State v. Harvey , 372 N.C. 304 ( 2019 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 290A18
Filed 14 June 2019
STATE OF NORTH CAROLINA
v.
ALPHONZO HARVEY
Appeal pursuant to N.C.G.S. § 7A-30(2) from the unpublished decision of a
divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 500 (2018),
finding no error after appeal from a judgment entered on 24 May 2017 by Judge
Milton F. Fitch, Jr. in Superior Court, Edgecombe County. Heard in the Supreme
Court on 4 March 2019.
Joshua H. Stein, Attorney General, by Thomas O. Lawton III, Assistant
Attorney General, for the State.
Jeffrey William Gillette for defendant-appellant.
MORGAN, Justice.
Defendant Alphonzo1 Harvey was charged upon a proper indictment and
convicted by a jury of second-degree murder, a criminal offense in violation of
N.C.G.S. § 14-17. Defendant contended on appeal that the trial court committed error
by failing to instruct the jury on the affirmative defense of self-defense pursuant to
1 Defendant’s first name is spelled “Alphonso” in the trial transcript. For purposes
of continuity and to avoid confusion, this opinion retains the spelling of defendant’s name
as shown in the Court of Appeals opinion and the record on appeal.
STATE V. HARVEY
Opinion of the Court
his request. The Court of Appeals disagreed and upheld defendant’s conviction,
finding that in light of the evidence, defendant was not entitled to a jury instruction
on any theory of self-defense. We affirm the determination of the Court of Appeals.
Factual and Procedural Background
On 11 April 2016, defendant was indicted by a grand jury for the criminal
offense of first-degree murder in connection with the stabbing death of Tobias Toler.
Defendant pleaded not guilty and the State elected to refrain from proceeding
capitally. A jury trial was held beginning on 22 May 2017 before the Honorable
Milton F. Fitch, Jr. in Superior Court, Edgecombe County, during which the State
presented evidence from ten witnesses and defendant testified on his own behalf.
The evidence presented at trial tended to show the following: On 11 August
2015, Toler and four of defendant’s friends attended a party at defendant’s mobile
home. At the party, the attendees were drinking alcohol, listening to music, and
dancing. At some point, Toler was dancing with a woman with whom defendant had
previously engaged in a romantic or sexual relationship. Toler had been drinking a
beer with a high alcohol content from a plastic bottle, and he began staggering “all
over [the] house” and acting in a rowdy manner by “getting real loud and . . . cussing
and fussing.” Defendant, who had consumed at least one beer by this time, realized
Toler was intoxicated and testified that he “asked him to leave about seven, eight
times.” Toler, however, refused to depart until defendant left the dwelling as well.
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STATE V. HARVEY
Opinion of the Court
Defendant testified that, as he exited the trailer, Toler followed and stated that “he
ought to whip [defendant’s] damn ass.” Toler threw the plastic beer bottle from which
he had been drinking in defendant’s direction, but the bottle did not make contact
with defendant.
Defendant started to go back inside his mobile home but, upon realizing that
Toler had not yet left the premises, turned back to confront Toler, asking, “[D]idn’t I
tell you [to] leave my damn house[?]” Defendant testified that, in response, Toler
found “a piece of broke [sic] off little brick” and threw it at defendant, cutting
defendant’s finger. Toler then reached into his pocket and produced a small, black
pocketknife, telling defendant that “he ought to kill [defendant’s] damn ass with it.”2
Defendant once again ordered Toler to leave his property, at which point defendant
testified that after Toler hit him, he “hit [Toler] in the face.”
Defendant then went back inside his mobile home and grabbed a knife from
the top of a cabinet.3 Defendant testified that his purpose for returning to the trailer
to obtain the knife was “[b]ecause I was scared [Toler] was going to try and hurt me,”
and that it was defendant’s belief that once he got the knife, Toler would “leave, go
ahead on and leave.” When defendant returned outside, he approached Toler while
2Defendant referred to the pocketknife in his testimony as a “little bitty, black
pocketknife about two fingers long.”
