STATE OF NORTH CAROLINA v. WILLIAM SPENCER MCCOWAN

Defendant William McCowan appeals his conviction for second degree murder.

McCowan got into an argument with the victim in the parking lot of an apartment

complex, went to a nearby apartment, retrieved a large steak knife, and returned to

the argument. Then, after the victim shoved him, he stabbed the victim and killed

him. On appeal, McCowan asserts that the trial court committed plain error by

admitting the testimony of the law enforcement officer who drove McCowan to jail.

That officer testified, without objection, that McCowan suddenly became angry,

called him the “N” word, and threatened to have his brother “take care of” the officer.

As explained below, in light of the substantial evidence supporting McCowan’s

conviction, he cannot satisfy the high burden of showing that admission of this

testimony amounted to plain error, even assuming it was error at all.

McCowan also argues that the trial court erred by failing to instruct the jury

on the common law “stand your ground” defense, which, according to McCowan,

permitted him to “repel force with force” because the victim shoved or hit him “in an

area where he had a right to be.” As explained below, we reject this argument because

our Supreme Court has held that in areas outside the defendant’s home, place of

business, or other private property, deadly force may not be used to respond to non

deadly force. The evidence in this case did not support McCowan’s requested

instruction in light of that precedent, and thus the trial court properly declined to

give it. Accordingly, we find no error in McCowan’s conviction.

Facts and Procedural History

Late at night on 13 December 2013, Defendant William McCowan and his

friend, Barry Egerton, encountered the victim, Steven Dockery, on a street in Raleigh.

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Dockery asked McCowan and Egerton if they could help him buy some cocaine. The

two took Dockery to a nearby apartment complex to buy drugs.

After arranging to buy $30 of crack cocaine for Dockery, McCowan and Dockery

got into a dispute. McCowan went back into the apartment and returned with a large

steak knife. Once outside, McCowan and Dockery continued their argument.

Dockery eventually shoved McCowan and McCowan then stabbed Dockery in the

stomach with the steak knife. Dockery stumbled back and walked off. Egerton

witnessed this altercation, but did not notice any injuries to McCowan after the

altercation concluded.

After Dockery walked off, McCowan and Egerton came across him again,

laying on his back in a patch of grass on the side of the road. McCowan kept walking

and told Egerton to “come on.”

Police later discovered Dockery in that same spot. They summoned EMS

personnel, who found a single stab wound to Dockery’s lower left abdomen. Dockery

ultimately died from the stab wound while being treated at a nearby hospital.

McCowan spoke to his father about the stabbing the following morning. At his

father’s suggestion, McCowan contacted law enforcement that evening and he was

later arrested.

The State charged McCowan with first degree murder. The case went to trial.

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At trial, Officer Omar Abdullah testified that he picked McCowan up and drove

him to be interviewed by detectives the day after the stabbing. After the interview,

Officer Abdullah drove McCowan to Wake County Jail. Officer Abdullah testified

that on the way to the jail, without any provocation, McCowan became agitated and

called him the “N” word. McCowan also threatened to have his brother “take care of”

Abdullah. McCowan did not object to this testimony at trial.

During the charge conference, McCowan requested the following jury

instruction concerning McCowan’s right to stand his ground and lawfully defend

himself:

If the defendant was not the aggressor and the defendant was [in the defendant’s own home] [on the defendant’s own premises] [in the defendant’s place of residence] [at the defendant’s workplace] [in the defendant’s motor vehicle] [at a place the defendant had a lawful right to be], the defendant could stand the defendant’s ground and repel force with force regardless of the character of the assault being made upon the defendant. However, the defendant would not be excused if the defendant used excessive force.

The trial court declined to give McCowan’s requested instruction. The jury

found McCowan guilty of second degree murder and McCowan timely appealed.

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Analysis

I. Admission of evidence

McCowan first argues that the trial court plainly erred in admitting Officer

Abdullah’s testimony that McCowan became angry, called him the “N” word, and

threatened to have his brother “take care of” Abdullah. We disagree.

