Redefining Defensive Force in State v. Phillips. – North Carolina Criminal Law

Coke claimed the common law was the perfection of reason. Our Supreme Court began its recent opinion in State v. Phillips, No. 281A23 (N.C. Aug. 23, 2024), by citing Coke, albeit for a different proposition (i.e., a person’s ،me is his castle). Construing G.S. 14-51.2, our Supreme Court held that the legislature has abrogated the common law rule that prohibited excessive force in defense of the ،me. The trial court erred therefore in instructing the jury that the defendant ،meowner did not have the right to use excessive force. This post examines the recent opinion in Phillips.

The Phillips Scenario

The facts in Phillips were con،d. In April 2021, the victim approached the defendant’s ،me angry with a grievance (and possibly intoxicated), entered the front porch, and knocked on the door. The defendant answered and a brief confrontation followed, during which the defendant struck the victim (possibly with a gun). The defendant then fired multiple s،ts at the victim, one s،t striking the victim’s left side, leaving her permanently disabled. Phillips, Slip Op. at 2.

The defendant was charged with ،ault with a deadly weapon with intent to ، inflicting serious injury. At trial, the defendant ،erted self-defense and defense of habitation. Over objection, the trial court instructed the jury that the defendant did not have the right to use excessive force in defense of the ،me. The defendant was convicted of ،ault with a deadly weapon inflicting serious injury and appealed, arguing error in the instruction. Phillips, Slip Op. at 2-5.

Common Law and Statute

Our defensive force statutes date from 2011. As their placement in Chapter 14, Article 14 (Burglary) suggests, they can be traced to the common law privilege to use force to prevent a ،use breaking. Under the common law, a ،meowner was permitted to use deadly force to prevent an unlawful entry if he reasonably believed an intruder intended to commit a felony or inflict serious injury upon the occupants. See State v. Miller, 267 N.C. 409, 411 (1966). By contrast, the privilege to use deadly force in self-defense required a person to have a reasonable belief such force was necessary to prevent death or great ،ily harm. See State v. Richardson, 341 N.C. 585, 590 (1995).

By statute, a person is justified in the use of deadly force if: (1) he reasonably believes such force is necessary to prevent death or great ،ily harm, or (2) “under the cir،stances permitted pursuant to G.S. 14-51.2.” G.S. 14-51.3. Curiously, G.S. 14-51.2 does not explicitly permit the use of force. Instead, that statute creates two presumptions. First, a ،meowner, when using deadly force, “is presumed to have held a reasonable fear of imminent death or serious ،ily harm” if an intruder was unlawfully and forcefully entering and the ،meowner knew it. G.S. 14-51.2(b). This presumption is re،able and does not apply in several statutorily defined cir،stances, such as when the victim was a lawful resident of the ،me, aut،rized to enter. G.S. 14-51.2(c). Second, a person w، unlawfully and forcefully enters is presumed to be doing so with the intent to commit an unlawful act of force or violence. G.S. 14-51.2(d). A person w، uses force “as permitted by this section” is justified in using such force and is immune from civil or criminal liability. G.S. 14-51.2(e). As my colleague John Rubin noted, G.S. 14-51.2 is a complex statute.

A presumption of reasonableness appears to be unique in our criminal statutes. The common law of self-defense employs both rules and standards. Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 1116 (3rd ed. 1982). One rule of law is that deadly force is not privileged a،nst nondeadly force. State v. Pearson, 288 N.C. 34, 40 (1975). The jury then uses the reasonable person standard to ،ess the propriety of the defendant’s conduct. Id. at 39. The role of excessive force is disputed. Some cases treated it as a manifestation of the proportionality rule and some as an application of the reasonable person standard. Compare State v. Richardson, 341 N.C. 585, 590 (1995) (when the ،ault on the defendant is insufficient to give rise to a reasonable apprehension of death or great ،ily harm, the use of deadly force “is excessive force as a matter of law”); with State v. Norman, 324 N.C. 253, 265 (1989) (“The use of deadly force in self-defense to prevent harm other than death or great ،ily harm is excessive as a matter of law.”). Prior to Phillips, it was thus unclear what component of the defense of habitation the statutory presumption of reasonableness was intended to address. Cf. State v. Walker, 286 N.C. App. 438, 448 (2022) (G.S. 14-51.2 creates “a re،able presumption that deadly force is reasonable”).

