Victor Manuel Perez - INDEX

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					No. COA06-440                                   FOURTH DISTRICT

                 NORTH CAROLINA COURT OF APPEALS

      ****************************************************

STATE OF NORTH CAROLINA          )
                                 )
         v.                      )    From Onslow
                                 )
VICTOR MANUEL PEREZ              )

      ****************************************************
                      DEFENDANT-APPELLANT‟S BRIEF

      ****************************************************
                           SUBJECT INDEX


TABLE OF AUTHORITIES...........................................ii

QUESTIONS PRESENTED.............................................1

STATEMENT OF THE CASE...........................................1

STATEMENT OF GROUNDS FOR APPELLATE REVIEW.......................2

STATEMENT OF THE FACTS..........................................2

ARGUMENT.......................................................19

    I.     THE TRIAL COURT VIOLATED MR. PEREZ‟S
           CONSTITUTIONAL RIGHTS BY ALLOWING THE STATE TO
           INTRODUCE EVIDENCE TO DEPICT MR. PEREZ AS A GANG
           MEMBER, WHERE NO EVIDENCE SHOWED THAT THE
           SHOOTING OF FRANKIE RODRIGUEZ WAS GANG-RELATED.......19

    II.    THE TRIAL COURT COMMITTED PLAIN ERROR BY
           INSTRUCTING THE JURY THAT THE DEFENDANT HAD THE
           BURDEN OF PROVING SELF-DEFENSE AND DEFENSE OF A
           THIRD PARTY BEYOND A REASONABLE DOUBT................29

CONCLUSION.....................................................35

CERTIFICATE OF SERVICE.........................................36

APPENDIX
                               ii

                      TABLE OF AUTHORITIES


                              CASES

Delaware v. Dawson,
     503 U.S. 159, 117 L.Ed.2d 309 (1992)............. 20, 24, 25

State v. Baublitz,
     172 N.C. App. 801, 616 S.E.2d 615 (2005)................. 22

State v. Bell,
     164 N.C. App. 83, 594 S.E.2d 824 (2004).................. 20

State v. Faulkner,
     241 N.C. 609, 86 S.E.2d 81 (1955)........................ 31

State v. Goforth,
     170 N.C. App. 584, 614 S.E.2d 313, cert. denied,
     359 N.C. 854, 619 S.E.2d 854 (2005)...................... 30

State v. Hankerson,
     288 N.C. 632, 220 S.E.2d 575 (1975), reversed on
     other grounds, 432 U.S. 233, 53 L.Ed.2d 306
     (1977)................................................... 26

State v. Harris,
     289 N.C. 275, 221 S.E.2d 343 (1976)...................... 34

State v. Hightower,
     168 N.C. App. 661, 609 S.E.2d 235, review denied,
     359 N.C. 639, 614 S.E.2d 533 (2005)...................... 26

State v. Odom,
     307 N.C. 655, 300 S.E.2d 375 (1983)...................... 30

State v. Potter,
     295 N.C. 126, 244 S.E.2d 397 (1978)...................... 29

State v. Ruof,
     296 N.C. 623, 252 S.E.2d 720 (1979)...................... 26

State v. Thorne,
     ___ N.C. App. ___, 618 S.E.2d 790 (2005.................. 20

State v. Tutt,
     171 N.C. App. 518, 615 S.E.2d 688 (2005)................. 22
                                 iii
United States v. Stitt, ,
     250 F.3d 878 (4th Cir. 2001), cert. denied, 535
     U.S. 855, 152 L.Ed.2d 855 (2002)......................... 26



                               STATUTES

N.C. Gen. Stat. § 8C-1, Rule 103(a)(2)........................ 22



                    CONSTITUTIONAL PROVISIONS

United States Constitution

     First Amendment.................................. 19, 24, 25

     Fourteenth Amendment..................................... 19



                             OTHER AUTHORITIES



N.C. R. App. P., Rule 2....................................... 22

N.C.P.I. -- Crim. 206.10...................................... 31

N.C.P.I. -- Crim. 308.45................................... 30-33
No. COA06-440                                          FOURTH DISTRICT

                  NORTH CAROLINA COURT OF APPEALS

       ****************************************************

STATE OF NORTH CAROLINA         )
                                )
          v.                    )    From Onslow
                                )
VICTOR MANUEL PEREZ             )

       ****************************************************
                      DEFENDANT-APPELLANT‟S BRIEF

       ****************************************************

                          QUESTIONS PRESENTED

I.    WHETHER THE TRIAL COURT VIOLATED MR. PEREZ‟S CONSTITUTIONAL
      RIGHTS BY ALLOWING THE STATE TO INTRODUCE EVIDENCE TO DEPICT
      MR. PEREZ AS A GANG MEMBER, WHERE NO EVIDENCE SHOWED THAT
      THE SHOOTING OF FRANKIE RODRIGUEZ WAS GANG-RELATED?

II.   WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING
      THE JURY THAT THE DEFENDANT HAD THE BURDEN OF PROVING SELF-
      DEFENSE AND DEFENSE OF A THIRD PARTY BEYOND A REASONABLE
      DOUBT?

                         STATEMENT OF THE CASE

      This case came on to be tried at the April 11, 2005 Criminal

Session of Onslow County Superior Court before the Honorable

Charles H. Henry, presiding, on indictments charging defendant

with one count of first-degree murder and one count of

discharging a firearm into occupied property.       On April 25, 2005,

the jury found defendant guilty of second-degree murder and not

guilty of discharging a firearm into occupied property.      On April

25, 2005, Judge Henry sentenced defendant to a presumptive

sentence of 157 months to 198 months in prison for second-degree

murder.   Defendant gave notice of appeal on April 29, 2005.
                                           2

                 STATEMENT OF GROUNDS FOR APPELLATE REVIEW

      Defendant appeals pursuant to N.C. Gen. Stat. § 7A-27(b)

from a final judgment of Onslow County Superior Court.


                               STATEMENT OF THE FACTS

Introduction


      In   the     summer   of    2002,   in   Jacksonville,       Lance    Corporal

Victor Perez of the United States Marine Corps was afraid that

Frankie Rodriguez was going to kill him.                    Mr. Perez had returned

to Camp Lejeune in June 2002 from duty in Okinawa.                    Mr. Perez met

Rodriguez in a chance encounter at the home of his ex-girlfriend,

Shannon Diaz.           Over the next several weeks, Rodriguez angrily

confronted Mr. Perez and repeatedly threatened to kill Mr. Perez.


      Mr. Perez is 5‟6” and weighs 130 pounds.                   Frankie Rodriguez

was 6‟2” and weighed 185 pounds.


      On September 3, 2002, Rodriguez, armed with a steak knife,

drove to a shopping center, waited for Mr. Perez to leave a

restaurant, and then angrily confronted him. Both men got into

their cars, but moments later the cars collided.                      Mr. Perez and

Rodriguez got out of the cars.             When Mr. Perez saw Rodriguez move

his   hand   toward      his    pants    pocket,   he   thought       Rodriguez     was

reaching     for    a   weapon,    and    he   fired    a    number    of   shots    at

Rodriguez with a 9 mm. pistol.                 Four shots struck Rodriguez,

killing him.       Two bullets hit a nearby store.
                                          3

       The central question in the trial was whether Mr. Perez shot

Rodriguez in either perfect or imperfect self-defense.