3 Witnesses testified that the knife resembled “an iron pipe with a blade on the end of
it.”
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Opinion of the Court
displaying the knife and swinging it in Toler’s direction. When questioned at trial
regarding his use of the knife, defendant testified that he “tried to make [Toler]
leave.” During the confrontation, Toler attempted to move defendant’s motorized
scooter which was resting against the side of the mobile home. In the process, the
scooter fell to the ground, breaking its headlights.4 Toler also slipped to the ground,
but immediately returned to his feet. Defendant then approached Toler and “ma[d]e
a stabbing motion about three times,” piercing Toler once in the chest and puncturing
his heart.
Following the stabbing, Toler attempted to run away but collapsed in a nearby
resident’s yard. When asked on direct examination about Toler’s departure from
defendant’s mobile home property, defendant stated that “[a]fter the accident
happened to him, he left, he ran out of the yard then.” Defendant further testified
that he believed that Toler “just got scared and ran,” and he thought that Toler had
collapsed because he was drunk. Defendant did not approach Toler after he left
defendant’s property; instead, defendant walked back inside the mobile home, pulled
out a tissue, and cleaned Toler’s blood from the blade of the knife. Defendant then
placed the knife back on top of the cabinet from where defendant had initially
4 Defendant did not request an instruction based on the “castle doctrine” as set forth
in N.C.G.S. §§ 14-51.2(b) or 14-51.3(a)(1). Defendant’s counsel, to the contrary, expressly
stated to the trial court that such an instruction was not warranted under the circumstances
of this case. Therefore, the applicability of the castle doctrine is not before us.
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Opinion of the Court
obtained it, walked outside, and proceeded to burn the bloody tissue that he had used
to clean the knife.
Defendant had given notice of his intent to assert defenses that included self-
defense, and during the charge conference he requested a self-defense instruction
along with an instruction on voluntary manslaughter. The trial court declined to
deliver both of these requested instructions and instructed the jury to consider only
whether defendant was guilty of first-degree murder, the lesser-included offense of
second-degree murder, or not guilty. Accordingly, no form of a self-defense
instruction was given to the jury by the trial court. On 24 May 2017, the jury
convicted defendant of second-degree murder for the stabbing of Toler. The trial court
thereupon sentenced defendant to a term of 483 to 592 months of imprisonment.
Upon defendant’s appeal, the Court of Appeals concluded that defendant was
not entitled to a self-defense instruction because the evidence at trial did not establish
that defendant believed that it was necessary to kill Toler in order to protect himself
from death or great bodily harm. As a result, the Court of Appeals majority found no
error in defendant’s trial. The dissenting judge on the Court of Appeals panel
expressed the opinion that the trial court should have delivered a self-defense
instruction and that its failure to do so prejudiced defendant. We agree with the
lower appellate court, as this Court finds the Court of Appeals’ application of the
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Opinion of the Court
pertinent law to be sound and correct. Consequently, we shall weave some of its
analysis into our own.
Analysis
“The concept of self-defense emerged in the law as a recognition of a ‘primary
impulse’ that is an ‘inherent right’ of all human beings.” State v. Moore, 363 N.C.
793, 796, 688 S.E.2d 447, 449 (2010) (quoting State v. Holland, 193 N.C. 713, 718,
138 S.E. 8, 10 (1927)). The principles of the two types of self-defense—perfect and
imperfect—“are well established.” State v. Reid, 335 N.C. 647, 670, 440 S.E.2d 776,
789 (1994). A defendant is entitled to an instruction on perfect self-defense as an
excuse for a killing when the evidence presented at trial tends to show that, at the
time of the killing:
(1) it appeared to defendant and he believed it to
be necessary to kill the deceased in order to save himself
from death or great bodily harm; and
(2) defendant’s belief was reasonable in that the
circumstances as they appeared to him at the time were
sufficient to create such a belief in the mind of a person of
ordinary firmness; and
(3) defendant was not the aggressor in bringing
on the affray, i.e., he did not aggressively and willingly
enter into the fight without legal excuse or provocation;
and
(4) defendant did not use excessive force, i.e., did
not use more force than was necessary or reasonably
appeared to him to be necessary under the circumstances
to protect himself from death or great bodily harm.
