State v. Mercer ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 257PA18
Filed 28 February 2020
STATE OF NORTH CAROLINA
v.
SYDNEY SHAKUR MERCER
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 818 S.E.2d 375 (N.C. Ct. App. 2018), vacating a judgment
entered on 8 May 2017 by Judge Jesse B. Caldwell III in Superior Court, Mecklenburg
County, and remanding for a new trial. Heard in the Supreme Court on 22 November
2019 in session in the Johnston County Courthouse in the City of Smithfield pursuant
to section 18B.8 of chapter 57 of the 2017 North Carolina Session Laws.
Joshua H. Stein, Attorney General, by Mary C. Babb, Assistant Attorney
General, for the State-appellant.
Glenn Gerding, Appellate Defender, by Daniel K. Shatz, Assistant Appellate
Defender, for defendant-appellee.
HUDSON, Justice.
Here, we must determine whether the Court of Appeals erred by concluding
that the trial court committed prejudicial error when it failed to instruct the jury on
justification as a defense for the charge of possession of a firearm by a felon. Because
we conclude that the Court of Appeals did not err, we affirm.
STATE V. MERCER
Opinion of the Court
I. Factual and Procedural Background
On 30 March 2016 an altercation occurred outside defendant’s home. The State
and defendant presented different versions of that event at trial. Due to our standard
of review in this case, we present the facts primarily from defendant’s version of
events.
Dazoveen Mingo and a group of approximately fifteen family members
(hereinafter, the Mingo group) walked to defendant’s home to fight two of defendant’s
friends, J and Wardell. When defendant arrived at his house with J and Wardell after
a job interview, the Mingo group was there urging defendant and his friends to fight
them and blocking defendant from going into his house. Defendant asked the Mingo
group what was going on and they accused him of jumping a member of their group.
Defendant denied having anything to do with a jumping, but the Mingo group
continued to approach him saying they were “done talking.”
Defendant’s mother heard a commotion outside her house and went outside to
find the Mingo group “ambushing” defendant and preventing him from coming into
the house. She tried to calm everyone down but the Mingo group continued to try to
fight, walking toward defendant and his friends, who backed away. Both defendant
and his mother observed that members of the Mingo group were armed.
Defendant heard the sound of guns cocking. Wardell had a gun but he did not
seem to know what he was doing with it. Defendant took the gun from Wardell, but
continued to talk to the Mingo group and deny involvement in the jumping.
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Opinion of the Court
Defendant knew he was not allowed to possess a firearm, but he saw Wardell was
struggling with the gun and defendant wanted to make sure they survived.
Defendant pointed Wardell’s gun at the Mingo group and told them to “back up.” He
heard shots fired by someone else.
When defendant’s mother heard the shot, she urged defendant to run away
because she believed the Mingo group was trying to kill him. She heard one member
of the group, Ms. Mingo, tell her son to shoot defendant and saw Ms. Mingo chasing
defendant and shooting at him.
Defendant dashed to the side of the street. When he observed that someone
was still shooting at him, defendant shot back once and then the gun jammed.
Defendant threw the gun back to Wardell to fix it and defendant ran away. Early the
next morning defendant turned himself in to the police.
The State’s witnesses provided a slightly different version of events:
Dazoveen Mingo and a group of family members walked to defendant’s home
to fight two of defendant’s friends, J and Wardell. None of the Mingo group was
armed. Defendant, J, and Wardell arrived at defendant’s house about the same time
as the Mingo group and Dazoveen noticed that defendant had a handgun in his belt.
The Mingo group began urging defendant and his friends to fight them,
walking toward defendant and his friends, who backed away. Defendant removed the
gun from his pants and pointed it while telling the group to “back up.” Defendant
then fired a shot into the air.
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STATE V. MERCER
Opinion of the Court
After defendant fired the shot, Dazoveen’s aunt arrived with a gun. Dazoveen’s
mother grabbed the gun from the aunt and shot it into the air. Both defendant and a
member of the Mingo group fired shots into the air three to four times each. After
these shots, the Mingo group went home and called the police.
