No.Coa10-1046Twenty-Fifth Judicial District

NO.COA10-1046TWENTY-FIFTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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DEFENDANT-APPELLANT’S BRIEF

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1

SUBJECT INDEX

TABLE OF AUTHORITIES...... ii

QUESTION PRESENTED...... 1

STATEMENT OF THE CASE...... 1

STATEMENT OF GROUNDS FOR APPELLATE

REVIEW...... 2

STATEMENT OF THE FACTS...... 2

ARGUMENT...... 11

I.THE TRIAL COURT PLAINLY ERRED BY GIVING A SELF-DEFENSE INSTRUCTION THAT RELATED TO ASSAULTS NOT INVOLVING DEADLY FORCE WHEN MR. WHETSTONE STOOD ACCUSED OF ASSAULT WITH A DEADLY WEAPON WITH INTENT TO KILL INFLICTING SERIOUS INJURY 11

A.Because the Charge Given Was Specifically Covered

by the Pattern Jury Instruction Covering Assaults Involving Deadly Force, It Was Error to Instruct

from Another Pattern Instruction...... 12

B.The Trial Court’s Error Deprived Mr. Whetstone of

Due Process and A Fair Trial Because the Jury Could

Not Assess Self-Defense within the Proper Context..18

C.Trial Counsel Was Ineffective for Failing to Object..20

CONCLUSION...... 22

CERTIFICATION OF COMPLIANCE WITH

RULE 28(j)(2)(A)(2)...... 23

APPENDIX...... 24

CERTIFICATE OF FILING AND SERVICE...... 98

TABLE OF AUTHORITIES

CASES

State v. Aiken,

73 N.C. App. 487, 326 S.E.2d 919,

rev. denied, 313 N.C. 604, 332 S.E.2d 180 (1985).....11

State v. Braswell,

312 N.C. 553, 324 S.E.2d 241 (1985)...... 20

State v. Fields,
324 N.C. 204, 376 S.E.2d 740(1989)...... 13

State v. Gregory,

342 N.C. 580, 467 S.E. 2d 28(1996)...... 11

State v. Haire,

___ N.C. App. ___, 697 S.E.2d 396, 399 (2010)...... 14, 15

State v. Orr,

260 N.C. 177, 132 S.E.2d 334 (N.C. 1963)...... 18

State v. Moore,

111 N.C. App. 649, 653, 432 S.E.2d 887, 889(1993) 13, 15

State v. Petersilie,

334 N.C. 169, 432 S.E.2d 832(1993)...... 19, 21

State v. Smith,

360 N.C. 341, 626 S.E.2d 258 (2006)...... 12

State v. Tucker,

317 N.C. 532, 346 S.E.2d 417(1986)...... 18

State v. Tyson,

195 N.C. App. 327, 672 S.E.2d 700 (2009)...... 13

State v. Williams,

280 N.C. 132, 184 S.E.2d 875 (1971)...... 12

Strickland v. Washington,

466 U.S. 668(1984)...... 20, 21

CONSTITUTIONS

N.C. CONST. art. I, § 19...... 12, 20

N.C. CONST. art. I, § 23...... 20

U.S. CONST. amend. VI...... 20

U.S. CONST. amend. XIV...... 12, 20

STATUTES

N.C. Gen. Stat. § 7A-27(b)...... 2

N.C. Gen. Stat. § 15A-979(b)...... 2

N.C. Gen. Stat. § 15A-1443(a)...... 19

OTHER AUTHORITIES

N.C.P.I.—Crim 308.40...... 14, 21

N.C.P.I.—Crim 308.45...... 14, 15, 17, 21

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NO. COA10-1046TWENTY-FIFTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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DEFENDANT-APPELLANT’S BRIEF

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QUESTION PRESENTED

I.DID THE TRIAL COURT PLAINLY ERR BY GIVING A SELF-DEFENSE INSTRUCTION THAT RELATED TO ASSAULTS NOT INVOLVING DEADLY FORCE WHEN MR. WHETSTONE STOOD ACCUSED OF ASSAULT WITH A DEADLY WEAPON WITH INTENT TO KILL INFLICTING SERIOUS INJURY?

STATEMENT OF THE CASE

Mr. Whetstone was indicted on 3 November 2008 for assault with a deadly weapon with intent to kill inflicting serious injury. Trial counsel on 16 November 2009 gave notice that Mr. Whetstone would be raising self-defense at trial.

This cause came on for trial at the 10 March 2010 Criminal Session of the Catawba County Superior Court, the Honorable J. Gentry Caudill presiding. On 11 March 2010, a jury found Mr. Whetstone guilty of one (1) count of assault with a deadly weapon inflicting serious injury. On that date, Judge Caudill sentenced Mr. Whetstone to a presumptive term of thirty-three (33) to forty-nine (49) months.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This Court has jurisdiction over this appeal by virtue of N.C. Gen. Stat. § 7A-27(b) and N.C. Gen. Stat. § 15A-979(b). Timely notice of appeal was given on 11 March 2010 in open court. This appeal is from a final order of the CatawbaCounty Superior Court.