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STATE V. HARVEY
Opinion of the Court
State v. Bush, 307 N.C. 152, 158-59, 297 S.E.2d 563, 568 (1982) (quoting State v.
Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981) (italics omitted)), habeas
corpus granted sub nom. Bush v. Stephenson, 669 F. Supp. 1322 (E.D.N.C. 1986), aff’d
per curiam, 826 F.2d 1059 (4th Cir. 1987) (unpublished); see also State v. Watson, 338
N.C. 168, 179-80, 449 S.E.2d 694, 701 (1994) (quoting State v. McAvoy, 331 N.C. 583,
417 S.E.2d 489 (1992)), cert. denied, 514 U.S. 1071 (1995), disavowed in part in State
v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995). The doctrine of imperfect self-
defense applies when the evidence supports a determination that only the first two
elements in the preceding quotation existed at the time of the killing, in which case
the defendant would be guilty of the lesser included offense of voluntary
manslaughter. State v. Locklear, 349 N.C. 118, 154-55, 505 S.E.2d 277, 298 (1998),
cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999). Therefore, for a defendant to
establish entitlement to an instruction on perfect or imperfect self-defense,
two questions must be answered in the affirmative: (1) Is
there evidence that the defendant in fact formed a belief
that it was necessary to kill his adversary in order to
protect himself from death or great bodily harm, and (2) if
so, was that belief reasonable? If both queries are answered
in the affirmative, then an instruction on self-defense must
be given. If, however, the evidence requires a negative
response to either question, a self-defense instruction
should not be given.
Moore, 363 N.C. at 796, 688 S.E.2d at 449 (quoting Bush, 307 N.C. at 160-61, 297
S.E.2d at 569). That is, when “there is no evidence from which a jury could reasonably
find that defendant, in fact, believed it to be necessary to kill his adversary to protect
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Opinion of the Court
himself from death or great bodily harm, defendant is not entitled to have the jury
instructed on self-defense.” Reid, 335 N.C. at 671, 440 S.E.2d at 789 (citing Bush,
307 N.C. at 161, 297 S.E.2d at 569).
Defendant contends in the case sub judice that the trial court erred by refusing
to instruct the jury on self-defense. Defendant argues that the evidence presented at
trial—namely, Toler’s (1) aggressiveness, (2) verbal and physical threats against
defendant, and (3) attack on defendant with a brick fragment, a beer bottle, and a
pocketknife—entitled defendant to instructions on perfect and imperfect self-defense
because he possessed reasonable fear of death or great bodily harm such that a jury
“could have found . . . that, at the time he administered the fatal wound with his
knife, he believed it was necessary to kill or seriously injure Toler in order to save
himself.” This argument is unpersuasive.
The evidence, taken in the light most favorable to defendant, fails to manifest
any circumstances existing at the time defendant stabbed Toler which would have
justified an instruction on either perfect or imperfect self-defense. Despite his
extensive testimony recounting the entire transaction of events from his own
perspective, defendant never represented that Toler’s actions in the moments
preceding the killing had placed defendant in fear of death or great bodily harm such
that defendant reasonably believed that it was necessary to fatally stab Toler in order
to protect himself. On the other hand, defendant’s own testimony undermines his
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Opinion of the Court
argument that any self-defense instruction was warranted because, as the Court of
Appeals majority correctly noted in its opinion, this Court’s previous determinations
have clear and direct applicability to defendant’s contentions so as to eliminate his
eligibility for his requested jury charge language.