Victor Perez’s Background


       Victor Perez was born in the Dominican Republic and grew up

in New York City.          In 1999, after his junior year in high school,

Mr. Perez worked for the Federal Reserve Bank in New York as an

intern.      His excellent performance led the Bank to offer him a

part-time    job     in    the   bank   examinations    department     during    his

senior year.       Mr. Perez worked for the Bank for about 20-25 hours

a week that year, helping to implement a new computer system for

the department‟s training program.             His supervisors, Gerald Friar

and Candida Young, testified that Mr. Perez was an outstanding

employee,     that    he    was    very   dependable,    reliable,     and   hard-

working.     They testified that he was honest, peaceful, and law-

abiding.      Mr. Friar encouraged Mr. Perez to attend college and

wrote letters of recommendation for him.               (Tpp. 1573-82, 1591-94)


       Mr. Perez‟s mother encouraged him to join the Marine Corps

after his high school graduation, and he enlisted in the Marines

in 2000.      (Tp. 1441)         He was stationed at Camp Lejeune in 2001

and was sent to Okinawa from December 2001 to June 2002, working

first as a warehouse clerk and then as a fiscal clerk.                          As a

fiscal clerk, Mr. Perez used a computer to track all expenditures

for his unit.        His supervisor, Captain William Arthur, testified

that   Mr.   Perez    was    an    excellent   Marine    who   never   caused     “a

moment‟s trouble. . . .”           (Tpp. 1374-79)
                                                 4

Events Leading to Incident on September 3, 2002


       During    his    first       stint       at     Camp    Lejeune,      Mr.    Perez   met

Shannon Diaz, who lived with her family in Jacksonville.                                    They

briefly dated.         Although they did not continue their relationship

when   Mr.   Perez     was        sent    to    Okinawa,      Mr.    Perez    did    see    Diaz

occasionally     when        he    returned          to   Jacksonville       in    June    2002.

(Tpp. 1444-49)         In the meantime, he began to date a woman named

Jessica Rivera (who later married another man and changed her

last name to Betancourt).                 (Tpp. 1481-82, 1931-32)


       When Mr. Perez returned to Jacksonville, Frankie Rodriguez

was Diaz‟s boyfriend.              Mr. Perez first met Frankie Rodriguez when

he went to Ms. Diaz‟s mother‟s house.                          Diaz and Rodriguez were

there, and they invited Mr. Perez in and offered him marijuana to

smoke.       Since     Mr.    Perez       was    a    Marine    and   he     did    not    smoke

marijuana, he declined the offer and left.                       (Tpp. 1452-54)


       A couple of days later, Mr. Perez and some of his Marine

friends   gave    Diaz       a     ride    to    her      mother‟s    house.        When    they

arrived, Diaz saw Frankie coming out of the house and she became

upset.    Diaz and Frankie entered the house, and Mr. Perez heard

shouting, screaming, and crying from inside the house.                              Diaz left

the house and asked Mr. Perez to drive her to her grandparents‟

house.    He agreed.         (Tpp. 1450-52, 1454-56)


       Rodriguez came out of the house, upset.                        Rodriguez looked at

Mr. Perez and said, “What bitch, what are you looking at?”                                 (Tpp.
                                    5

1456-57)    Mr. Perez jokingly asked, “Who is this cat?”     Rodriguez

“went off.”     He became angry and said, “Cat?    I‟m not a cat.   I‟m

a dog, a killer.”    (Tpp. 1457-58)


       A man in a car parked in front of the house (apparently a

friend of Rodriguez) got out of the car -- but with his hands in

the glove compartment.     Mr. Perez became scared, wrote down the

license plate number of the car, and said he would call the

police.    Rodriguez said, “Why you got to call the police like a

little girl?”    (Tpp. 1458-59)


       This incident began an escalating series of incidents in

which Rodriguez confronted Mr. Perez or phoned Mr. Perez and

threatened to kill Mr. Perez.       Mr. Perez never called the police

about Rodriguez.     He said he would call the police only because

he thought Rodriguez would then leave him alone.      (Tp. 1480)


       After the incident outside Diaz‟s mother‟s house, Rodriguez

left about ten threatening messages on Mr. Perez‟s phone voice

mail.     In one message, Rodriguez said that Mr. Perez “was dead,

[that he] was a snitch killer, why did [you] have to run to the

police like a little bitch.”      (Tp. 1465)   Once Mr. Perez answered

the phone when Diaz called.       Rodriguez took the phone from Diaz.

Rodriguez repeatedly called himself a “snitch killer” and said,

“What you got to run to the police like a little girl?        Why you

got to run to the police like a little bitch? . . . you‟re dead

son.    I‟ve got your number.”    (Tpp. 1462-64)
                                                 6

       Mr. Perez did not call Rodriguez back after hearing the

threatening           messages.        Noting     their      difference        in    height      and

weight, Mr. Perez explained that “Frankie was a big guy.                                     I was

scared of Frankie.”              (Tp. 1465)


       A week or two after the incident at Diaz‟s mother‟s house,

Rodriguez confronted Mr. Perez in the parking lot of a night spot

called Club Taylor‟s.                Mr. Perez was driving with other Marines.

A   friend       of    Rodriguez       named    Charles      Glover      came       over    to   Mr.

Perez‟s         old    Cadillac      and   said      something     to     him.         Diaz      was

standing near them, along with other people who appeared to be

with them.            Rodriguez said, “What now, bitch?                    Come out of the

car.       Step out of the car.”                (Tpp. 1459-62)           Mr. Perez pointed

out    a    Sheriff‟s         Deputy    standing       nearby     and    said,       “See     who‟s

standing there?”               Glover answered, “I didn‟t give a f_ck.                       I did

my time.”           Mr. Perez drove away.            (Tp. 1466)


       After the incident at Club Taylor‟s, Rodriguez left more

threatening           phone     messages    for       Mr.   Perez.        In    one        message,

Rodriguez said, “You‟re nothing but a little bitch, nothing but a

little punk.            Next time I see you I‟m going to handle you.                             I‟ve

got your number.               You‟re dead.”         (Tp. 1467)         Mr. Perez testified

that       as   a     result    of   the   incident         at   Club    Taylor‟s          and   the

additional phone threats, “I was real scared.”                            He explained that

“he    was       actually       finding    me        places,     like     he    was        actually

following me. . . .”              (Tp. 1467)
                                           7

    Mr. Perez next saw Rodriguez in August 202, outside another

club called the Cave.          Mr. Perez was sitting by himself on the

sidewalk; his friends Andre, Santana, and Jeremy were inside the

club.     Diaz drove up in her Neon with Rodriguez and another man

inside.     Diaz    turned     off   the       headlights,    and    they    all   were

pointing at Mr. Perez.          He was afraid they were about to shoot

him, so he quickly called his friends in the club on his cell

phone.    His friends came out, along with two security guards. The

security guards told Rodriguez, Diaz, and the other man to leave.