STATEMENT OF THE FACTS

Mr. Whetstone was tried for assault with a deadly weapon with intent to kill inflicting serious injury following an incident with Jeremy Dula on 1 August 2008.

Mr. Whetstone testified that Dula started staying at Mr. Whetstone’s house after he got evicted from his previous residence. T p. 105. Mr. Whetstone told Dula that he could stay until he found a job or a place to live; it turned into longer than Mr. Whetstone had planned. T p. 105. Mr. Whetstone did not know Dula’s reputation when he invited him to come stay at his home like he did at trial. Dula had told Mr. Whetstone around the time he came to live with him that he assaulted two government officials in the military and that was why he was discharged. T pp. 116-17, 144. That did not set off any concern until he saw Dula assault two women at his house. T p. 144. Mr. Whetstone didn’t mind Dula staying there until he got into a couple of altercations with his girlfriends, and then it was time for him to go. T p. 106.About a week before the incident underlying Mr. Whetstone’s charge, Mr. Whetstone told Dula he had to go. T pp. 106-07. At the time of trial, Dula resided at the Catawba County Jail. T p. 22.

Mr. Whetstone recalled, like Dula’s mother, that Dula had been staying at his house for one and a half to two months before the incident. T pp. 81, 137. Dula testified that he had never lived at Whetstone’s house but had spent the night there in the past. T p. 24. On cross-examination, he stated he had been staying there on and off for about a month, but did not recall telling officers that he had been there for two weeks. T pp. 38, 42.

Dula was a four-year veteran of the Marines who had had hand-to-hand combat training while in the service. T pp. 20, 49. Dula had been to Iraq twice, and had post-traumatic stress disorder. T p. 63, 64. His symptoms includedthat he angers easily, gets stressed out, loses sleep, and things of that nature, and has tremors. T p. 64. He takes four different medications for his PTSD, but was not on those medications at the time of the incident. T pp. 64, 65.

Mr. Whetstone recalls that he and Dula had been hanging out at his house all day on 31 July 2008. T p. 107. They grilled out that day, as they did about every night. T p. 104. Afterward, they were three bars before they returned to Mr. Whetstone’s house. T pp. 107, 111. Dula did not remember where they had been or whether they had been at more than one bar. T pp. 27, 51. Dula told Sergeant Demas, who was investigating the case, that he played poker. T p. 93. In contrast, when Dula testified, he denied he was playing poker. T p. 50. Mr. Whetstone testified that while they were out, Mr. Whetstone had two beers. T p. 108. He was buying Dula drinks and providing his food. T p. 109. Dula testified that both men were drinking quantities of liquor and that he himself was drinking Long Island iced teas, his drink of choice. T pp. 25, 26, 51.

That evening, Jessica Davis, who was dating Mr. Whetstone, saw Mr. Whetstone and Dula pull up in a car that Dula was driving. Dula left the car and was yelling at his girlfriend, Leslie, who was also Davis’ friend. Dula was intoxicated at the time. T p. 100. Leslie returned to Davis crying. T p. 100. Mr. Whetstone recalled that when Dula got back to the car, he was mad at Leslie for going to the club. T p. 110.

Mr. Whetstone testified that after they returned to his house, they sat on the bench in the back yard and called their respective girlfriends. Dula was arguing with Leslie. Mr. Whetstone told Dula that he could not be yelling out there because Mr. Whetstone had neighbors. T p. 112. Dula did not recall whether he was very loud after returning to Mr. Whetstone’s house, whether he was told he was going to have to quiet down, or whether he was told he would have to leave. T pp. 60, 61.

The next thing Mr. Whetstone knew he was on his back. T p. 112. Dula was already on top of Mr. Whetstone when he was on his back. T p. 146. Mr. Whetstone testified that he was in “full guard,” which is when both of your legs are on top of you and you can’t really do anything. T p. 145. Mr. Whetstone does not know what happened. T p. 145. Dula then swung down on Mr. Whetstone and said, “I’ll fucking kill you. You don’t fucking know me,” pointing in Mr. Whetstone’s face. Mr. Whetstone looked up at him and said, “Are you done yet?”Dula then got up, and both men went inside. T pp. 112, 146-47.

