State v. Brown

Judge Lewis

concurring in part, dissenting in part.

I respectfully dissent from that part of the opinion which holds that the failure to instruct on the “no duty to retreat” doctrine violates *243the defendant’s constitutional rights. The majority cites State v. Marshall, 105 N.C. App. 518, 414 S.E.2d 95, disc. review denied, 332 N.C. 150, 419 S.E.2d 576 (1992), and State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994), to support its conclusion. However, I do not believe that those cases control here. In Camacho, the Supreme Court recently held that the failure to instruct on a lesser included…