronted her husband with that possibility. She testified that she told her husband later that day: \u201cJ. T., straighten up. Quit drinking. I\u2019m going to have you committed to help you.\u201d She said her husband then told her he would \u201csee them coming\u201d and would cut her throat before they got to him.\nThe 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.\nThat evening, the defendant and her husband went into their bedroom to lie down, and he called her a \u201cdog\u201d 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\u2019s husband agreed to let her baby-sit. After the defendant\u2019s husband fell asleep, the baby started crying and the defendant took it to her mother\u2019s house so it would not wake up her husband. She returned shortly with the pistol and killed her husband.\nThe 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: \u201cBecause 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\u2019t take it no more. There ain\u2019t no way, even if it means going to prison. It\u2019s better than living in that. That\u2019s worse hell than anything.\u201d\nThe 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: \u201cYes. I believed him; he would, he would kill me if he got a chance. If he thought he wouldn\u2019t a had to went to jail, he would a done it.\u201d\nTwo expert witnesses in forensic psychology 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.\nDr. Tyson, a psychologist, was asked his opinion as to whether, on 12 June 1985, \u201cit appeared reasonably necessary for Judy Norman to shoot J. T. Norman?\u201d He replied: \u201cI 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 . . . .\u201d Dr. Tyson later added: \u201cI 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 her family.\u201d\nDr. Rollins, who was the defendant\u2019s 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 \u201c[s]he saw herself as powerless to deal with the situation, that there was no alternative, no way she could escape it.\u201d Dr. Rollins was asked his opinion as to whether \u201con June 12th, 1985, it appeared reasonably necessary'that Judy Norman would take the life of J. T. Norman?\u201d Dr. Rollins replied that in his opinion, \u201cthat course of action did appear necessary to Mrs. Norman.\u201d\nBased 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 her, and that her .husband\u2019s 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 lawfully in perfect self-defense, even though he was asleep when she killed him. We disagree.\nThe 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).\nIn 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 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.\nOur 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 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.\nThe 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); State v. Dial, 38 N.C. App. 529, 531, 248 S.E. 2d 366, 367 (1978); 40 C.J.S. Homicide \u00a7 123(b) (1944).\nThe 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 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 \u2014 a notion we have specifically rejected \u2014the 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.\nThe killing of another human being is the most extreme recourse to our inherent right of self-preservation and can be justified in law only by the utmost real or apparent necessity brought about by the decedent. For that reason, our law of self-defense 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).\nThe term \u201cimminent,\u201d 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 \u201cimmediate 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.\u201d Black\u2019s Law Dictionary 676 (5th ed. 1979). Our cases have sometimes used the phrase \u201cabout to suffer\u201d interchangeably with \u201cimminent\u201d 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).\nThe 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 \u201cimminent\u201d 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\u2019s 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 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 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 asleepl\nFaced 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, 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\u2019s alleged rape of McDonald\u2019s girl friend, which had exacerbated existing animosity between Mize and McDonald. After hiding from McDonald for most of the day, Mize finally went to McDonald\u2019s 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\u2019s argument that his jury should have been instructed on self-defense, we stated:\nHere, 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\u2019s 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.\n316 N.C. at 53, 340 S.E. 2d at 442 (citations omitted). The same reasoning applies in the present case.\nAdditionally, the lack of any belief by the defendant \u2014 reasonable or otherwise \u2014 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 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 \u201cappeared reasonably necessary\u201d to the defendant 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 \u201cappeared reasonably necessary\u201d 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.\nDr. Tyson additionally testified that the defendant \u201cbelieved 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.\u201d Such evidence of the defendant\u2019s speculative beliefs concerning her remote and indefinite future, while indicating she had felt generally threatened, did not tend to show that she killed in the belief \u2014 reasonable or otherwise \u2014 that her husband presented a threat of imminent death or great bodily harm. Under our law of self-defense, a defendant\u2019s subjective belief of what might be \u201cinevitable\u201d at some indefinite point in the future does not equate to what she believes to be \u201cimminent.\u201d Dr. Tyson\u2019s opinion that the defendant believed it was necessary to kill her husband for \u201cthe protection of herself and her family\u201d was similarly indefinite and devoid of time frame and did not tend to show a threat or fear of imminent harm.\nThe defendant testified that, \u201cI 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.\u201d She also testified, when asked if she believed her husband\u2019s threats: \u201cYes. . . . [H]e would kill me if he got a chance. If he thought he wouldn\u2019t a had to went to jail, he would a done it.\u201d 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 \u2014 reasonable or otherwise \u2014of imminent death or great bodily harm at the time of the killing.\nWe 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\u2019s killing of him in perfect self-defense. The Court of Appeals concluded that to impose such requirements would ignore the \u201clearned helplessness,\u201d 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\u2019s 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, 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).\nThe reasoning of our Court of Appeals in this case proposes to change the established law of self-defense by giving the term \u201cimminent\u201d 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 \u2014which the imminence requirement ensures \u2014but 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.