Dula initially testified that the two men got in an argument at a cement picnic table and Mr. Whetstone put his hands on Dula. T p. 27. He subsequently testified that he had no clue why the altercation started, but knows Mr. Whetstone put his hands on Dula first. T p. 37. If Dula had started it, he could have done completely more damage. T p. 37. On 4 August 2008, Dula gave a statement to Sergeant Philip Demas in which he said that Mr. Whetstone was talking on the phone and began getting very funny and weird, and his attitude changed and he began cussing and became very angry. Dula said Mr. Whetstone then got in Dula’s face and grabbed him by his shirt. T pp. 87-88. Dula said he knocked Mr. Whetstone’s hands away from him just to get him off him. T p. 88. Dula told the sergeant he did not really know why they were arguing. T p. 89.

Dula then put Whetstone on the ground and held him there. T p. 27. The cement picnic table bench got overturned because Dula pushed Whetstone over after Whetstone grabbed him. T p. 57. Dula held Mr. Whetstone down until he could calm down. T p. 89. Dula let Whetstone up and walked away. T pp. 27-28. He does not recall hitting Mr. Whetstone. T p. 37. Mr. Whetstone then went to his car and started yelling and screaming, so Dula again walked over there. T pp. 27-28. That’s when they “got into it,” on the driver’s side of Whetstone’s car. T pp. 27, 28, 29. In response to being struck by Whetstone, Dula just knocked his hand down and pushed him back. T p. 31. Dula was able to get away from the car and go across the street. T p. 31.

Mr. Whetstone testified that after the first incident, he told Dula that he would take Dula anywhere he wanted to go. Dula told Mr. Whetstone to call Leslie. T pp. 112, 147. Mr. Whetstone called Davis and Leslie and got a hold of Leslie. Mr. Whetstone told Leslie that they needed to pick up Dula, and they were on their way. T p. 112.Mr. Whetstone said that Dula was getting his book bag together while Mr. Whetstone was on the phone with Davis. T p. When Mr. Whetstone got off the phone, he walked outside. T p. 147.

Four days after the incident, Dula told an investigator that he gothis book bag and called Leslie to pick him up. Davis testified that after an hour after Davis and Leslie saw the men, Leslie got a call from Mr. Whetstone, not Dula, asking them to pick up Dula. T p. 101. Dula testified that he then went outside to wait for Leslie. T pp. 89, 94. At trial, Dula testified that his book bag with his belongings should have been inside where he left it. State’s Exhibit 2 depicted the book bag in the back yard. Dula denied taking the book bag out of the house and did not know how the bag got outside. T pp. 62, 63.

Mr. Whetstone testified that he then walked outside after the conversation about picking up Dulaand was attacked from behind, hit in the back of the head. He fell on the ground and hit his head. Dula was behind him choking him right outside the door. T pp. 118, 147-48. Dula testified that once he went outside, Mr. Whetstone started yelling again and came at Dula. T p. 90.When Dula was choking Mr. Whetstone, he was knocked to the ground. He was face down at first, and then Dula pulled him back and he was face up. T pp. 147-48. Mr. Whetstone reached on the ground and started swinging back with the knife, which he found on the ground right next to the table. T pp. 118, 148. Mr. Whetstone recalled that the knife was a kitchen knife. T p. 118. Dula testified that it was his own pocket knife. T p. 31. Dula was on top of Mr. Whetstone while he was swinging at Dula. T p. 148. Mr. Whetstone kept grilling equipment, including spatulas, knife, and seasonings, on a table right beside the grill outside the back door. T p. 107. The grill was right beside the concrete, tile-topped table. T pp. 107-08.

Mr. Whetstone testified that he was swinging back to get Dula off of him. T p. 118. Mr. Whetstone did not know whether he hit Dula. He knows that Dula pushed Whetstone off and got up and started running away. T pp. 112-13. Mr. Whetstone did not know what happened or whether Dula was hurt at all. T p. 119. Dula testified that Whetstone came at him with his fists. T p. 29. He thought Whetstone was hitting him the whole time because he did not feel it when he got stabbed. T p. 29. Dula had multiple stab wounds, including defensive wounds on his hands, three punctures in his stomach, and one on his shoulder. T p. 29.

Mr. Whetstone was so distraught he laid there for a minute after Dula left and got his composure and got up and got into his car. T p. 118. Dula testified that Mr. Whetstone came after him down the driveway and threatened him. T p. 31. Mr. Whetstone testified that he did not follow Dula in the car or yell at him. T p. 119. Mr. Whetstone suffered minor scrapes on his elbow and his forehead. T p. 114. He went to his parents’ house to tell them what had happened, that Dula had tried to kill him. Mr. Whetstone did not stay at his house because he was afraid Dula was going to come back. T p. 118. Mr. Whetstone left about two minutes after Dula did. T p. 119.