They left, but they immediately drove back after the security

guards had gone back into the club.                  They pointed at Mr. Perez,

and Diaz said, “We‟re going to get you.”                (Tpp. 1468-72)


    Mr. Perez and his friends Jeremy and Andre followed them in

cars.     Jeremy got out and argued with Rodriguez.                   Rodriguez had

his hand in his right pocket.                   Then Jeremy pointed a gun at

Rodriguez, Diaz, and the other man.                 Mr. Perez got out of his car

and asked Jeremy what he was doing.                 Then he asked Rodriguez what

he wanted from him.       Rodriguez did not answer; he started talking

on a cell phone and laughed.               Mr. Perez and Jeremy left, but

Rodriguez argued with Andre and pointed at Andre, and Andre threw

a small bat at Rodriguez.            Mr. Perez retrieved the bat, and he

and his friends left.         (Tpp. 1473-77)


    More threatening calls followed.                  In one call, Diaz relayed

a message from Rodriguez that they knew Mr. Perez had called the

police,    that    he   had   snitched         on   them,    and    that    undercover
                                              8

officers had searched Ms. Diaz‟s mother‟s house.                        Rodriguez told

Diaz to say, “You‟re dead, bitch.                  This ain‟t New York.        This is

Jacksonville.       This is our town.”            (Tpp. 1478-80)


      Rodriguez‟s       repeated        threats       frightened    Mr.    Perez.      He

testified,


             I was really scared of him. I‟m not from
             Jacksonville. I don‟t know much about
             Jacksonville. I don‟ know who he knows,
             where he‟s going to be next. He said he was
             going to come after me. He seems to be
             showing up everywhere. At that time, I
             didn‟t want to stop at the gas station no
             more. I didn‟t want to go out and have
             something to eat off base anymore. I really
             didn‟t feel like going anywhere anymore.

(Tp. 1481)


The Incident on September 3, 2002


      Charles Glover testified that on the evening of September 3,

2002, Rodriguez and Diaz picked up Glover.                     Rodriguez was driving

Diaz‟s     Neon.       Rodriguez       and     Glover    had     been   friends     since

childhood.       Rodriguez told Glover that he had seen Mr. Perez‟s

car in the Brynn Marr Shopping Center, outside the China Garden

restaurant.        (Tpp. 805-07)


      Rodriguez      drove   to    the        China    Garden.      Glover    saw   that

Rodriguez had a knife on his lap.                     Rodriguez then put the knife

in   the   center      console    as     he    drove.       Police      officers    later

described the knife as a 7” steak knife.                       Rodriguez, Diaz, and

Glover     saw   Mr.    Perez     and    Ms.      Rivera   leave     the   restaurant.
                                          9

Rodriguez walked up to Mr. Perez and began to argue with Mr.

Perez.   (Tpp. 808-15, 1049, 1357)


    Several      witnesses    testified          about    what      happened   when

Rodriguez confronted Mr. Perez outside the China Garden.                       They

agreed that Rodriguez yelled at Mr. Perez, that Glover and Diaz

told Rodriguez to get back into the Neon, that Mr. Perez and Ms.

Rivera got into their car, that Rodriguez got back into the Neon,

that the two cars began to drive away, that the cars collided,

that both Rodriguez and Mr. Perez got out of their cars, that Mr.

Perez fired a number of shots at Rodriguez from a pistol, that

Rodriguez fell partly into the Neon, and that Mr. Perez drove

away.    However, the witnesses disagreed about other facts.


Victor Perez


    Mr. Perez testified that Ms. Rivera had told him a week

earlier that she thought she was pregnant with his child.                       On

September   3,   when   he   and    Ms.       Rivera   left   the   China   Garden,

Rodriguez drove up in the Neon.                Rodriguez jumped out and said,

“What now, bitch?       Your friends ain‟t here now.                You boys ain‟t

here now.      Told you I was going to get you.”                    (Tpp. 1493-94)

Rodriguez pointed at Mr. Perez with his left hand.                       Rodriguez

kept his right hand near his right pocket, frightening Mr. Perez.

Rodriguez made flinching motions.              Mr. Perez did not want to make

Rodriguez angrier.       Mr. Perez told Rodriguez, “I think she‟s

pregnant, man.      I don‟t want any trouble.                 I don‟t want any

trouble.”    (Tpp. 1494-95)        Mr. Perez got into the front passenger
                                  10

seat of his Cadillac and Ms. Rivera got into the driver‟s seat.

Rodriguez was still yelling and making threats.      Jessica began to

drive, but she pulled right behind the Neon.      (Tp. 1496)


    Mr. Perez explained that when he got into his car,


         I froze. See, the minute I saw him coming
         up, my heart dropped. I mean, he was right.
         My boys wasn‟t there to keep him off me and
         to break anything up and I though he had me,
         so when I went in the car, I just froze.

(Tp. 1496)


    Mr. Perez kept telling Ms. Rivera to drive away.        Ms. Rivera

was crying, trembling.    She told Mr. Perez that she could not

move the car because Rodriguez was right next to the car.      Then

Rodriguez got back into the Neon.      However, Ms. Rivera still

could not drive away because the Neon was right in front of them.

Mr. Perez told Ms. Rivera to move over to the passenger seat.        He

got out to go around the car to the driver‟s seat, but the

driver‟s side door was locked.    (Tpp. 1497-99)    Mr. Perez said,


         When my door wouldn‟t open, I got real
         scared, and I started knocking on the glass
         to let me in, and while she was trying to let
         me in, Frankie tried to back the green Neon
         into me.

(Tp. 1499)   Diaz screamed, “Frankie no.”     (Tp. 1499)   Ms. Rivera

opened the door and Mr. Perez jumped in right before Rodriguez

tried to back into him.    (Tp. 1499)


    Mr. Perez asked Rodriguez to move, but every time Mr. Perez

moved his Cadillac, Rodriguez moved the Neon only a little.        At
                                    11

one point, Mr. Perez thought he could get away.       (Tp. 1500)    His

car jumped.    He tried to drive away quickly.     “I was going to try

to cut and leave.     I was going to try to beat them out of the

parking lot.”     (Tp. 1501)


    Mr. Perez testified,


            When my car jumped, I lost control of it, and
            I almost hit somebody. And the[re] were also
            people over here where I had tried to go, so
            I panicked. I tried to gain control of the
            car and straighten it out, and when I did,
            the green Neon was right in front of me. . .
            . They slammed the brakes right in front of
            me.

(Tp. 1501)     Mr. Perez stepped on his brake, but his car hit the

rear end of the Neon.     (Tp. 1502)


    Then “Frankie‟s door flew open. . . .        And I saw him coming.

I told Jessica, „he‟s coming‟, and I told her to hand me the gun

that was under the seat.”      (Tp. 1502)   The gun belonged to Mr.

Perez‟s friend Jeremy, who often left the gun in Mr. Perez‟s car.

(Tp. 1522)     Ms. Rivera gave the gun to Mr. Perez and he got out

of his car.     Rodriguez was “pissed off.”    (Tp. 1502-03)


    Rodriguez got out of the Neon and reached his hand down.

Mr. Perez thought Rodriguez had a gun because Rodriguez had

“[s]aid he was going to kill me.”        (Tpp. 1504-05)   Mr. Perez put

his hand across his face and fired repeatedly.       “I couldn‟t see

anything.     I couldn‟t hear anything.”    (Tp. 1505)    He said, “I

felt asphalt like chips hitting my ankles, and I though he was

shooting at me, and when I looked, my hand was down here, and I
                                      12

was shooting at the ground.”     (Tp. 1506)     He did not know whether

any of his shots had hit Rodriguez.        (Tp. 1507)    Then Rodriguez

went back to the Neon, and Mr. Perez was afraid that Rodriguez

was getting another weapon, so Mr. Perez threw the gun at

Rodriguez as Rodriguez was getting into the Neon.             (Tpp. 1507-08)

Mr. Perez wanted to cry, he was scared.        (Tp. 1508)


    Mr. Perez drove out of the parking lot.           He was afraid that

he was being followed, so he told Ms. Rivera to get out.

