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March 18, 2026 Get Citation Alerts Download PDF Add Note

State v. Mitchell

Court of Appeals of North Carolina

• Citations: None known
• Docket Number: 25-386

• Precedential Status: Non-Precedential

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (9.8K)

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Syllabus

inclusion of aggressor doctrine jury instruction; motion for mistrial; use of evidence during closing argument.

Combined Opinion

                        by Judge Fred Gore

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-386

Filed 18 March 2026

Guilford County, No. 21CR070431-400

STATE OF NORTH CAROLINA

v.

THOMAS WILLIAM MITCHELL, Defendant.

Appeal by defendant from judgment entered 31 May 2024 by Judge Michael D.

Duncan in Guilford County Superior Court. Heard in the Court of Appeals 29 October

2025.

Attorney General Jeff Jackson, by Special Deputy Attorney Generals Daniel P.
O’Brien and Keith T. Clayton, for the State-appellee.

Christopher J. Heaney for defendant-appellant.

GORE, Judge.

Defendant Thomas William Mitchell appeals the judgment entered against

him for voluntary manslaughter. Defendant appeals of right pursuant to N.C.G.S. §

15A-1444(a). Upon reviewing the briefs and the record, we discern no error.

I.

On the evening of 21 March 2021, defendant was at Ucola Whitworth’s house
STATE V. MITCHELL

Opinion of the Court

with Whitworth and the decedent, Keith Shepard, drinking beer and smoking

marijuana around a fire-pit, as was common for them to do. Defendant and the

decedent knew each other since 2018 and would often spend time together at

Whitworth’s home. On that evening, Whitworth went inside and only defendant and

decedent remained. Defendant stabbed decedent three times, dragged his body to the

back of Whitworth’s home, and told Whitworth he stabbed decedent. A neighbor

testified she saw a man bending over decedent yelling multiple times “You’re gonna

respect me now” prior to dragging the body up the driveway. Whitworth attempted

to revive decedent and called 911. Defendant left before the police arrived. The

decedent was declared dead at the scene and defendant was arrested at his sister’s

home.

Defendant was indicted for first-degree murder, pled not guilty, and asserted

a self-defense claim. At trial, defendant testified the decedent had attacked him a

couple weeks prior to the 21 March altercation. Defendant testified he believed the

decedent had a grudge against him after that prior incident. Defendant testified on

the night of 21 March, once Whitworth went inside and defendant and the decedent

were alone, defendant was walking off the porch when the decedent punched the back

of his head. Defendant testified the decedent continued to punch him and he thought

the decedent would beat him to death. Defendant testified he feared for his life and

felt he had no other option but to pull out the knife in his pocket to protect himself

from the decedent. He swung at the decedent with the knife and the decedent

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STATE V. MITCHELL

Opinion of the Court

collapsed. Defendant testified he pulled the decedent’s body closer to Whitworth’s

house to see what happened to him and did not see any blood on the decedent. He

testified he attempted to resuscitate the decedent before calling Whitworth; he

further testified he left for his sister’s house because he was in a state of panic.

The medical examiner testified decedent’s death was caused by a stab wound

to the chest. Additionally, the medical examiner testified the decedent had a “blunt

force” head injury, two other stab wounds, and no injury on his hands. Law

enforcement officers took photos of defendant after the altercation; these were

admitted into evidence and depicted defendant without any obvious injuries and with

clean clothing.

During closing arguments, the State pointed to a garden hoe in one of the

admitted photos of the scene and inferred defendant first hit the decedent on the head

with the garden hoe prior to stabbing him multiple times. The State also argued that

the direction of the stabbings, according to the medical examiner report, showed the

wounds were in a downward direction and that this indicated how defendant attacked

the decedent. Defendant moved for a mistrial based on the State’s closing remarks;

the trial court denied his motion.

The State sought and was granted inclusion of the aggressor doctrine alongside

the self-defense instruction for the jury instructions. Defendant objected to the

inclusion of the aggressor doctrine but was overruled. The trial court instructed the

jury on first-degree murder, second-degree murder, voluntary manslaughter, and

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Opinion of the Court

imperfect self-defense. The jury returned a guilty verdict for voluntary

manslaughter, and the trial court sentenced defendant to 128 to 166 months’

imprisonment. Defendant timely appealed the judgment.

II.

Defendant seeks review of the following issues: (1) Whether the trial court

erred by instructing the jury on the aggressor doctrine and its impact on defendant’s

perfect self-defense claim; (2) whether the trial court erred by denying defendant’s

motion for a mistrial because of the State’s closing argument; and (3) whether the

trial court erred by not intervening during the State’s closing argument concerning

improper use of evidence. Defendant properly preserved each issue for appellate

review; therefore, we consider each issue in turn.