The lower appellate court cited: (1) our decision in State v. Blankenship, 320
N.C. 152, 155, 357 S.E.2d 357, 359 (1987), for the principle that “a defendant cannot
benefit from a self-defense instruction where he claims that the killing was
accidental”, Harvey, ___ N.C. App. ___, 817 S.E.2d 500, 2018 WL 3734234, at *3 (2018)
(unpublished); (2) our determination in State v. Lyons, 340 N.C. 646, 459 S.E.2d 770
(1995), for the premise that “defendant’s self-serving statement that he was ‘scared’
is not evidence that defendant formed a belief that it was necessary to kill in order to
save himself”, id. at *4 (quoting Lyons, 340 N.C. at 662, 459 S.E.2d at 779); and (3)
our declaration in State v. Williams, 342 N.C. 869, 873, 467 S.E.2d 392, 394 (1996),
for the point that a self-defense instruction is not required where defendant fired his
pistol in order to get the murder victim and others to retreat, id. at *3. After viewing
this Court’s rulings in these cases as controlling, the Court of Appeals majority vividly
demonstrated defendant’s lack of entitlement to a self-defense instruction by quoting
from an extensive passage of defendant’s testimony elicited on his direct examination
during which defendant twice expressly referred to his act of stabbing Toler as “the
accident,” explicitly stated that his purpose in going back in the trailer and picking
up that knife was “[b]ecause I was scared he [Toler] was going to try and hurt me,”
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Opinion of the Court
and definitively represented that what he sought to do with the knife was “to make
him [Toler] leave.” Id. at *4.
We agree with the Court of Appeals’ view of defendant’s testimony at trial
regarding this issue:
[Defendant’s] testimony fails to satisfy the
requirements for an instruction on self-defense because it
does not establish that (1) Defendant was actually being
attacked by Toler such that he actually feared great bodily
harm or death as a result of Toler’s actions; and (2) he
inflicted the fatal blow to Toler in attempt to protect
himself from such harm . . . Defendant never clearly
testified that he feared he was in such danger as a result of
Toler’s actions with the pocketknife in the moments
preceding the stabbing. Nor did he ever testify as to facts
demonstrating that such a fear would have been
reasonable—i.e., that Toler lunged at him with the
pocketknife, that Toler made any stabbing motions with
the pocketknife, or that the pocketknife was even pointed
in Defendant’s direction. . . .
Defendant’s testimony also fails to demonstrate that
his fear of such harm caused him to inflict that fatal blow
to Toler’s chest. Indeed, Defendant’s failure to expressly
admit to stabbing Toler with his knife further undercuts
his ability to argue that the stabbing was committed as an
act of self-defense.
Id. at *6. Defendant’s own depictions of his act of killing Toler as an accident, his
decision to obtain the knife due to being motivated by fear, and his intention to use
the knife in order to persuade Toler to leave defendant’s residential premises all
operate to clearly invoke the application of our holdings in Blankenship, Lyons, and
Williams so as to establish that it was not appropriate for defendant in the present
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Opinion of the Court
case to receive the benefit of an instruction on self-defense.
In assessing defendant’s contention that the trial court erred in failing to grant
his request to instruct the jury on the affirmative defense of self-defense, and in
evaluating the applicability of the principles of perfect and imperfect self-defense to
the facts of the instant case in light of the relevant case law, we agree with the Court
of Appeals’ determination that the requirements for a jury instruction on self-defense
do not exist in this case. Under Bush, defendant is not entitled to an instruction on
perfect self-defense, and in light of Locklear, defendant is not eligible for an
instruction on imperfect self-defense. Defendant has failed to satisfy the threshold
requirements of Moore and Reid, both of which required defendant to present
evidence that he formed a reasonable belief that it was necessary for him to fatally
stab Toler in order for defendant to protect himself from death or great bodily harm,
because there is no evidence from which a jury could reasonably make such a finding
so as to entitle defendant to have the jury to be instructed on self-defense.