Eventually he stopped at another shopping center.             His car was

damaged, so he called Ms. Rivera‟s friends for a ride.             They

drove him to Ms. Rivera‟s house.       He was scared.     He called his

family in New York.   He told his uncle, “I shot somebody, I think

I shot somebody.”   He spoke to another relative who was a police

officer.    He tried to call a lawyer in Jacksonville, but no one

answered the phone.   Mr. Perez then called Diaz.         A police

officer answered.   Mr. Perez said he would turn himself in at the

police station.   He called a taxi to get a ride to the police

station.    The police officer called back and arranged to pick Mr.

Perez up.    Mr. Perez also called Camp Lejeune to report that he

had been in a fight and had shot at someone.          (Tpp. 1509-14)


Jessica Rivera Betancourt


    Before     September   3,   Mr.    Perez   told     Ms.    Rivera     about

Rodriguez‟s threatening phone calls.        Ms. Rivera listened to some

of the messages, including threats by a male voice, “I‟m going to

get you,” and “I‟m going to beat you up.”        (Tpp. 1938-39)
                                           13

      When   Ms.    Rivera   and    Mr.    Perez     left   the    China       Garden    on

September 3, the Neon pulled up and Rodriguez got out and started

to yell at Mr. Perez.          Mr. Perez and Ms. Rivera were both scared,

and he told Ms. Rivera to get into his car.                     Charles Glover also

got out of the Neon.            Rodriguez and Glover stayed behind Mr.

Perez‟s car, so Ms. Rivera could not back out of their parking

spot.      Mr.   Perez   told    Ms.   Rivera      to   give    him   a    gun.        When

Rodriguez and Glover finally moved away, Ms. Rivera backed the

car out.     Rodriguez drove the Neon in front of Mr. Perez‟s car

and     stopped.      Ms.    Rivera       switched      seats     with     Mr.     Perez.

Rodriguez drove the Neon off, and Mr. Perez drove his car off.

Then Rodriguez slammed on the Neon‟s brakes.                    Mr. Perez tried to

stop his car, but it ran into the back of the Neon.                            Ms. Rivera

was shocked, afraid.            Mr. Perez asked if she was okay.                        The

Rodriguez got out of the Neon, Mr. Perez got out of his car, and

the gun fired.       Ms. Rivera only remembers hearing one shot; she

remembers seeing Mr. Perez drop the gun on the ground.                          Mr. Perez

got back into the car and drove away.               (Tpp. 1937-45)


Charles Glover


      Glover testified that Shannon Diaz was one of Rodriguez‟s

girlfriends.       Rodriguez was strong and he had long hair, a beard,

earrings,    tattoos,    and    a   nose    ring.       Rodriguez        was    loud    and

boisterous.      (Tpp. 828-35)


      Before Rodriguez picked Glover up on September 3, he told

Glover that he had seen Mr. Perez‟s car near the China Garden and
                                         14

that he was going to confront Mr. Perez in the China Garden

parking lot.        Rodriguez had a knife in his lap when he picked

Glover up.        Shannon Diaz was crying.        Rodriguez put the knife in

the center console, under the emergency brake, before he drove to

the China Garden.       (Tpp. 815, 843-848, 853-54)


       Glover     admitted   that   in   his   statement     to   the   police    on

September 3, he did not mention that Rodriguez had a knife, and

he did not mention Rodriguez‟s phone call.                (Tpp. 843-44)


       Glover confirmed Mr. Perez‟s testimony about the first part

of the incident: When Rodriguez drove up to the China Garden, Mr.

Perez was walking with a woman (Ms. Rivera).                  Rodriguez got out

of the Neon and said to Mr. Perez, “What‟s up man, you ain‟t with

your friends.”        Mr. Perez said he did not want any trouble, but

Rodriguez was yelling at him.             Rodriguez insulted Mr. Perez in

English and Spanish, calling him a “bitch.”               (Tpp. 817, 860-67)


       Glover testified that he thought there would be a fight.                  He

said   he   had    thought   Rodriguez    would    get    into    a   fight   during

previous times he had been with Rodriguez.                   (Tp. 842)        Glover

took hold of the knife from the center console while they were in

the parking lot to keep Rodriguez from grabbing it.                     (Tpp. 812-

16)    Glover told Rodriguez, “If you ain‟t going to fight, ain‟t

going to squash, get back in the car and leave it like that.”

(Tp. 818)       After Diaz and Glover repeatedly told Rodriguez to get

back in, Rodriguez, whom Glover described as “hard-headed,” got

back into the car and drove away.             (Tp. 816)
                                          15

      Glover testified that Mr. Perez drove up fast in his car and

hit the Neon.        He said Rodriguez got out of the car, without the

knife, and said “What‟s going on.”              (Tpp. 809, 819)          He said that

Mr. Perez got out of his car, shot Rodriguez four or five times,

grabbed Rodriguez‟s head, hit his head with the gun, dropped the

gun in the car, walked away, and drove away.                         (Tpp. 808-11)

Police   officers      later   found   Rodriguez‟s         knife    on    the   Neon‟s

floor.   (Tp. 1050)


Shannon Claudio-Diaz


      Diaz    testified    that    Rodriguez      used    drugs    (though      not   on

September 3).        She owned the Neon.          She said that she had dated

Mr.   Perez    and    Rodriguez;    she     was    only    dating    Rodriguez        on

September 3.     Rodriguez used to carry a “butterfly knife,” but it

had been stolen from the Neon.            She did not see him with a knife

after that, and she did not see a knife in the Neon on September

3.    She said she did not hear Rodriguez say he was going to

confront Mr. Perez on September 3.              (Tpp. 898, 916, 921, 923-927)

She   said    that   on   September    3,      Rodriguez    saw    Mr.    Perez   when

Rodriguez drove into the Brynn Marr Shopping Center.                         She said

they argued, Rodriguez got back in the Neon, he drove a short

distance, and Mr. Perez‟s car hit the Neon in the back.                           She,

Rodriguez, and Glover got out of the Neon, she heard shots, and

she saw Mr. Perez shoot Rodriguez.              (Tpp. 898-900, 916)


Three Marine Eyewitnesses
                                       16

      Marines Eli Schrader, Kenneth Wiecek, and Roy Epley were in

the   Brynn    Marr   Shopping   Center     at    the    time   of    the   incident,

though not together.          Epley saw Rodriguez and Mr. Perez arguing.

Rodriguez told Mr. Perez, “See, I told you you wasn‟t going to do

nothing.      You‟re another f_cking n_gger” or “See, I told you you

wasn‟t going to do a f_cking thing.                     You wasn‟t going to do

nothing, you . . . punk ass n_gger.”              (Tpp. 682, 86, 735-36).


      Epley said that Rodriguez got back into the Neon and drove

off and that Mr. Perez floored his car and hit the Neon without

braking.      Rodriguez and Mr. Perez both got out of their cars.