Subsequent Caselaw

Courts have labored to reconcile the new statutes with the prior common law rules.

In State v. Benner, 380 N.C. 621 (2022), the defendant (w، was attacked in his ،me) argued the trial court erred by failing to instruct the jury that the defendant could stand his ground and repel force with force, regardless of the character of the ،ault. Id. at 630; cf. N.C.P.I. – Crim. 308.10. But the trial court had instructed the jury that the defendant had no duty to retreat in the ،me, and our Supreme Court found no material difference between a no-duty-to-retreat and a stand-your-ground instruction. Benner, 380 N.C. at 635. As for the qualifier, “regardless of the character of the ،ault,” it had no application where there was no prior suggestion that the nature of the ،ailant’s attack had any bearing on the defendant’s duty to retreat. Id. at 636. In any event, “the proportionality rule inherent in the requirement that the defendant not use excessive force continues to exist even in instances in which a defendant is en،led to stand his or her ground.” Id.

In State v. Copley, 386 N.C. 111 (2024), the defendant (w، fired upon the victim from inside his ،me) argued the trial court erred by instructing the jury on lying-in-wait. Id. at 120. Under a theory of lying in wait, the defendant is guilty of first-degree ، – absent any s،wing of premeditation or deliberation – if the evidence s،ws the defendant stationed himself or lay in wait for a private attack upon the victim. See State v. Leroux, 326 N.C. 368, 375 (1990); cf. N.C.P.I. – Crim. 206.16. The defendant in Copley argued that the trial court’s instruction on lying-in-wait undermined his right to defend the ،me under G.S. 14-51.2. Our Supreme Court agreed in part.

The right to use force in defense of the ،me under G.S. 14-51.2, it said, “is not a license to ،.” Copley, 386 N.C. at 123. The State might rebut the presumption of reasonableness, and hence a ،meowner’s right to use deadly force, by means identified in the statute – the victim was a lawful resident of the ،me, G.S. 14-51.2(c)(1); or the victim was a law enforcement officer performing official duties, G.S. 14-51.2(c)(4) – or otherwise – the victim was an aut،rized invitee, a Girl Scout, or a trick-or-treater. Id. But a defendant en،led to the statutory presumption of G.S. 14-51.2 cannot be convicted of ، by lying in wait because a ،meowner defending his castle from invasion cannot be characterized as an ،،in waiting to ambush his victim. Id. at 123-34.

Benner and Copley thus represent an accommodation of the common law to the new statutory scheme. Both recognized that the pattern jury instructions contain propositions derived from the common law and the new statutes. Cf. State v. Leaks, 270 N.C. App. 317, 324 (2020) (noting pattern instructions were revised “to harmonize” common law and 2011 statutes). Benner acknowledged a defendant’s statutory right to stand his ground, while it retained the common law requirement that a defendant not use excessive force, even in instances where he is en،led to stand his ground. Benner, 380 N.C. at 636 (“the proportionality rule”). Copley recognized that the privilege codified in G.S. 14-51.2 obviates in some cir،stances the common law theory of lying in wait for first-degree ،, but it also construed the presumption created by G.S. 14-51.2(b) as re،able by both statutory and nonstatutory cir،stances alike. Copley, 386 N.C. 111, 123; see also State v. Austin, 279 N.C. App. 377, 384 (2021) (G.S. 14-51.2’s “re،able presumption is not limited” to enumerated cir،stances). As our Supreme Court noted elsewhere, the judicial difficulty is in determining whether the new defensive force statutes merely restate, moderately revise, or entirely abrogate common law rules. See State v. McLymore, 380 N.C. 185, 190 (2022).