Defendant was indicted on 11 April 2016 for possession of a firearm by a felon
under N.C.G.S. § 14-415.1 and tried before a jury beginning in March 2017. At the
conclusion of all the evidence, defendant requested a jury instruction on justification
as a defense to the charge of possession of a firearm by a felon. The trial court denied
the request, and defendant objected. During deliberations, the jury sent a note asking
the trial court for “clarification on whether or not [defendant] could be justified in
possession of a firearm even with the stipulation [that he was] a convicted felon.” In
response, the trial court reread its original instruction on possession of a firearm by
a felon to the jury.
The jury returned a verdict of guilty on the charge of possession of a firearm
by a felon. Defendant appealed his conviction to the Court of Appeals, arguing that
the trial court erred by denying his requested jury instruction on justification as a
defense to possession of a firearm by a felon. The Court of Appeals concluded that
defendant was entitled to a justification defense instruction. We affirm.
II. Standard of Review
We review a decision of the Court of Appeals’ to determine whether it contains
any error of law. N.C.R. App. P. 16(a); State v. Malone, 833 S.E.2d 779, 787 (N.C.
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Opinion of the Court
2019) (citing State v. Brooks, 337 N.C. 132, 149, 446 S.E.2d 579, 590 (1994)). A trial
court must give the substance of a requested jury instruction if it is “correct in itself
and supported by the evidence . . . .” State v. Locklear, 363 N.C. 438, 464, 681 S.E.2d
293, 312 (2009) (citing State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129
(1993)); see also, e.g., State v. Montague, 298 N.C. 752, 755, 259 S.E.2d 899, 902 (1979)
(holding that if, there is sufficient evidence in the light most favorable to the
defendant to support a self-defense instruction, “the instruction must be given even
though the State’s evidence is contradictory.”). To resolve whether a defendant is
entitled to a requested instruction, we review de novo whether each element of the
defense is supported by the evidence, when taken in the light most favorable to
defendant. State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988) (“When
determining whether the evidence is sufficient to entitle a defendant to jury
instructions on a defense or mitigating factor, courts must consider the evidence in
the light most favorable to defendant.”).
III. Analysis
A. Justification as a Defense to N.C.G.S. § 14-415.1
In North Carolina, “[i]t shall be unlawful for any person who has been
convicted of a felony to purchase, own, possess, or have in his custody, care, or control
any firearm or any weapon of mass death and destruction as defined in [G.S. § 14-
288.8(c)].” N.C.G.S. § 14-415.1(a) (2017). “The offense of possession of a firearm by a
convicted felon has two essential elements: (1) the defendant has been convicted of a
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Opinion of the Court
felony, and (2) the defendant subsequently possessed a firearm.” State v. Floyd, 369
N.C. 329, 333, 794 S.E.2d 460, 463 (2016) (citation omitted).
Whether justification is a common-law defense to a charge of possession of a
firearm by a felon under N.C.G.S. § 14-415.1 is a question of first impression in our
Court. Previous cases addressing this issue at the Court of Appeals have assumed
arguendo that justification is available as a defense to a charge of possession of a
firearm by a felon, but the defense has never been recognized by this Court because
none of the previous cases presented a situation in which a defendant would have
been entitled to the instruction under the analysis the defendant proposed to the
Court of Appeals. See State v. Monroe, 233 N.C. App. 563, 568–69, 756 S.E.2d 376,
379–80 (2014), aff'd per curiam, 367 N.C. 771, 768 S.E.2d 292 (2015) (surveying prior
Court of Appeals cases).
We now hold that in narrow and extraordinary circumstances, justification
may be available as a defense to a charge under N.C.G.S. § 14-415.1.1
1 Some form of the defense of justification has been widely recognized by other
jurisdictions as a defense to possession of a firearm by a felon. See, e.g., United States
v. Gomez, 92 F.3d 770, 774–75 (9th Cir. 1996); United States v. Paolello, 951 F.2d 537,
541 (3d Cir. 1991); United States v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990);
United States v. Gant, 691 F.2d 1159, 1161–62 (5th Cir. 1982); Smith v. State, 290
Ga. 768, 770, 723 S.E.2d 915, 918 (2012); People v. Dupree, 486 Mich. 693, 696, 788
N.W.2d 399, 401 (2010); Humphrey v. Commonwealth, 37 Va. App. 36, 44–48, 553
S.E.2d 546, 550–52 (2001).