Mr. Perez fired at Rodriguez four to six times from a gun held

sideways, got back into his car, and drove away.                      (Tpp. 689-90)

He did not see Mr. Perez throw the gun into the Neon, and he did

not   see     anything   in    Rodriguez‟s       hands    at    the   time    of   the

shooting.      (Tpp. 694, 757)


      Wiecek was in a restaurant.            He heard tires squeal and left

the restaurant.       He said that Mr. Perez‟s car went “flying past

us” and “slammed in to the Neon.”                   (Tp. 643)          Both drivers

started to get out.           Mr. Perez shot at Mr. Rodriguez seven or

eight times.       Mr. Perez threw the gun into the Neon, got back

into his car, and drove away.          Wiecek did not see Rodriguez with

a weapon.      (Tpp. 643-46)      Wiecek confirmed Mr. Perez‟s testimony

that Mr. Perez‟s hand was flailing around for the last two shots

and that he pointed the gun at the ground.                (Tpp. 656-57)
                                     17

    Schrader saw Rodriguez arguing with Mr. Perez.                 Rodriguez

got back into the Neon.       Schrader heard tires squeal.         Mr. Perez

drove by fast and collided with the Neon.            Rodriguez started to

get out of the Neon.     Mr. Perez was holding a gun, walking toward

Rodriguez.     Schrader said that Mr. Perez fired eight to nine

shots, threw the gun into the Neon, and left.          (Tpp. 610-12)


Expert Testimony


    John     Flanagan,   an     expert    in   engineering   and    accident

reconstruction, analyzed reports and photographs of the two cars

and reviewed manufacturers‟ specifications for the two cars in

order to determine the direction and speed of motion of the Neon

and Mr. Perez‟s Cadillac at the time of impact.              He found that

when the two cars were at rest, the front bumper of Mr. Perez‟s

Cadillac was higher than the rear bumper of the Neon.                Despite

that height difference, Mr. Flanagan observed that crime scene

photos of the damage to the two cars show that the front bumper

of Mr. Perez‟s Cadillac went under the rear bumper of the Neon.

The photos also show that little damage was done to the rear of

the Neon, but substantial damage occurred to the front of Mr.

Perez‟s    Cadillac.     (Tp.    1782-85,      1795-1803)    Mr.    Flanagan

concluded that the two cars were traveling at low speeds at the

time of impact -- no more than five mph.           He also concluded that

the since the front bumper of the Cadillac went under the Neon‟s

rear bumper, the Neon must have been braking at the time of

impact, not sitting still.       (Tpp. 1803-07)
                                        18

      David Cloutier, who served as a law enforcement officer for

32 years and was the director of defensive tactics of the North

Carolina    Justice    Academy   from    1991    to     2001,    testified     as    an

expert in the use of force.          Mr. Cloutier said that a person who

believes that someone might attack with a knife should stay at

least 21 feet away from the assailant because an assailant can

cross that distance extremely quickly to attack with a knife.

The   average    person   with   a     pistol    could     not    draw   and    fire

accurately before the assailant came close enough to stab the

person    with   the   knife.    (Tpp.       1994-95)      In    his   years    as   a

trainer, he has seen students hold a pistol sideways when they

first learned to shoot a pistol.              (Tp. 1997)         He trains people

that depending on pre-attack cues (e.g., movements by a potential

assailant during an argument) and variables (e.g., relative size

and physical condition, availability of weapons), it might be

necessary to act pre-emptively rather than to wait to react to an

attack.     (Tpp. 1987-90, 2023)         In this case, Rodriguez‟s prior

threats and Mr. Perez‟s perception that Rodriguez moved his hand

toward his pocket after the collision were pre-attack cues.                         The

disparity in size between the two men was a relevant variable.

(Tpp.    2003-04)      Even   people    who    are    trained     to   use   pistols

sometimes fire at the ground unintentionally if they are under

stress about a possible attack.               (Tpp. 2009-10)


      Dr. Charles L. Garrett, who performed the autopsy, testified

that four bullets hit Frankie Rodriguez.                  One bullet that went

through his pulmonary artery was the cause of death.                   (Tpp. 1283,
                                       19

1297)     Dr. Garrett did not see any bruises on Rodriguez‟s head;

the absence of bruises was not consistent with the testimony of

some state‟s witnesses that Mr. Perez hit Rodriguez on the head

with the gun.       (Tpp. 1301-02)      Dr. Garrett said that Rodriguez

would    have   become   unconscious   in     30   to   60   seconds   after   the

shots, but that during that time, he would have been able to

continue an attack he had begun.            (Tpp. 1303-04)


                                  ARGUMENT

     I.     THE TRIAL COURT VIOLATED MR. PEREZ’S
            CONSTITUTIONAL RIGHTS BY ALLOWING THE STATE TO
            INTRODUCE EVIDENCE TO DEPICT MR. PEREZ AS A GANG
            MEMBER, WHERE NO EVIDENCE SHOWED THAT THE SHOOTING
            OF FRANKIE RODRIGUEZ WAS GANG-RELATED.
                  Assignment of Error No. 10 (Rpp. 103-04)
                  Assignment of Error No. 11 (Rp. 104)
                  Assignment of Error No. 14 (Rpp. 104-05)1
Introduction


     Mr. Perez is a young man who was born in the Dominican

Republic, grew up in New York City, and joined the Marines to

serve his adopted country.       The State introduced evidence for the

sole purpose of impeaching Mr. Perez‟s character witnesses by

trying to show that Mr. Perez was a member of a Hispanic gang

called the Latin Kings.       However, since no evidence showed that

the shooting of Frankie Rodriguez was gang-related, this evidence

was irrelevant and violated Mr. Perez‟s First and Fourteenth



     1
        Defendant has filed a Motion to Amend the Record on Appeal to add
another legal ground to these three assignments of error: that this evidence
also violated Mr. Perez‟s right to freedom of association under the First
Amendment to the United States Constitution (as applied to the states by the
Fourteenth Amendment).
                                   20

Amendment right to association under Dawson v. Delaware, 503 U.S.

159, 117 L.Ed.2d 309 (1992).


Standard of Review


    When a trial court admits evidence over objection, it

creates a question of law that is reviewable de novo on appeal.

State v. Bell, 164 N.C. App. 83, 87-88, 594 S.E.2d 824, 827

(2004).    A claim of constitutional error is a question of law

that is reviewable de novo.     State v. Thorne, ___ N.C. App. ___,

618 S.E.2d 790, 793 (2005).


Discussion


    At the outset, it is important to understand that Mr. Perez

denied that he had ever been a member of the Latin Kings.         (Tp.

1483)     Mr. Perez testified that the Latin Kings were a

significant presence in his area of New York, that his alleged

“gang name” (King Flesh) was not a gang name but rather a

nickname given to him in the Marines, that the Latin Kings

writings found in his car and barracks were not his, and that

posed photographs of Mr. Perez and other Marines with guns and

Latin King symbols were done in juvenile Marine jest -- that they

did not mean that he was a Latin King.    (Tp. 1539-54)     Mr.

Perez‟s friend, Marine Corporal Nickomar Santana, corroborated

Mr. Perez‟s testimony on this issue in detail.     (Tpp. 20346-73)


    More important, even if Mr. Perez had been a member of the

Latin Kings, that fact would be irrelevant to any issue in the
                                 21

case. Accordingly, as will be discussed shortly, the trial

court‟s introduction of evidence suggesting that Mr. Perez was a

member of the Latin Kings was constitutional error under Dawson

v. Delaware, supra.


