Court of Appeals Rules on Pretrial Self-Defense Immunity Hearings – North Carolina Criminal LawNorth Carolina Criminal Law
Last month, the Court of Appeals decided State v. Austin, ___ N.C. App. ___, 2021-NCCOA-494 (Sept. 21, 2021), and a summary of the opinion is available here. Austin addressed several noteworthy self-defense issues, including the sufficiency of the state’s evidence to rebut the presumption of reasonable fear under the “castle doctrine” statutes added in 2011 and whether the trial court’s jury instructions on that issue were proper.
But first, the court had to decide whether the statutory language conferring “immunity from liability” meant that the defendant was entitled to have this issue resolved by the judge at a pretrial hearing. That’s a question I’ve been asked fairly often over the past few years, and my sense is that prior to Austin there were divergent practices on this point around the state.
This post takes a closer look at that portion of the court’s opinion, and explores what we now know and what we still don’t.
Background Issues and Austin
My colleague John Rubin previously wrote an excellent blog post summarizing this issue, which you can revisit here. As his post explains in more detail, G.S. 14-51.2(e) and G.S. 14-51.3(b) provide that a person who uses force as permitted under the statutes in defense of self or others, or in defense of the home, workplace, or vehicle, is “justified in using such force and is immune from civil or criminal liability for the use of such force.” In most other states with similar statutes, their courts have consistently interpreted these statutes to mean that the defendant has a right to a pretrial hearing and a judicial determination of the immunity issue. However, unlike in North Carolina, most of those other states provide immunity from prosecution, rather than immunity from liability. John’s post presciently noted back in 2016 that it was unclear whether that difference in phrasing might be legally significant, and therefore our state’s “self-defense immunity provision raises several questions, which await further answers.”
Austin has now answered the pretrial hearing question in the negative, holding that the trial court did not err by declining to conduct such a hearing on the defendant’s claim of statutory immunity under G.S. 14-51.2(e). The court noted that “traditional immunity” means that a defendant is not merely protected from having a judgment entered against him, but rather that he has “a right not to be forced into court” to defend himself in a trial at all. The court cited several examples of other criminal statutes that confer or address this type of immunity (G.S. 14-205.1, 15A-954(a)(9), 15A-1051, 75-11, 90-96.2, and 90-113.27), and pointed out that those statutes are all couched in terms of immunity from prosecution. By contrast, the castle doctrine statutes only provide immunity from liability, which means that the “immunity is from a conviction and judgment, not the prosecution itself.” This conclusion was reinforced by the fact that, unlike traditional immunity provisions, the immunity conferred under the castle doctrine statutes typically involves “deeply fact-intensive questions” that must be resolved by the jury. Therefore, the court held, “where, as here, the trial court determined that there were fact questions concerning the applicability of the castle doctrine defense, the trial court properly permitted the case to proceed to trial so that a jury can resolve those disputed facts.”
So far, I haven’t offered very much that you didn’t already know from reading the case itself or the earlier blog posts. Let’s dig a little deeper.
Is North Carolina all alone in taking this view?
Not quite. As noted above, there is a broad consensus among other castle doctrine states that a pretrial hearing before the judge is required, but those states generally confer immunity from prosecution rather than liability. To date, I am aware of one other state (Iowa) with immunity statutes more closely analogous to North Carolina’s and whose courts have adopted an interpretation similar to Austin. In fact, the Iowa Supreme Court referenced North Carolina’s statutes in reaching its conclusion that a pretrial hearing was not required:
This case is our attempt to resolve another open question under the 2017 “stand your ground” legislation. […] On appeal, the defendant argues that Iowa Code section 704.13 entitled him to a pretrial evidentiary hearing where he could have presented his justification defense and been vindicated without need for a trial. See Iowa Code § 704.13. We conclude, however, that the 2017 legislation does not require pretrial hearings. Significantly, section 704.13 provides an immunity from “liability,” id., not an immunity from “prosecution” as in some other states with stand-your-ground laws. […] Other state laws, similar to Iowa’s, do not afford immunity from criminal prosecution. In North Carolina, the statute uses the phrase “immune from civil or criminal liability.” N.C. Gen. Stat. Ann. § 14-51.3(b)[….] In any event, Iowa did not opt for the “prosecution” language that has generally been interpreted as affording a right to a pretrial hearing.
State v. Wilson, 941 N.W.2d 579 (Iowa 2020). In other words, it’s undoubtedly a minority view, but perhaps less strikingly so once the different wording of the statutes is taken into account.