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STATE V. MERCER
Opinion of the Court
We note that justification is an affirmative defense and does not negate any
element of N.C.G.S. § 14-415.1. The justification defense “serves only as a legal excuse
for the criminal act and is based on additional facts and circumstances that are
distinct from the conduct constituting the underlying offense.” State v. Holshouser,
833 S.E.2d 193, 197 (N.C. Ct. App. 2019) (citing United States v. Deleveaux, 205 F.3d
1292, 1297–98 (11th Cir. 2000)). Thus, like other affirmative defenses, a defendant
has the burden to prove his or her justification defense to the satisfaction of the jury.
See State v. Sanders, 280 N.C. 81, 85, 185 S.E.2d 158, 161 (1971) (“When defendant
relies upon some independent, distinct, substantive matter of exemption, immunity
or defense, beyond the essentials of the legal definition of the offense itself, the onus
of proof as to such matter is upon the defendant.” (quoting State v. Johnson, 229 N.C.
701, 706, 51 S.E.2d 186, 190 (1949))). See also, e.g., State v. Caldwell, 293 N.C. 336,
339, 237 S.E.2d 742, 744 (1977) (“[I]nsanity is an affirmative defense which must be
proved to the satisfaction of the jury by every accused who pleads it.”); State v.
Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975) (“[Unconsciousness] is an
affirmative defense; . . . the burden rests upon the defendant to establish this defense,
unless it arises out of the State's own evidence, to the satisfaction of the jury.”).
The Court of Appeals looked to the Deleveaux case for guidance as to how a
defendant could invoke the defense of justification. We view the Deleveaux factors as
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Opinion of the Court
appropriate and adopt them here. 2 Accordingly, we hold that to establish justification
as a defense to a charge under N.C.G.S. § 14-415.1, the defendant must show:
(1) that the defendant was under unlawful and present,
imminent, and impending threat of death or serious bodily
injury; (2) that the defendant did not negligently or
recklessly place himself in a situation where he would be
forced to engage in criminal conduct; (3) that the defendant
had no reasonable legal alternative to violating the law;
and (4) that there was a direct causal relationship between
the criminal action and the avoidance of the threatened
harm.
Deleveaux, 205 F.3d at 1297. Having determined that justification may be a defense
to N.C.G.S. § 14-415.1 and that a justification instruction must be given when each
Deleveaux factor is supported by evidence taken in the light most favorable to
defendant, we now turn to the specific facts of the case at hand.
B. Application of the Defense
“When determining whether the evidence is sufficient to entitle a defendant to
jury instructions on a defense or mitigating factor, courts must consider the evidence
in the light most favorable to defendant.” State v. Mash, 323 N.C. 339, 348, 372
2 We recognize that the court in Deleveaux analyzed 18 U.S.C. § 922(g)(1), the federal
equivalent of N.C.G.S. §14-415.1. The two statutes share similar language and restrict
similar behavior. The federal statute makes it unlawful for a convicted felon “to ship or
transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm
or ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1). The North Carolina
statute makes it unlawful for a convicted felon “to purchase, own, possess, or have in his
custody, care, or control any firearm.” Thus, we find the Deleveaux factors helpful and
appropriate as a rubric for defendants to establish that they are entitled to an instruction on
justification as a defense to a charge under N.C.G.S. §14-415.1.
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Opinion of the Court
S.E.2d 532, 537 (1988) (citations omitted). Thus, we examine whether evidence,
considered in the light most favorable to defendant, tends to show each element of
justification such that the trial court should have instructed the jury on justification
as a defense.
First, defendant presented evidence that he was under unlawful and present,
imminent and impending threat of death or serious bodily injury. When defendant
arrived at his own house, there was a group of people ready to fight him, and those
people were blocking him from going inside. The group accused defendant of jumping
one of them and Ms. Mingo was shouting at her son to shoot defendant. While trying
to explain that he had nothing to do with the underlying conflict and backing away
from the group, defendant heard the sound of guns cocking and heard someone in the
group say they were “done talking.” Defendant testified that he saw his cousin
struggling with his gun, and only then took the gun himself. While there is some
evidence from the State that defendant was armed before the threat arose, we must
view the evidence in the light most favorable to defendant, and defendant’s evidence
tends to show that he was under unlawful and present, imminent and impending
threat of death or serious bodily injury.
Second, the evidence suggests that defendant did not negligently or recklessly
place himself in a situation where he would be forced to engage in criminal conduct.
