Is a battered woman who kills her sleeping husband entitled to a jury instruction on perfect or imperfect self-defense where the evidence shows a history of severe abuse and her subjective belief that future harm was inevitable, but no threat of imminent death or great bodily harm existed at the time of the killing?

Judy Norman (defendant) was married to John Thomas Norman for almost twenty-five years. Her evidence showed that he began drinking and abusing her about five years into the marriage. The abuse included slapping, punching, kicking, striking her with objects, putting cigarettes out on her, throwing hot coffee and glass at her, forcing her to prostitute herself, calling her degrading names, making her eat pet food and sleep on the floor, depriving her of food, and repeatedly threatening to kill or maim her. Her evidence showed the abuse intensified over the two days before his death, including after he was released from jail on a DWI charge. Deputies had been called to the home the prior evening, and Norman attempted suicide by overdosing on pills. On 12 June 1985, after her husband fell asleep, she took her grandchild to her mother's house, took a pistol from her mother's purse, returned, and fixed the gun after it jammed. She shot him in the back of the head, confirmed he was still breathing, and shot him twice more. She told a deputy she had taken all she was going to take from him. Two expert witnesses testified that she fit the profile of battered wife syndrome and that killing her husband appeared reasonably necessary to her.

Norman was tried in Rutherford County Superior Court on an indictment for first degree murder of her husband. The trial court refused to instruct the jury on self-defense. The jury convicted her of voluntary manslaughter, and she was sentenced to six years imprisonment. She appealed to the North Carolina Court of Appeals, which granted a new trial on the ground that the trial court erred by refusing to submit a verdict of acquittal by reason of perfect self-defense. The State sought review, and the North Carolina Supreme Court heard the case.

(Mitchell, J.)

No. A defendant is entitled to a self-defense instruction, perfect or imperfect, only where the evidence, viewed in the light most favorable to her, shows that at the time of the killing she reasonably believed it necessary to kill to save herself from imminent death or great bodily harm. State v. Gappins, 320 N.C. 64 (1987). That belief must be one a person of ordinary firmness would hold. Killing is justified only by the utmost real or apparent necessity, and the imminence requirement keeps the justification rooted in necessity and ensures deadly force is a last resort.

"Imminent" means immediate danger that must be instantly met and cannot be guarded against by calling for help or the protection of the law. Here, the husband was asleep. Norman left, went to her mother's house, retrieved a pistol, fixed it after it jammed, and shot him three times in the back of the head. She faced no instantaneous choice between killing and being killed. She had ample time and opportunity to resort to other means, and no assault was underway or imminent. As in State v. Mize, 316 N.C. 48 (1986), where the defendant was in no imminent danger while the decedent slept, the same reasoning applies here, so any belief that killing was necessary was unreasonable.

The expert testimony that killing appeared "reasonably necessary," that she felt "doomed," and that death was "inevitable" described speculative fears about an indefinite future, not a fear of imminent harm. A subjective belief about what is inevitable is not the same as a belief about what is imminent.

The Court of Appeals' approach would redefine "imminent" more indefinitely, rest justification on subjective predictions of future assaults, and risk legalizing opportune killings. The evidence also did not show prior abuse reaching life-threatening levels. Because the jury convicted only of voluntary manslaughter, which is the minimum result of imperfect self-defense, any error as to that instruction was harmless. The Court of Appeals is reversed.

Dissent (Martin, J.) The evidence, viewed in the light most favorable to Norman, satisfies each element of self-defense and required an instruction. Evidence of twenty years of abuse, expert testimony that she was a battered spouse who believed escape was impossible, and lay testimony of escalating violence over the final three days support her belief that killing was necessary and that the belief was reasonable to a person of ordinary firmness. "Imminent" must be informed by the defendant's perceptions and all the circumstances, not merely measurable time. A battered woman lives in constant terror, so the next attack, possibly fatal, is always imminent; the proper question is whether her belief in the impending threat was reasonable. The husband remained the aggressor in a continuing affray, unlike the new confrontation in Mize (though the majority held Mize's reasoning applies here), and her passivity supports that the force used was not excessive. The defendant does not seek to relax self-defense law, and the State always bears the burden of proving an unjustified intentional killing. The majority answered that the Court of Appeals' approach would change the established meaning of "imminent" and substantially relax the requirement of real or apparent necessity. Where evidence of self-defense could raise a reasonable doubt, the jury must receive the instruction.