Is this really the first case we’ve ever had on this issue?
For the most part, yes. These statutes have been around for ten years, but until last month there was no clear North Carolina appellate guidance on this point. During several case updates last year, I incorrectly predicted that we might get an answer to this question in State v. Fernandez, __ N.C. App. __, 852 S.E.2d 447 (2020), a case that raised many of the same arguments. But Fernandez was issued as an unpublished decision, and the court held that it did not need to resolve the matter because even if the defendant was entitled to a pretrial hearing, he waived it:
The State contends North Carolina General Statutes §§ 15A-51.2-.3 do not “mandate a pretrial determination” of immunity. The State is correct that “[b]oth statutes are silent about the procedure for raising immunity.” See N.C. Gen. Stat. §§ 15A-51.2-.3. But since Defendant waived any potential right to a pretrial determination of immunity, we need not address the proper procedure for determining immunity prior to trial.
In another interesting twist, Austin actually began its appellate journey back in 2017, more than two years before the defendant in Fernandez was convicted. The defendant in Austin sought interlocutory review of the trial court’s order denying her request for a pretrial immunity hearing and motion to dismiss. After the Court of Appeals denied the defendant’s petitions for writ of mandamus and writ of certiorari, the state Supreme Court initially allowed a petition for writ of certiorari in December of 2017 to review the appellate court’s denial (370 N.C. 378), but then reversed course in a per curiam decision in September of 2018 and concluded that cert had been improvidently allowed (371 N.C. 465). The Court of Appeals opinion being discussed here arose out of the defendant’s subsequent conviction at trial in May of 2019.
If you’re a fan of appellate procedural labyrinths or interpreting tea leaves, those details may be intriguing. For everyone else, the short answer is yes — this is basically our first direct guidance on the issue.
So is the issue finally settled now?
Not just yet, for a few reasons. First, under Rule 32 of the Rules of Appellate Procedure, the court’s mandate normally issues 20 days after the opinion is published, unless the court orders otherwise. The defendant in Austin filed a motion last week requesting a rehearing en banc and asking that the court stay the issuance of its mandate until the motion is resolved. In addition to challenging the court’s rulings on the issue of rebutting the statutory presumption of reasonableness, the defendant’s motion argues that the pretrial hearing issue is one of “exceptional importance” that warrants en banc review. And, of course, depending on how the Court of Appeals rules on that motion, the defendant might once again choose to seek discretionary review at the state Supreme Court. I’m not expressing an opinion about the merits of those arguments or speculating about how either court might respond, but simply pointing out that as of the time of this writing (and potentially as of the time that many of us are participating in case updates later this month), there is still a possibility that the final outcome will be different.
Even if the current Austin opinion stands unaltered, there are some lingering issues that may arise in future cases. For example, the court said that it was appropriate to have the statutory immunity issue decided by the jury “where, as here, the trial court determined that there were fact questions concerning the applicability of the castle doctrine defense.” One could imagine a situation, however rare, where the relevant facts are not in dispute and the applicability of statutory self-defense immunity turns solely on a legal determination, such as whether a particular location qualifies as being within the curtilage of the home. That wasn’t the issue before the court in Austin, but the limiting introductory phrase used in the opinion may indicate that a separate hearing before the judge would be the appropriate procedure in such cases.
Furthermore, if it’s correct that there are still some types of criminal cases in which statutory self-defense immunity should be decided by the judge at a hearing rather than by the jury at a trial, when should that hearing be held? G.S. 15A-952(f) states that “when a motion is made before trial, the court in its discretion may hear the motion before trial, on the date set for arraignment, on the date set for trial before a jury is impaneled, or during trial.” A key holding in Austin was the court’s conclusion that the castle doctrine statutes only provide a defendant with immunity from conviction and judgment, not immunity from undergoing a trial at all. So it seems that it would still be within the trial judge’s discretion to conduct the hearing at some later point “during trial,” such as after all the evidence has been presented, but it may be just as much within the judge’s discretion to conduct that hearing “before trial” if she chooses.
Will the Austin opinion stand as currently issued? Are there still some criminal cases in which a separate hearing before the judge would be appropriate? If so, what exactly is the test for distinguishing between the two? When should that hearing be held? Additionally, to circle back to John Rubin’s earlier post, if the trial court does conduct such a hearing, what are the procedural rules and the parties’ respective burdens of proof? I’m afraid those are all questions which continue to “await further answers,” but with this latest case we finally seem to be getting a little closer to finding out.