Officer Casey McClelland and another officer went to Mr. Whetstone’s house after responding to a call about Dula being stabbed at about 3:00 a.m. Dula told Officer McClelland that he and Mr. Whetstone got into an argument and Mr. Whetstone started stabbing him for no reason. T p. 78.When the officers arrived, both the front and back door of the house were open, and no one was in it. In the back yard, they saw a concrete seat overturned, a duffel bag in the back yard, and blood spatters on the driveway and in the road. T pp. 73-74, 84. McClelland did not find blood spatter or droplets near the cement table or the turned over cement bench. He was at the house for about 30 minutes at 4:00 a.m. It was harder to see blood on the grassy area at 4:00 a.m. than on pavement. T pp. 164-65.

When Mr. Whetstone learned that officers wished to speak to him, he voluntarily went to them. T p. 120. Whetstone did not report the incident to police. T p. 150-51. He threw the knife away on the way to his parents’ house, and he told officers where he threw the knife. T pp. 157, 159.

Mr. Whetstone recalled that about three weeks after incident Dula called Whetstone and told him that he was going to come looking for him and kill him. Whetstone didn’t say anything back to him. He just hung up. T p. 122. Dula testified that he had seen Mr. Whetstone a handful of times since the incident and “said some words.”T p. 66. He also called Mr. Whetstone on his cell phone and said, “Oh, I’ve left messages. I’ve left messages.” T p. 70. Dula denied ever threatening Mr. Whetstone after the incident. T p. 67. Several months after the incident, Dula called Mr. Whetstone and left messages on his cell phone saying he would come find him. T pp. 123, 128.

ARGUMENT

I.THE TRIAL COURT PLAINLY ERRED BY GIVING A SELF-DEFENSE INSTRUCTION THAT RELATED TO ASSAULTS NOT INVOLVING DEADLY FORCE WHEN MR. WHETSTONE STOOD ACCUSED OF ASSAULT WITH A DEADLY WEAPON WITH INTENT TO KILL INFLICTING SERIOUS INJURY.

Standard of Review: There was no objection at trial to the self-defense instruction that the trial court selected. Therefore, this court reviews that instruction under a plain error standard. Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to appellant of a fair trial. State v. Gregory, 342 N.C. 580, 585, 467 S.E. 2d 28, 32 (1996). Whether counsel afforded effective representation presents a question of law determined by review of the record. SeeState v. Aiken, 73 N.C. App. 487, 497, 326 S.E.2d 919, 925, rev. denied, 313 N.C. 604, 332 S.E.2d 180 (1985).

Mr. Whetstone offered evidence of self-defense sufficient to warrant a jury instruction but was wholly deprived of its effect when the trial court instructed the jury that the knife Mr. Whetstone used was a deadly weapon but also used a self-defense instruction applicable only to assaults not involving deadly force. Because using deadly force in response to a threat of mere bodily injury or offensive touching is excessive as a matter of law, there is no way the jury could have returned a verdict recognizing that Mr. Whetstone acted in self-defense. The trial court’s error in instructing the jury violated the Fourteenth Amendment to the United States Constitution, Article I, § 19 of the North Carolina Constitution, and the law of self-defense as recognized in our state. Mr. Whetstone is entitled to a new trial.

A.Because the Charge Given Was Specifically Covered by the Pattern Jury Instruction Covering Assaults Involving Deadly Force, It Was Error to Instruct from Another Pattern Instruction.

“The chief purpose of a charge is to give a clear instruction which applies the law to the evidence in such manner as to assist the jury in understanding the case and reaching a correct verdict.”State v. Williams, 280 N.C. 132, 136, 184 S.E.2d 875, 878 (N.C. 1971). “A judge has the obligation ‘to instruct the jury on every substantive feature of the case.’”State v. Smith, 360 N.C. 341, 347, 626 S.E.2d 258, 261 (2006)(citation omitted). Because self-defense is a substantive feature of a case, a trial court is required to instruct the jury on the legal principles applicable to that defense. SeeState v. Fields, 324 N.C. 204, 209-10, 376 S.E.2d 740, 743 (1989). The weight to be given to that evidence, if any, is a matter for the jury. Seeid. at 210, 376 S.E.2d at 743.

In cases in which assaults involving deadly force are at issue,

The theory of self-defense entitles an individual to use “such force as is necessary or apparently necessary to save himself from death or great bodily harm.... A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief.”…Whether or not the belief was reasonable is a matter to be determined by the jury “from the facts and circumstances as they appeared to the accused at the time.”…If an assault does not threaten death or great bodily harm, the victim of the assault may not use deadly force to protect himself from the assault.

State v. Moore, 111 N.C.App. 649, 653, 432 S.E.2d 887, 889(1993) (internal citations omitted). In this case, the judge instructed the jury that the knife Mr. Whetstone used was a deadly weapon. T p. 183. The trial court also declined to instruct the jury on assault inflicting serious injury—that is, did not offer the jury the option of finding that the knife was not a deadly weapon. T p. 167-69.