Conclusion
We conclude that the trial court did not err in declining defendant’s request to
instruct the jury on either the affirmative defense of perfect self-defense or imperfect
self-defense. Defendant received a fair trial, free from error. Accordingly, this Court
affirms the decision of the Court of Appeals.
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Opinion of the Court
AFFIRMED.
Justice DAVIS did not participate in the consideration or decision of this case.
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Justice EARLS dissenting.
Tobias Toler was thirty-six years old when he was stabbed in the heart on 11
August 2015 and died moments later in Sharpsburg, North Carolina. His blood
alcohol content at the time of his death was 0.34 and a pocketknife was found on his
person. Defendant Alphonzo Harvey admitted stabbing Mr. Toler, and the only
question for the jury in this case was whether the killing was justified. I dissent
because I believe the trial court and this Court are making the judgment call that
should be made by the jury, the twelve men and women of Edgecombe County who
heard the evidence and saw the witnesses testify at trial. In so doing, the Court
ignores controlling precedent and applies inconsistent standards to weigh the
evidence.
This Court recently reaffirmed long-standing doctrine that:
“The jury charge is one of the most critical parts of a
criminal trial.” State v. Walston, 367 N.C. 721, 730, 766
S.E.2d 312, 318 (2014). “[W]here competent evidence of
self-defense is presented at trial, the defendant is entitled
to an instruction on this defense, as it is a substantial and
essential feature of the case . . . .” State v. Morgan, 315
N.C. 626, 643, 340 S.E.2d 84, 95 (1986) (citations and
emphasis omitted); see State v. Guss, 254 N.C. 349, 351,
118 S.E.2d 906, 907 (1961) (per curiam) (“The jury must
not only consider the case in accordance with the State’s
theory but also in accordance with defendant’s
explanation.”).
State v. Lee, 370 N.C. 671, 674, 811 S.E.2d 563, 565-66 (2018) (alterations in original).
STATE V. HARVEY
Earls, J., dissenting
To determine whether Mr. Harvey was entitled to an instruction on self-
defense, the evidence must be viewed in the light most favorable to him. State v.
Moore, 363 N.C. 793, 796, 688 S.E.2d 447, 449 (2010). “An affirmative defense is one
in which the defendant says, ‘I did the act charged in the indictment, but I should not
be found guilty of the crime charged because * * * .’ ” State v. Caddell, 287 N.C. 266,
289, 215 S.E.2d 348, 363 (1975) (citations omitted). Defendant here admitted to
killing the victim; the trial judge was required to consider the evidence in the light
most favorable to defendant and to ignore any inconsistent evidence in deciding
whether to submit the requested self-defense or imperfect self-defense instructions.
It was then the jury’s job to determine defendant’s guilt or innocence. By refusing to
instruct the jury on self-defense when evidence supporting the instruction was
present, the judge usurped the role of the jury and all but guaranteed a guilty verdict.
Rather than consider the evidence in the light most favorable to defendant, the
Court here imposes a “magic words” requirement in favor of the State. In essence,
the majority holds that by failing to testify using the magic words, “I was in fear of
my life and believed I needed to kill Toby to save myself from death or great bodily
harm,” the defendant has failed to allege self-defense and, equally damning, by using
the magic word “accident” in passing during his testimony to refer to the incident,
defendant has foreclosed any consideration by the jury of whether he acted in self-
defense. Our case law imposes no such magic word requirement or trap for
defendants. Instead, the trial court must consider the defendant’s evidence as true,
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Earls, J., dissenting
including other testimony and evidence received at trial which tends to support it,
and disregard any contradictory evidence when determining whether the jury should
be instructed on self-defense. Moore, 363 N.C. at 796-98, 688 S.E.2d at 449-50.