A.

First, defendant seeks review of the trial court’s inclusion of the aggressor

doctrine in the jury instructions. Defendant argues the trial court’s instruction that

he could not act in perfect defense if he were the aggressor misled the jury because

there was no evidence to support inclusion of the aggressor instruction. According to

defendant, the trial court should only include the aggressor instruction if there was

a “reasonable view of the evidence” to support the theory he was the aggressor

according to State v. Lampkins. 283 N.C. 520, 523 (1973). Conversely, the State

argues there was evidence to support inclusion of the aggressor instruction. The

State refers to State v. Hicks to argue the trial court properly included the instruction

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STATE V. MITCHELL

Opinion of the Court

because a mere inference from the evidence that defendant was the aggressor, is

adequate to justify its inclusion. 385 N.C. 52, 60–61 (2023). We review preserved

objections to jury instructions de novo. State v. Richardson, 270 N.C. App. 149, 152

(2020).

Deadly force in the form of self-defense is justified in limited circumstances.

See N.C.G.S. §§ 14-51.3, 14-51.2 (2020). This justification gives way when evidence

suggests that the person claiming self-defense is an aggressor. See N.C.G.S. § 14-

51.4 (2020). The aggressor doctrine is appropriately included in jury instructions

when someone “aggressively and willingly enters into a fight without legal excuse or

provocation.” State v. Wynn, 278 N.C. 513, 519 (1971). “Someone who did not

instigate a fight may still be the aggressor if they continue to pursue a fight that the

other person is trying to leave.” Hicks, 385 N.C. at 60 (cleaned up). The aggressor

instruction must be given by the court when requested “if it is correct in itself and

supported by the evidence. When the evidence is conflicting, it is for the jury to

determine whether the defendant was the aggressor.” Id. “When there is no evidence

that a defendant was the initial aggressor, it is reversible error for the trial court to

instruct the jury on the aggressor doctrine of self-defense.” State v. Juarez, 369 N.C.

351, 358 (2016).

In the present case, defendant argues there was no evidence to support

inclusion of the aggressor doctrine. However, the record includes the following

evidence: photos of defendant right after the incident showing defendant without any

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STATE V. MITCHELL

Opinion of the Court

physical injury, defendant wearing clean clothes along with testimony he did not

change after the incident, the decedent’s clothes were blood stained and ripped, no

injury to the decedent’s hands, three stab wounds and a blunt-force trauma injury on

the decedent’s head, and testimony by a neighbor who saw defendant standing over

decedent’s body repeatedly yelling that the decedent would respect him.

Defendant testified the decedent attacked him from the back and continuously

punched defendant while he was on the ground, but this evidence was contradicted

by the photos of defendant with no signs of physical harm after the alleged attack.

When viewing this evidence in the “light most favorable to the State,” this evidence

is sufficient or at least conflicting enough for the jury to hear and decide whether

defendant was the aggressor. Hicks, 385 N.C. at 61; cf. State v. Presson, 229 N.C.

App. 325, 330 (2013) (discussing the “nature and severity” of the decedent’s wounds

compared to the defendant’s absence of injuries as evidence that the jury could rely

upon to determine that the defendant was the aggressor). Accordingly, the trial court

did not err by including the aggressor doctrine in the jury instructions.

B.

Second, defendant argues the trial court erred by denying his motion for a

mistrial after the State argued in its closing that it could be inferred that defendant

struck the decedent with a garden hoe. We review the denial of a motion for mistrial

for abuse of discretion. State v. Burgess, 271 N.C. App. 302, 306 (2020). “The decision

to grant or deny a mistrial lies within the sound discretion of the trial court and is

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STATE V. MITCHELL

Opinion of the Court

entitled to great deference since the trial court is in a far better position than an

appellate court to determine the effect of any misconduct on the jury.” State v. Taylor,

362 N.C. 514, 538 (2008) (cleaned up). “Mistrial is a drastic remedy, warranted only

for such serious improprieties as would make it impossible to attain a fair and

impartial verdict.” State v. Stocks, 319 N.C. 437, 441 (1987).

The State made the following statements that triggered defendant’s motion for

mistrial as it relates to the garden hoe:

In State’s Exhibit 47 is a hoe. This was present at the scene
near the fire where they were all sitting around drinking.
I would contend a reasonable inference is that this
defendant got up and hit [the decedent] in the head. He has
a very distinct blunt force trauma to the side of his head.
When he hit him, besides the fact that he was impaired, he
was stunned, he went down. And when he went down, the
defendant walks up behind him with his knife and plunges
it into him and then plunges it into him again.