    This issue arose three times during the trial.     First, the

trial court granted the State‟s motion in limine to cross-examine

a defense character witness, Marine Reserves Captain William

Arthur, about Mr. Perez‟s alleged gang affiliation.    (Tp. 1390)

Second, the trial court overruled Mr. Perez‟s objections to the

State‟s cross-examination of Captain Arthur about the alleged

gang affiliation.   (Tpp. 1398, 1405).   Third, the trial court

overruled Mr. Perez‟s objection to the State‟s cross-examination

of Officer James Gamel about Latin Kings material found in Mr.

Perez‟s car.   (Tp. 1634)


    As a threshold matter, defendant observes that these errors

were properly preserved for appeal.    On June 23, 2003, defense

counsel filed “Motion in Limine IX - Gang Association” (Rpp. 7-

9), in which counsel argued that any evidence of alleged gang

association of Mr. Perez was barred by Dawson v. Delaware, supra,

because “There is no evidence to show that the alleged murder and

related incidents in this case were in any way tied to gang

activity.”   (Rp. 7, paragraph 2).    Then, after discussion during

the trial among the court and counsel for both parties and

opposition by defense counsel, the trial court granted the
                                22

State‟s motion in limine to allow the State to cross-examine

Captain Arthur about the alleged gang affiliation.    (Tp. 1390)


    Under N.C. Gen. Stat. §8C-1, Rule 103(a)(2), as amended in

2003, the trial court‟s ruling during the trial in April 2005

allowing the State to cross-examine Captain Arthur about Mr.

Perez‟s alleged gang membership was sufficient to preserve this

error for appeal, and defense counsel did not have to renew his

objection to evidence about Mr. Perez‟s alleged gang membership

in order to preserve the claim of error for appeal.    Defendant

knows that on July 19, 2005, this Court declared that Rule

103(a)(2) violated the North Carolina Constitution.    State v.

Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005).   However,

beginning with State v. Tutt, supra, this Court has consistently

held under Rule 2 of the Rules of Appellate Procedure that errors

by trial courts concerning the admission of evidence are

preserved for appeal in cases in which defense counsel relied on

Rule 103(a)(2) before the Court‟s decision in Tutt.    See, e.g.,

State v. Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (2005).


    The trial court allowed the State to introduce a significant

amount of evidence about Mr. Perez‟s alleged gang affiliation.

The trial court allowed the State to cross-examine Captain Arthur

at length about portions of Mr. Perez‟s service record suggesting

that Mr. Perez was a member of the Latin Kings: the name King

Flesh and a five-pointed crown written inside Mr. Perez‟s

uniform, a copy of the Latin Kings Constitution, and photographs
                                 23

allegedly depicting Mr. Perez and friends as displaying gang

signs and colors.   (Tpp. 1398-99)    Later, over Mr. Perez‟s

objection, the trial court allowed the State to cross-examine

Officer Gamel about items concerning the Latin Kings found in Mr.

Perez‟s car: a notebook containing the Latin Kings constitution,

a notebook containing the statement, “Kings don‟t die, they

multiply” and a drawing of a crown, a Dominican Republic flag, a

necklace with a crown medallion, a yellow and black bandana, and

a necklace with yellow and black beads.    (Tpp. 1631-35)


    The State made sure to focus the jury‟s attention on Mr.

Perez‟s alleged gang affiliation through extended statements in

closing argument.   Assistant District Attorney Maultsby said,


         Then Mr. Santana and the whole black book
         issue, right. Mr. Santana comes in at the
         last second says “oh, the black book that was
         found in the defendant‟s car, that was mine.”
         Okay. The one with the gang affiliations.
         Let‟s talk about that for a minute. He tells
         you that he‟s had that book for six or seven
         years, and apparently he was doing a book
         report on the Latin Kings. Do they not have
         photocopiers in New York, folks? Isn‟t it
         ironic he still has it six or seven years
         later? And recall the defendant‟s testimony,
         I notice a lot of you were taking notes. Did
         the defendant say that black book belonged to
         Shawn from Idaho, not Mr. Santana? Now, you
         know the gang affiliation is not something
         that the State of North Carolina brought up
         in its case in chief. The way the law works
         is that the defendant is entitled to put on
         character evidence if the defendant wants to.
         We can‟t start that. They can. And the
         defendants usually are wise enough not to
         call people who know stuff about them that‟s
         damaging to their case. For instance, the
                                  24

         defendant called his former lieutenant to
         testify and it seemed that the lieutenant was
         quite surprised to find out the contents of
         this particular defendant‟s barracks room.
         The bottom line there is defendants often
         call people as character witnesses who don‟t
         know the full story. The defendant was
         vehement in his denial of his affiliation
         with the Latin Kings. He got up on the
         witness stand and told y‟all that. Yet, the
         black book happened to be in his car. The
         grafetti [sic] in the yellow book happened to
         be in his handwriting, the grafetti [sic]
         about the Latin Kings. He has beads hanging
         from his car window or car mirror that are
         Latin King beads. He had the yellow bandana
         with a metallic crown. He has a picture of
         himself or several pictures of himself in his
         dorm room at the barracks with Latin King
         beads around his neck, holding a shotgun in
         various positions. He has the Latin King
         constitution inside of his room. He calls
         himself King Flesh. You know, y‟all have got
         to evaluate the credibility of the witnesses,
         including the defendant. But that doesn‟t
         seem credible to me.

(Tpp. 2165-67)


    In Dawson v. Delaware, supra, the U.S. Supreme Court held

that the State‟s introduction of evidence of a defendant‟s

alleged gang affiliation violates the defendant‟s First Amendment

right to freedom of association unless the crime is in some way

gang-related.    Dawson applies squarely to this case.   Since no

evidence showed that the shooting of Frankie Rodriguez was gang-

related, the cross-examination of Captain Arthur and Officer

Gamel violated Mr. Perez‟s right to association under Dawson.


    In Dawson, a capital murder case, the State introduced

evidence (to which the defense stipulated only as an alternative
                                 25

to the State‟s proposed introduction of even more evidence about

gang membership) during the penalty phase that the Aryan

Brotherhood was a white racist prison gang with chapters in

Delaware prisons.   The state also introduced evidence that the

defendant had the words “Aryan Brotherhood” tattooed on his hand

and a related name sewn on his jacket.


    Writing for the Court, the late Chief Justice Rehnquist

emphasized that none of the evidence showed that Dawson‟s alleged

membership had any relevance to the sentencing proceeding.    Chief

Justice Rehnquist wrote that the First Amendment right of

association “prevents Delaware here from employing evidence of a

defendant‟s abstract beliefs at a sentencing hearing when those

beliefs have no bearing on the issue being tried.”    503 U.S. at

168, 117 L.Ed.2d at 319.   As Chief Justice Rehnquist observed,

both Dawson and the victim were white, so the Aryan Brotherhood‟s

racist beliefs had nothing to do with the killing.    503 U.S. at

166, 117 L.Ed.2d at 317-18.   Further, Dawson‟s alleged membership

in the gang was not relevant to help prove an aggravating

circumstance, such as future dangerousness, because no evidence

showed that the gang endorsed violence.


    Finally, Chief Justice Rehnquist expressly rejected the

State‟s argument that Dawson‟s membership in a racist gang was

relevant to rebut mitigating evidence introduced by Dawson about

his good character.   Chief Justice Rehnquist explained that mere

membership in the gang did not prove bad character.    See also
                                26

United States v. Stitt, 250 F.3d 878, 897 n.21 (4th Cir. 2001),

cert. denied, 535 U.S. 855, 152 L.Ed.2d 855 (2002) (trial court

erred by allowing the government to introduce certain evidence to

rebut defendant‟s mitigating evidence in sentencing hearing,

where government‟s evidence was not relevant to the mitigation).