The majority recounts some of defendant’s evidence concerning self-defense
and then finds it “unpersuasive.” The question for the Court is not whether the
evidence is persuasive, but whether it establishes the elements of self-defense or
imperfect self-defense. With regard to the first two elements of self-defense, whether
it appeared to defendant that it was necessary to kill Toler in order to protect himself
from death or great bodily harm and whether that belief was reasonable, the evidence
is as follows: Alphonzo Harvey repeatedly asked Toby Toler to leave his house after
Toler had been drinking, was argumentative, and used foul language in front of
Harvey and his female guests. Toler was “staggering all over my [Harvey’s] house”
and Harvey asked him seven or eight times to leave. Toler refused to do so.
Finally, Harvey walked out and Toler followed him. Toler then “said he ought
to whip my [Harvey’s] damn ass.” Other witnesses described how Toler said to
Harvey, “I will fuck you up.” Toler threw a bottle of beer at Harvey.1 Toler also threw
a brick at Harvey, which Harvey testified hit his finger when he raised his hand.
Witnesses said the brick hit the wall of Harvey’s house with a loud thud. Toler hit
1The majority describes this as a plastic beer bottle, but only one witness of several
who testified to this actually said that it was plastic; other testimony indicated the bottle was
glass.
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Earls, J., dissenting
Harvey; Harvey hit him back, and Toler knocked over Harvey’s scooter, breaking the
headlights.
Toler then pulled out a pocketknife and threatened Harvey with it: according
to Harvey, “He told me he ought to kill my damn ass with it.” Harvey testified that
at this point, “I thought he was going to try and hurt me so.” When asked why,
Harvey responded, “Because he had a pocketknife.” Harvey testified that he then
went back into his trailer and got a knife that was mounted on the end of a wooden
rod “because I was scared he [Toler] was going to try and hurt me.” Harvey explained
that he was just holding his knife in his hand:
Q. Were you just holding it or were you –
A. I didn’t do nothing. Just holding it in my
hand. I didn’t do nothing.
Q. At any point did you go and use your knife to
physically remove him?
A. No, he came up on me, coming up on me. He
was walking up on me with his knife. That’s when I had
my knife.
....
Q. And at what point did you hit him with your
knife?
A. I didn’t, I just hit – he –
THE COURT: Did what?
....
A. I said hit him right there.
Q. After you hit him right there with it, what did
he do?
A. He ran to the road.
Later Harvey explained that, after returning the knife to his trailer, he left the scene
because “I was scared somebody might come up and try to hurt me.” Taken in the
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Earls, J., dissenting
light most favorable to the State, Harvey left the scene and went to a neighbor’s house
because he knew he had done something wrong. Taken in the light most favorable to
defendant, Harvey left because he truly was afraid of Toler, and his contemporaneous
action confirms that his testimony that he was scared is not simply a self-serving
fabrication after the fact.
Harvey further testified that he was scared and uncertain as to what Toler
would do to him, partly because he knew Toler to carry a knife at all times.
“[E]vidence of prior violent acts by the victim or of the victim’s reputation for violence
may, under certain circumstances, be admissible to prove that a defendant had a
reasonable apprehension of fear of the victim.” State v. Strickland, 346 N.C. 443, 459,
488 S.E.2d 194, 203 (1997) (citation omitted), cert denied, 522 U.S. 1078 (1998); see
also State v. Irabor, ___ N.C. App. ___, ___, 822 S.E.2d 421, 424 (2018) (“Defendant’s
knowledge of [the victim]’s violent propensities, being armed, and prior acts supports
the trial court’s finding that defendant reasonably believed it was necessary to use
deadly force to save himself from death or great bodily harm.” (emphasis added)).
Based on defendant’s testimony and all the circumstances, the evidence was
“sufficient that defendant ha[d] a reasonable apprehension that an assault on him
with deadly force [wa]s imminent.” State v. Spaulding, 298 N.C. 149, 157, 257 S.E.2d
391, 396 (1979) (citations omitted).