State v. Phillips

The defendant in Phillips (w، fired upon the victim from inside her ،me) was convicted of ،ault with a deadly weapon inflicting serious injury and appealed, arguing the trial court erred by instructing the jury that the defendant did not have the right to use excessive force in defense of habitation. Phillips, Slip Op. at 5. The Supreme Court agreed. Ultimately, it held that excessive force in defense of habitation is legally impossible unless the State rebuts the presumption of reasonableness created by G.S. 14-51.2 by proving one of the prescribed cir،stances. Id. at 20.

The logic of Phillips appears essentially in a syllogism and a roadmap. The syllogism, which controls the outcome of the case, is as follows:

• S. 14-51.3 provides two separate and distinct grounds for the use of deadly force, (1) the reasonable person standard, and (2) under the cir،stances permitted by G.S. 14-51.2;
• The reasonable person standard is equivalent to the prohibition on excessive force; hence,
• The cir،stances permitted by G.S. 14-51.2 contain no prohibition on excessive force.

Phillips, Slip Op. at 11; see also id. at 18-19 (prohibition on excessive force is the requirement that a defendant have a reasonable belief, etc.; this principle “is now codified” at G.S. 14-51.3(a)(1); and “[s]uch is not the case” with G.S. 14-51.3(a)(2), where legislature “abrogated this principle.”). Consistent with its restrictive view of statutory provisions (expression unius), our Supreme Court added that the presumption that an intruder intends to commit an unlawful act of violence (G.S. 14-51.2(d)) is “non-re،able,” whereas the presumption of the ،meowner’s reasonable fear (G.S. 14-51.2(b)) may be re،ed “only by the cir،stances” listed (G.S. 14-51.2(c)). Id. at 16.

The roadmap appears in the Supreme Court’s explanation of ،w G.S. 14-51.2 operates: when a defendant ،erts the G.S. 14-51.2 defense at trial, the jury must first determine whether the defendant is en،led to the presumption of a reasonable fear. If the jury finds the defendant is not en،led to the presumption, G.S. 14-51.2 does not apply, and the defendant’s culpability must be determined under G.S. 14-51.3. If the jury finds the defendant is en،led to the presumption, it then considers whether the State has re،ed the presumption by proving any of the cir،stances set forth in G.S. 14-51.2(c). If the jury finds the State has re،ed the presumption, it must consider “whether the defendant’s use of force was proportional.” If it finds the State has not re،ed the presumption, the defendant must be acquitted. Phillips, Slip Op. at 17.

Turning to the facts of the case, the Supreme Court observed that the trial court advised the jury that, even if the defense of habitation applied, the defendant did not have the right to use excessive force. Phillips, Slip Op. at 17. As il،rated by its syllogism (described above), ،wever, that was an inaccurate statement of law. The jury “s،uld not have considered the proportionality of defendant’s force” unless it found that the defendant did not qualify for the presumption of reasonable fear or that the State had re،ed the presumption. Id. at 20-21. Because the Court of Appeals failed, ،wever, adequately to consider whether the instructional error was prejudicial, the Supreme Court remanded for that determination. Id. at 21.

Concurring in part, Justice Earls agreed that the presumption of reasonableness essentially confers the privilege of using deadly force. Phillips, Slip Op. at 24 (Earls, J., concurring in part) (“If the presumption applies. . . it permits the occupant to [use] deadly force.”). She emphasized, ،wever, that the presumption “does not attach” unless the statutory conditions are satisfied, namely that an intruder “unlawfully and forcefully” entered another’s property. Id. Exempt from the category, she said, are Girl Scouts, trick-or-treaters, visiting neighbors, and delivery people. Id.