    Chief Justice Rehnquist contrasted Dawson with an earlier

decision by the Court, Barclay v. Florida, 463 U.S. 939, 77

L.Ed.2d 1134 (1983), in which a plurality of the Court concluded

that evidence of Barclay‟s membership in the Black Liberation

Army and of his desire to start a race war were admissible in a

capital sentencing hearing for the murder of a white hitchhiker.

503 U.S. at 166, 117 L.Ed.2d at 317-18.   See also State v. Ruof,

296 N.C. 623, 252 S.E.2d 720 (1979) (where defendant was charged

with fatal shooting in a motorcycle gang bar, defendant‟s

membership in gang was admissible because the defendant‟s gang

clothing supported the identification of the defendant as the

killer and because it showed the motive for the shooting - to

react to the victim‟s encroachment on the gang‟s turf); State v.

Hightower, 168 N.C. App. 661, 609 S.E.2d 235, review denied, 359

N.C. 639, 614 S.E.2d 533 (2005) (defendant‟s gang membership

admissible to show defendant‟s motive for robbery-murder, where

defendant had to commit a robbery to join the gang).


    In this case, Mr. Perez‟s alleged membership in the Latin

Kings had no relevance to the shooting of Frankie Rodriguez.

There was no evidence that Rodriguez‟s threats to Mr. Perez had
                                 27

anything to do with the Latin Kings, and there was no evidence

that Mr. Perez‟s act of shooting Rodriguez was related in any way

to the Latin Kings.   The only evidence about the nature of their

conflict was Rodriguez‟s anger about Mr. Perez‟s former

relationship with Shannon Diaz and Rodriguez‟s anger about Mr.

Perez‟s statement that he would call the police.


    Moreover, as in Dawson, Mr. Perez‟s alleged gang membership

was not relevant to rebut the testimony about Mr. Perez‟s good

character for peacefulness, honesty, and law-abidingness.

Despite the aura of menace insinuated by the prosecutors, no

evidence showed that membership in the Latin Kings conflicted

with testimony about Mr. Perez‟s peacefulness, honesty, and law-

abidingness.   The State did not introduce any evidence showing

that membership in the Latin Kings was linked to violence,

dishonesty, or law-breaking.


    Since the trial court committed constitutional error by

allowing the State to introduce evidence about Mr. Perez‟s

alleged gang membership, the error requires reversal of Mr.

Perez‟s conviction unless the State can prove that the error was

harmless beyond a reasonable doubt.   The State cannot satisfy

this burden because the evidence was strongly prejudicial.


    The State‟s vigorous efforts to persuade the trial court to

allow this evidence shows how important the State thought it was.

The State made sure to emphasize the evidence through lengthy

cross-examination of Captain Arthur, Mr. Perez, and Corporal
                                 28

Santana about Mr. Perez‟s alleged membership in the Latin Kings.

Also, as shown above, the State discussed this evidence at length

in closing argument.   Having put so much emphasis on this

evidence during the trial, the State cannot credibly claim on

appeal that the evidence was harmless beyond a reasonable doubt.


    In addition, this case was a close case on self-defense that

turned on the jury‟s assessment of the credibility of the State‟s

witnesses and the credibility of Mr. Perez and his witnesses.

The State sought to portray Mr. Perez as a violent man who

intentionally crashed into Frankie Rodriguez‟s car and shot him

with little or no provocation.


    Mr. Perez presented a much different account of the shooting

and the events leading up to it: that Frankie Rodriguez was a

jealous and suspicious man who repeatedly threatened to kill Mr.

Perez and twice confronted him to start a fight, that Mr. Perez

was afraid of Rodriguez, that Rodriguez -- armed with a knife --

hunted Mr. Perez down on September 3, 2002 to fight him, that

Rodriguez used the Neon to block Mr. Perez‟s and Ms. Rivera‟s

attempts to leave the shopping center, that Rodriguez caused the

collision by suddenly stopping the Neon, and that Rodriguez moved

his hand toward his waist when he got out of the Neon.


    As shown above, the state expressly urged the jury during

closing argument to consider Mr. Perez‟s alleged gang membership

in determining the credibility of the parties‟ accounts.     Even

though alleged gang membership had no relevance to any issue in
                                   29

the case, the State sought to impugn Mr. Perez‟s character by

playing on the vague but palpable sense of menace that most

people, including lay jurors, have about gangs -- without any

evidence that membership in the Latin Kings would refute

character evidence about Mr. Perez‟s peacefulness, honesty, and

law-abidingness.


    The State violated Mr. Perez‟s constitutional right of

association smearing him with the irrelevant but prejudicial

allegation of gang membership.   The trial court violated Mr.

Perez‟s constitutional right of association by letting the State

get away with that strategy.   In light of this constitutional

error, Mr. Perez asks the Court to reverse his conviction and to

remand the case for a fair trial.


    II.   THE TRIAL COURT COMMITTED PLAIN ERROR BY
          INSTRUCTING THE JURY THAT THE DEFENDANT HAD THE
          BURDEN OF PROVING SELF-DEFENSE AND DEFENSE OF A
          THIRD PARTY BEYOND A REASONABLE DOUBT.
               Assignment of Error No. 24 (Rp. 107)

Introduction


    North Carolina law puts the burden of persuasion on the

State to disprove self-defense or defense of a third party beyond

a reasonable doubt.   State v. Potter, 295 N.C. 126, 143-44, 244

S.E.2d 397, 408-09 (1978); State v. Hankerson, 288 N.C. 632, 641-

52, 220 S.E.2d 575, 583-89 (1975), reversed on other grounds, 432

U.S. 233, 53 L.Ed.2d 306 (1977).    The trial court committed plain

error by instructing the jury that Mr. Perez had the burden of
                                   30

proving self-defense or defense of a third party -- and that Mr.

Perez had to do so beyond a reasonable doubt.


Standard of Review


    If a defendant in a criminal case claims that the trial

court gave an erroneous instruction, but the defendant did not

object to the instruction at trial, the appellate court conducts

plain error review.   State v. Odom, 307 N.C. 655, 300 S.E.2d 375

(1983); State v. Goforth, 170 N.C. App. 584, 587, 614 S.E.2d 313,

315, cert. denied, 359 N.C. 854, 619 S.E.2d 854 (2005).


Discussion


    As the trial court observed during the charge conference,

there are no pattern jury instructions for a first-degree murder

case in which the State proceeds on both felony murder and

premeditated and deliberate murder and the defendant contends

that he killed the deceased in self-defense or in defense of a

third party.   (Tpp. 2100, 2103)   The trial court tried to fashion

jury instructions that would cover these charges and defenses by

“plugging” the pattern jury instruction for self-defense in an

assault case involving use of a deadly weapon (N.C.P.I. -- Crim.