On some key points, the majority ignores Harvey’s testimony and credits
contradictory testimony. For example, on the question of whether Toler was
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Earls, J., dissenting
approaching Harvey with his knife in his hand when Harvey stabbed him, or whether
Harvey approached Toler, the majority assumes the facts most favorable to the State.
Despite Harvey’s repeated testimony that he was scared of Toler, was afraid he would
be hurt, and was being threatened with a knife by Toler, who was drunk and had just
said he ought to kill him, the majority finds that the evidence “fails to manifest any
circumstances existing at the time defendant stabbed Toler which would have
justified an instruction on either perfect or imperfect self-defense.” This is contrary
to our precedents presenting very similar facts in which this Court has held that a
self-defense or imperfect self-defense instruction is required.
For example, in Spaulding the defendant stabbed and killed another inmate
who was advancing on him with his hand in his pocket, and this Court found it was
error to refuse to instruct the jury on self-defense. 298 N.C. at 156-57, 257 S.E.2d at
396. In that case the reasonableness of the defendant’s belief that he was in
imminent danger of great bodily harm or death “was a question for the jury.” Id. at
157, 257 S.E.2d at 396. Similarly, in State v. Webster the defendant shot and killed
an unarmed man who previously had been in the defendant’s trailer, was asked to
leave, and had left. 324 N.C. 385, 389, 378 S.E.2d 748, 751 (1989). Sometime later,
the victim returned and was standing on the steps of the trailer when the defendant
shot him. Id. at 389, 378 S.E.2d at 751. The defendant testified: “I was afraid in my
condition. I could not fight him and that was the only thing I could do.” Id. at 389,
378 S.E.2d at 751. That was sufficient evidence to submit a self-defense instruction
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to the jury, and the trial court’s refusal to allow the defendant in that case to state
whether he believed his life was threatened was reversible error. Id. at 393, 378
S.E.2d at 753. In relevant portions, the facts in Spaulding and Webster are similar
to the facts in this case, and defendant here is entitled to a self-defense instruction,
as were those defendants.
Even more relevant is State v. Buck, in which the Court instructed that “we
reiterate that it is important for the trial court to include the possible verdict of not
guilty by reason of self-defense in its final mandate to the jury.” 310 N.C. 602, 607,
313 S.E.2d 550, 553 (1984). There the defendant’s account of the incident was that
the victim had an open pocketknife in his hand and came into the kitchen where the
defendant was standing. Id. at 603, 313 S.E.2d at 551. The victim acted abusively
and threatened to kill a third person. Id. at 603, 313 S.E.2d at 551. When the victim
went towards the defendant while brandishing the open pocketknife, the defendant,
hoping to scare the victim, grabbed a butcher knife and the two men struggled and
fell to the floor, causing the butcher knife to lodge in the victim’s chest. Id. at 603,
313 S.E.2d at 551. The defendant pulled the butcher knife out and tossed it aside,
and the two kept fighting for a period of time until the victim dropped the pocketknife,
got up, and walked out of the apartment. Id. at 603-04, 313 S.E.2d at 551-52. The
victim died later that day. Id. at 604, 313 S.E.2d at 552. In that case the Court had
no difficulty observing that, based on the defendant’s evidence, “[i]f, however, the jury
should conclude that he intentionally wielded the knife, then it should acquit him on
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the grounds of self-defense.” Id. at 606, 313 S.E.2d at 553. There is nothing about
the material facts of Buck to distinguish it from this case.
Part of the majority’s concern here appears to be that Harvey did not say, “I
was afraid for my life and believed I had to kill my attacker.” But, as the transcript
reveals, defendant was inarticulate. Defendant testified he only completed the ninth
or tenth grade. In addition to his limited education, defendant had sustained a severe
head injury in a car accident in 2008, which required insertion of a metal plate in his
head. As a result of the head injury, defendant was permanently disabled and
suffered memory loss. The injury also affected defendant’s ability to talk and
function. Inarticulate and less well coached defendants should be treated equally
with those who can easily learn the “magic words” the majority would require for a
self-defense instruction. The question is whether there is evidence of self-defense or
imperfect self-defense, when taken in the light most favorable to defendant. See State
v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974) (“Where there is evidence
that defendant acted in self-defense, the court must charge on this aspect even though
there is contradictory evidence by the State or discrepancies in defendant’s evidence.”