\nThe Court of Appeals suggests that such speculation would have been particularly reliable in the present case because the jury, based on the evidence of the decedent\u2019s intensified abuse during the thirty-six hours preceding his death, could have found that the decedent\u2019s passive state at the time of his death was \u201cbut 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.\u201d 89 N.C. App. at 394, 366 S.E. 2d at 592. Requiring jury instructions on perfect self-defense in such 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\u2019s 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 \u201creign of terror.\u201d It is far from clear in the defendant\u2019s poignant evidence that any abuse by the decedent had ever involved the degree of physical threat required to justify the defendant in 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).\nAs we have stated, stretching the law of self-defense to fit the facts of this case would require changing the \u201cimminent death or great bodily harm\u201d 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\u2019 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. See generally Rosen, The Excuse of Self-Defense: Correcting A Historical 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\u2019s 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 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 \u201cbattered woman\u2019s defense\u201d could be extended in principle to any type of case in which a defendant testified that he or she 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).\nIn 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\u2019s 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.\nFor the foregoing reasons, we conclude that the defendant\u2019s conviction for voluntary manslaughter and the trial court\u2019s 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.\nReversed.", "type": "majority", "author": "MITCHELL, Justice." }, { "text": "Justice Martin\ndissenting.\nAt the outset it is to be noted that the peril of fabricated evidence is not unique to the trials 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.\nLikewise, the difficulty of rebutting defendant\u2019s 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, 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. \u201cDefendant may always rest ultimately on the weakness of the state\u2019s case and the state\u2019s failure to carry its burden of proof.\u201d State v. Patterson, 297 N.C. 247, 256, 254 S.E. 2d 604, 610 (1979).\nAt the heart of the majority\u2019s reasoning is its unsubstantiated concern that to find that the evidence presented by defendant would support an instruction on self-defense would \u201cexpand our law of self-defense beyond the limits of immediacy and necessity.\u201d Defendant does not seek to expand or relax the requirements of self-defense and thereby \u201clegalize the opportune killing of allegedly abusive husbands by their wives,\u201d 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 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.\nIn 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\u2019s evidence are substantial 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.\nA 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:\n(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\n(2) defendant\u2019s 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\n(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\n(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.\nState v. Gappins, 320 N.C. 64, 71, 357 S.E. 2d 654, 659 (1987). 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 elements were supported by evidence at defendant\u2019s trial.\nEvidence 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 \u201cand exceeded]\u201d 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:\nMrs. Norman didn\u2019t 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 all social agencies that were available; that nobody could withstand his power. As a result, there was no such thing as escape.\nWhen asked if he had an opinion whether it appeared reasonably necessary for Judy Norman to shoot her husband, this witness responded:\nYes. ... 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\u2019t think was such an issue for her, as she had attempted to commit suicide, and in her continuing conviction of J. T. Norman\u2019s 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.\nThis testimony describes defendant\u2019s perception of circumstances in which she was held hostage to her husband\u2019s abuse for two decades and 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.\nIn addition to the testimony of the clinical psychologist, defendant presented the testimony of witnesses who had actually seen defendant\u2019s 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\u2019s isolation and helplessness were evident in testimony that her family was intimidated by her husband into acquiescing in his torture of her. Witnesses also described defendant\u2019s 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\u2019s 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 of her humanity and is held hostage by fear.\nIn State v. Mize, 316 N.C. 48, 53, 340 S.E. 2d 439, 442 (1986), this Court noted that if the defendant was in \u201cno imminent danger\u201d 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 \u201cimminent\u201d must be informed by the defendant\u2019s 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 \u201cordinary firmness\u201d with regard to whether the defendant\u2019s perception of impending death or injury was so pressing as to render reasonable her belief that it was necessary to kill.\nEvidence 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\u2019s belief in the imminence of serious harm from that asserted by the defendant in Mize. Psychologists have observed and commentators have described a \u201cconstant state of fear\u201d brought on by the cyclical nature of battering as well as the battered spouse\u2019s perception that her abuser is both \u201comnipotent and unstoppable.\u201d 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. \u201c[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 of the battered wife, the danger is constantly \u2018immediate.\u2019 \u201d Eber, The Battered Wife\u2019s Dilemma: 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, \u201cimminent\u201d is a term the meaning of which must be grasped from the defendant\u2019s point of view. Properly stated, the second prong of the question is not whether the threat was in fact imminent, but whether defendant\u2019s 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.\nDefendant\u2019s 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\u2019s life. This testimony could have led a juror to conclude that defendant reasonably perceived a threat to her life as \u201cimminent,\u201d even while her husband slept. Over these three days, her husband\u2019s anger was exhibited in an unprecedented crescendo of violence. The evidence showed defendant\u2019s 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\u2019s death.