Defendant argues that there was no testimony that the admitted photo had a garden

hoe in it. He argues there was no testimony that defendant attacked the decedent

with the garden hoe or that the decedent’s head injuries were incurred by blunt force

from the garden hoe. Defendant argues that such statements went beyond

“reasonable inferences” and misled the jury to speculate and make assumptions based

upon unsupported evidence. We disagree.

In the present case, the trial court considered defendant’s motion and

ultimately denied it. The trial court reasoned the State utilized the evidence to build

reasonable inferences and the State’s argument about the garden hoe was to argue

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Opinion of the Court

motive. It articulated the State’s inferences were based upon photographs presented

at trial. The trial court also stated it would remind the jurors that what the attorneys

say is not evidence but is instead intended to assist the jury in evaluating the

evidence. Having considered the State’s argument and the trial court’s discretionary

denial, we conclude the trial court did not abuse its discretion by denying the motion

for mistrial. Defendant’s argument is without merit.

C.

Third, defendant argues the trial court erred by not intervening upon his

objection during the State’s closing arguments. Defendant argues he objected and

preserved this argument while the State argues defendant only objected

contemporaneously to the State’s comments regarding the stab wounds but did not

object timely to the comments about the garden hoe. Upon review we determine

defendant preserved this argument for review when he objected and stated, “She’s

talking about things outside of the four box, I mean, just – THE COURT: Objection

is overruled.”

We review preserved objections to closing arguments for abuse of discretion.

State v. Walters, 357 N.C. 68, 101 (2003). “Application of the abuse of discretion

standard to closing argument requires this Court to first determine if the remarks

were improper. Next, we determine if the remarks were of such a magnitude that

their inclusion prejudiced defendant, and thus should have been excluded by the trial

court.” Id. (cleaned up). “Trial counsel is allowed wide latitude in his argument to

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STATE V. MITCHELL

Opinion of the Court

the jury and may argue the law and the facts in evidence and all reasonable

inferences drawn from them.” State v. Craig, 308 N.C. 446, 454 (1983) (cleaned up).

In the present case, defendant argues the State’s argument discussing the

garden hoe in Exhibit #47 and the State’s discussion of the trajectory of the knife

stabbing required the court’s intervention. Defendant argues the State went beyond

reasonable inferences when it argued defendant used the garden hoe to hit the

decedent on the head, followed by stabbing him once the decedent fell from the

impact. In the record, the transcript reveals the State admitted Exhibit #47 to give

“a relational photograph showing the fire pit in the foreground and the trash can in

the background.” We agree that the State’s inference that the garden hoe was used

to attack the decedent was beyond the scope of what was admitted into evidence.

These remarks were improper.

But these remarks were not of such magnitude that they prejudiced defendant

and should have been excluded by the trial court. See Walters, 357 N.C. at 101. The

trial court instructed the jury multiple times that the attorneys’ arguments were not

evidence. The State argued based upon its theory of the case—that defendant was

the aggressor. Apart from discussing the garden hoe for the first time in its closing

argument, the inferences made were reasonable—given the admitted evidence of

blunt force trauma to the decedent’s head and the photos of defendant without any

injury after the altercation. Therefore, the trial court did not abuse its discretion.

Defendant also argues the State made unreasonable inferences when it

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STATE V. MITCHELL

Opinion of the Court

discussed the downward direction of the stabbing to infer defendant’s position as the

attacker. Defendant argues this was not admitted into evidence. But our review of

the record reveals the medical examiner report included discussion of the downward

trajectory of the knife stabbing. The State’s inference of this admitted evidence was

reasonable and the trial court’s overruling of this objection was in line with its duty

to allow wide latitude to trial counsel. See Craig, 308 N.C. at 454–55. Accordingly,

we conclude the trial court did not abuse its discretion by overruling defendant’s

objections to the State’s closing remarks.

III.

The trial court did not err by including the aggressor doctrine in the jury

instructions. The trial court did not err by denying defendant’s request for a mistrial

over the State’s statements made during its closing argument, and the trial court did

not abuse its discretion by overruling defendant’s objections to the State’s closing

remarks. For the foregoing reasons, we discern no error.

NO ERROR.

Judge GRIFFIN concurs.

Judge ARROWOOD concurs in result only.

Report per Rule 30(e).

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