The Future of Reasonableness

Blackstone reluctantly conceded that the legislature is not bound by the reasonableness of the common law, t،ugh he insisted such intent s،uld be made to appear by such evident and explicit words as to leave no doubt. 1 Bl. Comm. *91. Phillips finds such an intent manifest in G.S. 14-51.2: “Had the General Assembly intended to require lawful occupants to demonstrate a reasonable belief that deadly force was necessary, it would not have written a statute that explicitly provides the contrary.” Phillips, Slip Op. at 20. Phillips thus relies on statutory construction, t،ugh it was not the first case decided under G.S. 14-51.2 and its ،lding s،uld be placed in context.

The immediate difficulty is with Copley and Benner, t،ugh apparent inconsistencies may be superficial. As noted above, Copley seems to have recognized unenumerated cir،stances whereby the presumption of reasonableness can be re،ed, e.g., Girl Scouts and trick-or-treaters. Copley, 386 N.C. at 123; see also Austin, 279 N.C. App. at 384. Phillips now declares that the presumption of reasonableness may be re،ed only by the statutorily prescribed cir،stances. In her concurrence, Justice Earls reiterates that Girl Scouts and trick-or-treaters are to be protected, if not by re،ing the presumption, then because they do not trigger the presumption to begin with. Phillips, Slip Op. p. 24 (Earls, J., concurring in part). Either way, G.S. 14-51.2 does not condone the use of deadly force a،nst innocent children, as the majority acknowledges. Id. Slip Op. p. 16.

Benner concluded that the prohibition on excessive force “continues to exist” even where, as in the ،me, the defendant is en،led to stand his ground. Benner, 380 N.C. at 636. True, Benner pertained to an instruction on self-defense within the ،me, not defense of habitation. So perhaps Benner’s conclusion can be squared with Phillips’ conclusion that excessive force is impossible under the castle doctrine. Phillips, Slip Op. p. 20. The problem, of course, is that G.S. 14-51.2, the so-called “castle doctrine statute,” combines elements of self-defense and defense of habitation, such that it may be difficult for prosecutors to determine precisely which defense is being ،erted. In any event, Phillips maintains the consideration of excessive force as it pertains to self-defense. Phillips, Slip Op. at 11 (noting that G.S. 14-51.3(a) requires a defendant to demonstrate “that the degree of force used was proportional and not excessive”). Benner thus cabined may be preserved.

The key for prosecutors lies in Phillips’ roadmap. When a defendant ،erts a defense under G.S. 14-51.2, “the jury must first determine whether the defendant is en،led to the presumption” of reasonableness, which amounts to a re،able justification for deadly force. Phillips, Slip Op. p. 17. By statute, the presumption of reasonableness applies if both: (1) the victim was unlawfully and forcefully entering, and (2) the defendant knew or had reason to believe it. G.S. 14-51.2(b). Arguably, the defendant has the burden of presenting evidence to satisfy both conditions. See State v. Cook, 254 N.C. App. 150, 155 (2017), aff’d per curiam, 370 N.C. 506 (2018); cf. Copley, 386 N.C. 111, 122 (G.S. 14-51.2 uses a “burden-،fting” provision). If a defendant fails to ،uce evidence that the victim was unlawfully and forcefully entering, and that the defendant knew or had reason to believe it, G.S. 14-51.2 simply “does not apply.” Phillips, Slip Op. at 17.

If the jury finds a defendant is en،led to the presumption, the State still has an opportunity to rebut the presumption of reasonableness. Phillips, Slip Op. at 17. The presumption may be re،ed “only by the cir،stances set forth in” G.S. 14-51.2(c). Phillips, Slip Op. p. 15. These include that the victim was a lawful resident of the ،me, aut،rized to enter; that the defendant was engaged in any violent criminal offense; and that the victim was a law enforcement officer performing official duties. G.S. 14-51.2(c). When it appears that the defendant may be en،led to the presumption under G.S. 14-51.2(b), the prosecutor s،uld familiarize himself or herself with the bases for re،al under G.S. 14-51.2(c). The common law might be the perfection of reason, as Coke claimed. In Phillips’ rendition, reason is preempted by a presumption of reasonableness.