\nDefendant testified that on 10 June, two days before her husband\u2019s 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\u2019s 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\u2019s husband for driving under the influence. He spent the night in jail and was released the next morning on bond paid by defendant\u2019s mother.\nDefendant testified that her husband was argumentative and abusive all through the next day, 11 June. Mark Navarra testified that at one point defendant\u2019s 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\u2019s 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\u2019s husband seize defendant\u2019s cigarette and put it out on her neck, the scars from which defendant displayed to the jury.\nA police officer testified that he arrived at defendant\u2019s 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 return because defendant had taken an overdose of pills. The officer testified that defendant\u2019s husband was interfering with ambulance attendants, saying \u201cLet the bitch die.\u201d When he refused to respond to the officer\u2019s warning that if he continued to hinder the attendants, he would be arrested, the officer was compelled to chase him into the house.\nDefendant\u2019s 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, \u201cNow, you\u2019re going to pay for taking those pills,\u201d and \u201cI\u2019ll kill you, your mother and your grandmother.\u201d His rage was such that defendant\u2019s mother feared he might kill the whole family, and knowing defendant\u2019s sister had a gun in her purse, she took the gun and placed it in her own.\nDefendant was taken to the hospital, treated, and released at 2:30 a.m. She spent the remainder of the night at her grandmother\u2019s house. Defendant testified that the next day, 12 June, she felt dazed all day long. She went in the morning to the county mental health center for guidance on domestic abuse. When she returned home, she tried to talk to her husband, telling him to \u201cstraighten up. Quit drinking. . . . I\u2019m going to have you committed to help you.\u201d Her husband responded, \u201cIf you do, I\u2019ll see them coming and before they get here, I\u2019ll cut your throat.\u201d\nLater, her husband made her drive him and his friend to Spartanburg to pick up the friend\u2019s paycheck. On the way, the friend testified, defendant\u2019s husband \u201cstarted slapping on her\u201d 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\u2019s head. At one point defendant\u2019s husband lay down on the front seat with his head on the arm rest, \u201clike he was going to go to sleep,\u201d and kicked defendant, who was still driving, in the side of the head.\nMark Navarra testified that in the year and a half he had lived with the Normans, he had never seen defendant\u2019s husband madder than he was on 12 June, opining that it was the DUI arrest two days before that had ignited J. T.\u2019s fury. Phyllis testified that her father had beaten her mother \u201call day long.\u201d She testified that this was the third day defendant\u2019s husband had forbidden her to eat any food. Phyllis said defendant\u2019s family tried to get her to eat, but defendant, fearing a beating, would not. Although Phyllis\u2019s grandmother had sent over a bag of groceries that day, defendant\u2019s husband had made defendant put them back in the bag and would not let anyone eat them.\nEarly in the evening of 12 June, defendant\u2019s husband told defendant, \u201cLet\u2019s go to bed.\u201d 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, \u201cDogs don\u2019t lay in the bed. They lay in the floor.\u201d 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 \u201csnuck up and took him out there to [her] mother\u2019s [house].\u201d She asked her mother to watch the baby, then asked if her mother had anything for headache, as her head was \u201cbusting.\u201d Her mother responded that she had some pain pills in her purse. Defendant went in to get the pills, \u201cand the gun was in there, and I don\u2019t know, I just seen the gun, and I took it out, and I went back there and shot him.\u201d\nFrom 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\u2019s 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\u2019s belief in the necessity to kill her husband not merely reasonable but compelling.\nThe 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\u2019s earlier perception of imminent danger no longer appears reasonable and the defendant becomes the aggressor. For example, in Mize, the defendant, who had been told the day before that the decedent was \u201cout to get\u201d him, went to the decedent\u2019s 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, knocked again, and shot the decedent. When the defendant went with his shotgun to the decedent\u2019s 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.\nWhere 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 \u201cthe affray,\u201d 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 defendant\u2019s 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.\nFinally, 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\u2019s immobilization by fear caused by abuse by her husband. Three witnesses, including the decedent\u2019s 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\u2019s 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.\nIn State v. Wingler, 184 N.C. 747, 115 S.E. 59 (1922), 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: \u201cThe supreme tragedy of life is the immolation of woman. With a heavy hand, nature exacts from her a high tax of blood and tears.\u201d 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\u2019s 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.\nIt 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 premeditated intent 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.\n. This interpretation of the meaning of \u201cimminent\u201d is reflected in the Comments to the Model Penal Code: \u201cThe 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 ap prehend that it will be immediately used.\u201d Model Penal Code \u00a7 3.04 comment (ALI 1985).", "type": "dissent", "author": "Justice Martin" } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JUDY ANN LAWS NORMAN\nNo. 161PA88\n(Filed 5 April 1989)\nHomicide \u00a7 28.1\u2014 self-defense \u2014sleeping victim \u2014 battered spouse syndrome\nThe 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\u2019s head, cleared a jam, shot her husband in the back of the head as he still lay sleeping, felt her husband\u2019s 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 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.\nJustice Martin dissenting.\nOn 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. Heard in the Supreme Court on 16 November 1988.\nLacy H. Thornburg, Attorney General, by Steven F. Bryant, Assistant Attorney General, and Jeffrey P. Gray, Assistant Attorney General, for the appellant State.\nRobert W. Wolf and Robert L. Harris for the defendant appellee." }, "file_name": "0253-01", "first_page_order": 291, "last_page_order": 314 }