-- 308.45) into the pattern instructions for felony murder, and

than plugging those instructions into the pattern instruction for

first-degree premeditated murder, second-degree murder, voluntary

manslaughter, and acquittal on the ground of self-defense or

defense of a third party (206.10).      (Tpp. 2102-09)
                                  31

    The problem with the trial court‟s proposed solution is that

308.45 contains a serious constitutional flaw: although North

Carolina law requires the State to disprove self-defense or

defense of a third person beyond a reasonable doubt, 308.45

expressly and mistakenly places the burden of persuasion on the

defendant to prove self-defense and defense of a third party --

and 308.45 also expressly states that the defendant must prove

those defenses beyond a reasonable doubt.   When the trial court

plugged 308.45 into 206.10, the constitutional error in 308.45

infected 206.10.   As a result, the trial court erroneously

instructed the jury that Mr. Perez had the burden of proving       --

and proving beyond a reasonable doubt -- that he had killed

Frankie Rivera in self-defense or in defense of Ms. Rivera.


    Since the trial court gave the jury both oral and written

instructions, the error was aggravated.   Copies of the trial

court‟s oral and written instructions and of 308.45 are included

in the Appendix to this brief.    The oral instructions also appear

at Tpp. 2244-77 and Rpp. 28-61.    The written instructions also

appear at Rpp. 62-85.


    Since defense counsel did not object to this aspect of the

jury instructions, Mr. Perez raises this issue as plain error.

This error satisfies the stiff criteria for plain error because

instructions on the burden of persuasion in a criminal case

involves a fundamental issue (State v. Faulkner, 241 N.C. 609, 86

S.E.2d 81 (1955)), the error pertained to the central issues in
                                 32

the case of self-defense and defense of a third party, and this

was such a closely contested case on self-defense and defense of

a third party.


    The error in 308.45 occurs in the second paragraph:


         If from the evidence you find beyond a
         reasonable doubt that the defendant assaulted
         the victim with deadly force; that is, force
         likely to cause death or great bodily harm
         and that the circumstances would have created
         a reasonable belief in the mind of a person
         of ordinary firmness that the assault was
         necessary or apparently necessary to protect
         himself from death or great bodily harm, and
         the circumstances did create such belief in
         the defendant‟s mind at the time he acted,
         such assault would be justified by self-
         defense.

         The error is clear: 308.45 instructs the jury that

self-defense justifies an assault only if the jury finds beyond a

reasonable doubt


         that the circumstances would have created a
         reasonable belief in the mind of a person of
         ordinary firmness that the assault was
         necessary or apparently necessary to protect
         himself from death or great bodily harm, and
         the circumstances did create such belief in
         the defendant‟s mind at the time he acted. .
         . .

    In other words, instead of telling the jury that the State

must disprove beyond a reasonable doubt that the defendant

reasonably believed that he had to act to defend himself, the

instruction does the opposite.   It tells the jury that self-

defense applies only if it is proved beyond a reasonable doubt

that the defendant reasonably believed he had to act to defend
                                  33

himself.   Thus, 308.45 instructs the jury that the defendant has

the burden of proving self-defense beyond a reasonable doubt.


    Unfortunately, the trial court incorporated 308.45 verbatim

in both the oral and written instructions on self-defense as a

defense to felony murder.    See App. 9, line 19 - App. 10, line 4;

Tp. 2252, line 19 - Tp. 2253, line 4; Rp. 36, line 19 - Rp. 37,

line 4; App. 41, second paragraph; and Rp. 68, second paragraph.


    Next, the trial court adapted 308.45 -- including the error

about the burden of persuasion -- in its instructions on defense

of a third party as a defense to felony murder.       See App. 11,

line 21 - App. 12, line 5; Tp. 2254, line 21 - Tp. 2255, line 5;

Rp. 38, line 21 - Rp. 39, line 5; App. 42, third paragraph; and

Rp. 69, second paragraph.


    Finally, the trial court referred back to its erroneous

instructions based on 308.45 when it instructed the jury about

self-defense and defense of a third person as defenses to “any

murder or manslaughter.”    The trial court stated,


           The defendant would not be guilty of any
           murder or manslaughter if he acted in self
           defense or in defense of a third person, as
           I‟ve just defined that defense to be, and if
           he was not an aggressor in bringing on the
           fight and did not use excessive force under
           the circumstances.

See App. 18, lines 11-16, Tp. 2261, lines 11-16, Rp. 45, lines

11-16, App. 47, second paragraph; and Rp. 74, second paragraph

(emphasis added).
                                 34

    In all, the trial court expressly instructed the jury four

times that Mr. Perez had the burden of proving that he was

justified in using defensive force: once in the oral instructions

and once in the written instructions for self-defense, and once

in the oral instructions and once in the written instructions for

defense of a third party.   Those four errors infected the trial

court‟s instructions on self-defense and defense of a third party

as defenses to the crime for which Mr. Perez was convicted --

second-degree murder -- when the trial court referred back to its

earlier definitions of defensive force in its instructions about

defensive force as a defense to “any murder or manslaughter”

(emphasis added).


    Mr. Perez knows that the trial court also correctly

instructed the jury several times that the State had the burden

of disproving self-defense and defense of a third party.

However, under State v. Harris, 289 N.C. 275, 280, 221 S.E.2d

343, 347 (1976), the correct instructions cannot cure the error.

In Harris, the trial court incorrectly put the burden of proof on

the defendant to prove the defense of accident.    The Supreme

Court held that “where the court charges correctly at one point

and incorrectly at another, a new trial is necessary because the

jury may have acted upon the incorrect part.”     Id.   The Court in

Harris then emphasized the gravity of the error when the

incorrect instructions pertain to the burden of proof: “Moreover,

an erroneous instruction on the burden of proof is not ordinarily

corrected by subsequent correct instructions on the point.”      Id.
                                   35

    The trial court‟s errors amounted to plain error. As

discussed above, it is fundamental error for a trial court to

incorrectly impose the burden of proof about on issue on a

defendant.   In this case, the trial court committed that error

four times expressly and twice by clear cross-reference.     In

addition, the errors pertained to the central issues in the case

of self-defense and defense of a third party.    Finally, this was

such a closely contested case on self-defense and defense of a

third party that by repeatedly placing the burden on Mr. Perez to

prove self-defense or defense of Ms. Rivera beyond a reasonable

doubt, the instructions probably led the jury to convict Mr.

Perez of second-degree murder rather than acquit him or convict

him of voluntary manslaughter.    Accordingly, Mr. Perez asks this

Court to reverse his conviction and to order a new trial.


                             CONCLUSION

    For the reasons set forth above, defendant respectfully asks

the Court to reverse his conviction and to order a new trial.


    Respectfully submitted this the 21st day of July, 2006.

                                 ___________________________________
                                 Benjamin Dowling-Sendor
                                 Assistant Appellate Defender
                                 ben.dowling.sendor@nccourts.org

                                 Staples Hughes
                                 Appellate Defender
                                 Office of the Appellate Defender
                                 123 West Main Street, Suite 500
                                 Durham, North Carolina 27701
                                 (919) 560-3334, ext. 147

                                 ATTORNEYS FOR DEFENDANT
                               36



                     CERTIFICATE OF SERVICE

     I hereby certify that a copy of the above and foregoing
Defendant-Appellant‟s Brief has been duly served upon Mr. Robert
C. Montgomery, Special Deputy Attorney General, North Carolina
Department of Justice, Post Office Box 629, Raleigh, North
Carolina 27602-0629, by first-class mail, postage prepaid.

    This the 21st day of July, 2006.


                             ___________________________________
                             Benjamin Dowling-Sendor
                             Assistant Appellate Defender

				
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