(citations omitted))
The cases cited by the majority for the proposition that when the defendant
claims the killing is accidental, or that a weapon was used solely to get the victim and
others to retreat, do not apply here because Harvey clearly stated that he feared Toler
was trying to hurt him and that he used his knife when Toler “came up on” him with
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STATE V. HARVEY
Earls, J., dissenting
a pocketknife. Specifically, State v. Williams, 342 N.C. 869, 467 S.E.2d 392 (1996),
involved a defendant who testified that he fired his weapon in the air to scare those
who made him feel threatened and did not shoot at anyone; State v. Lyons, 340 N.C.
646, 459 S.E.2d 770 (1995), involved a defendant who testified that he fired a warning
shot at the top of his door because he believed he was being robbed and that he was
not trying to hit anyone; and State v. Blankenship, 320 N.C. 152, 357 S.E.2d 357
(1987), involved a defendant who testified that during a physical fight, he pulled out
his gun to hit the victim on the head with it, after which the victim grabbed the gun
by the barrel and it fired accidently. Each of these circumstances is very different
from Mr. Harvey’s situation, in which he testified that while he was standing on the
steps of his trailer, Toler came at him with a knife and he stabbed Toler in the chest.
Harvey acknowledged in his testimony that he struck the blow intentionally. The
context of his later statement regarding Toler’s “accident” shows that he was using
the same word to refer to the incident that a previous witness had used. Annie May
Alston, testifying before Harvey, stated: “Not on that particular day that the accident
happened, no.” Harvey then testified: “After the accident happened to him, he left.”
His use of the word “accident” does not directly refer to his own actions and does not
negate all his other testimony regarding his fears about how Toler intended to harm
him. To imply otherwise is to elevate form over substance in a manner that is
unjustified by the evidence in this case.
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STATE V. HARVEY
Earls, J., dissenting
Second-degree murder does not require that the accused acted with the intent
to kill, and therefore, Harvey did not need to testify that he intended to kill Toler,
only that he intended to strike the blow, as this Court explained in State v.
Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995). See State v. Carter, 357 N.C. 345,
361, 584 S.E.2d 792, 803-04 (2003) (reaffirming Richardson), cert denied, 541 U.S.
943 (2004); see also Lee, 370 N.C. at 673, 811 S.E.2d at 565 (self-defense available as
a defense to second-degree murder). Moreover, Toler already had threatened to kill
Harvey, had hit him, and he had thrown both a bottle and a brick at him. Harvey did
not need to wait for Toler to actually stab him with the pocketknife before defending
himself.
Harvey may have used excessive force to repel Toler’s attack, in which case the
jury should have had the option of finding that Harvey acted in imperfect self-defense.
See State v. Bush, 307 N.C. 152, 159, 297 S.E.2d 563, 568 (1982) (imperfect self-
defense exists when the defendant believed it necessary to kill his adversary in order
to save himself and when that belief was reasonable, but the defendant was either
the aggressor or used excessive force), habeas corpus granted sub nom. Bush v.
Stephenson, 669 F. Supp. 1322 (E.D.N.C. 1986), aff’d per curiam, 826 F.2d 1059 (4th
Cir. 1987) (unpublished). But the jury did not have that opportunity here because
the trial court erroneously failed to give a self-defense instruction. The jury, not the
trial judge or this Court, has the responsibility to weigh the evidence and determine
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STATE V. HARVEY
Earls, J., dissenting
whether Alphonzo Harvey acted in self-defense, either perfectly or imperfectly, when
he stabbed Tobias Toler. Accordingly, I would remand for a new trial.
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