McCowan did not object to the challenged testimony and concedes that we

must review this issue for plain error. “For error to constitute plain error, a defendant

must demonstrate that a fundamental error occurred at trial.” State v. Lawrence, 365

N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “To show that an error was fundamental,

a defendant must establish prejudice—that, after examination of the entire record,

the error had a probable impact on the jury’s finding that the defendant was guilty.”

Id. Plain error should be “applied cautiously and only in the exceptional case” where

the error “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id.

Here, even if the trial court abused its discretion in admitting Officer

Abdullah’s testimony—and we are not at all convinced that it did—McCowan cannot

show that this evidence had a probable impact on the jury’s verdict. At trial,

McCowan did not dispute that he stabbed and killed Dockery. He sought to avoid a

murder conviction by asserting a claim of self-defense and arguing that he was guilty

only of the lesser offense of manslaughter. But the evidence showed that McCowan

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argued with Dockery, left and returned armed with a knife, and continued to argue

with him. He then stabbed Dockery after Dockery shoved him. An eyewitness

testified that Dockery never threatened McCowan with any deadly force and did not

prevent him from freely leaving the parking lot area where the argument occurred.

In light of this evidence, we cannot say that, but for the admission of Officer

Abdullah’s testimony, the jury probably would have reached a different result.

Accordingly, we find no plain error in the trial court’s admission of the challenged

testimony.

II. Denial of a “stand your ground” instruction

McCowan next argues that the trial court erred in denying his request for an

instruction that he had a right to stand his ground and “repel force with force”

because Dockery shoved him “in an area where he had a right to be.” As explained

below, we find no error in the trial court’s ruling.

“This Court reviews assignments of error regarding jury instructions de novo.”

State v. Pender, 218 N.C. App. 233, 243, 720 S.E.2d 836, 842 (2012). A trial court

ordinarily must give an instruction requested by the defendant when that instruction

is a correct statement of the law and supported by the evidence. State v. Corn, 307

N.C. 79, 86, 296 S.E.2d 261, 266 (1982).

The flaw in McCowan’s argument is that his requested instruction was not

supported by the evidence. Importantly, McCowan does not rely on the statutory

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“stand your ground” defense set out in N.C. Gen. Stat. § 14-51.2A. Instead, McCowan

relies on the common law concerning the right to defend oneself and the duty to

retreat. On this common law defense, our Supreme Court has held that “where the

person attacked is not in his own dwelling, home, place of business, or on his own

premises, then the degree of force he may employ in self-defense is conditioned by the

type of force used by his assailant.” State v. Pearson, 288 N.C. 34, 43, 215 S.E.2d 598,

605 (1975). Under Pearson, deadly force may not be used to respond to non-deadly

force in areas outside a home, place of business, or other private property. Id.

Here, eyewitness testimony established that McCowan argued intensely with

the victim either in a public street or a large, open parking lot of an apartment

complex connected to a public street. McCowan then left for a nearby apartment,

returned armed with a knife, and voluntarily resumed that argument. At that point,

the victim shoved McCowan and McCowan stabbed him. The only competing

evidence came from the testimony of McCowan’s father. According to McCowan’s

father, McCowan told him (the day after the incident) that the victim hit McCowan

before McCowan went to the apartment to retrieve the knife and then hit him again

after McCowan returned with the knife, at which point McCowan stabbed the victim.

Under either version of events, McCowan failed to establish the necessary

perquisites under Pearson to authorize him to stand his ground and respond with

deadly force. The evidence showed that McCowan was in a public place, was faced

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with non-deadly force, and had the ability to retreat. Accordingly, the trial court did

not err in refusing to give his requested instruction concerning the common law right

to stand your ground and respond with deadly force.

For the reasons discussed above, we hold that the trial court did not commit

plain error in admitting Officer Abdullah’s testimony and that it did not err in denying McCowan’s requested “stand your ground” instruction.

NO PLAIN ERROR IN PART; NO ERROR IN PART.