Defendant testified that when he arrived home after a job interview, a large group of
people were there looking for a fight. Defendant’s mother testified that the group was
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STATE V. MERCER
Opinion of the Court
blocking defendant from going into his house and that from the moment he exited his
car they were challenging him to fight. Although defendant tried to explain that he
was not involved in the underlying conflict from earlier that day and physically
backed away from the group, the situation escalated rapidly. Considering the
evidence in the light most favorable to defendant, we conclude that a jury could find
that he did not negligently or recklessly place himself in a situation where he would
be forced to arm himself simply by arriving at his home and trying to explain himself
to the group who were blocking him from entering his home.
Third, some evidence supports defendant’s claim that he had no reasonable
legal alternative to violating the law. Defendant was unable to go into his home when
he arrived because the group blocked his path, and he was already out of the car and
unable to drive away when the group said they were “done talking.” Defendant
testified that after he heard guns being cocked, he looked over to see his cousin
struggling with the gun. Again, considering the evidence in the light most favorable
to defendant, a reasonable jury could conclude that it was too late to call 911 and that
running away would have put him at greater risk of being shot. A jury could have
concluded that defendant had no reasonable legal alternative to violating the law.
Fourth and finally, there was evidence tending to show a direct causal
relationship between the criminal action and the avoidance of the threatened harm.
According to defendant, he only took possession of the gun when he heard other guns
being cocked, and he gave the gun back to his cousin when it jammed and he was able
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Opinion of the Court
to run away. Defendant argued that having the gun allowed him to create space
enough to retreat and avoid being jumped or shot by the group. The State presented
evidence to the contrary, but when considering the evidence in the light most
favorable to defendant, a jury could find that his gun possession was directly caused
by his attempt to avoid a threatened harm.
Thus, viewed in the light most favorable to defendant, we conclude that he
presented sufficient evidence of each Deleveaux factor to require the court to instruct
the jury on justification as a defense to the charge of possession of a firearm by a
felon. We emphasize that we are not determining whether defendant here was
actually justified in his possession of the firearm, as the State did present relevant
conflicting evidence on several points. We hold only that he was entitled to have the
justification defense presented to the jury.
Having determined that defendant was entitled to a jury instruction on
justification as a defense, we must now evaluate whether the trial court’s failure to
give this instruction was prejudicial to defendant. “[A] defendant is prejudiced by
errors relating to rights arising other than under the Constitution of the United
States when there is a reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial. . . .” N.C. Gen.
Stat. § 15A-1443(a) (2017).
The jury was not instructed on justification as a defense to the possession of a
firearm by a felon and it ultimately convicted defendant on that charge. But, during
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Opinion of the Court
deliberations, the jury sent a note to the trial court explicitly asking about the
availability of a justification defense for the charge of possession of a firearm by a
felon. This question indicates, at a minimum, that the jury was concerned about this
legal issue. We conclude that the trial court’s failure to give a justification instruction
created a reasonable possibility that the jury would have reached a different result.
IV. Conclusion
We hold that the Court of Appeals did not err by recognizing the availability of
a common law justification defense for a possession of a firearm by a felon charge
under N.C.G.S. § 14-415.1 nor by prescribing the Deleveaux factors as the framework
within which to determine whether the defense should have been presented to the
jury. Having considered the evidence in the light most favorable to defendant, we hold
that there is sufficient evidence of each Deleveaux factor to require a justification
instruction be given to the jury. Because the failure to give that instruction was
prejudicial, defendant is entitled to a new trial, and we affirm the decision of the
Court of Appeals.
AFFIRMED.
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Justice MORGAN dissenting.
While I agree with my distinguished colleagues of the majority that our Court
should avail itself of the opportunity that this case presents to expressly recognize
and establish a defense of justification as an affirmative defense which is available to
a criminal defendant who is accused of the offense of possession of a firearm by a
felon, I respectfully dissent on the ground that the majority has formalized a
threshold which is perilously low for the requirements of this affirmative defense to
be met. In this case of first impression in this Court, while the majority states that
this affirmative defense is now available “in narrow and extraordinary
circumstances,” in my view defendant here did not present evidence of circumstances
at trial which were sufficient to qualify him for the affirmative defense at issue.
Therefore, while I agree with the decision of the majority to establish a defense of
justification which is available as an affirmative defense to a criminal defendant who
is charged with the offense of possession of a firearm by a felon, I must dissent from
the majority’s decision due to my belief that defendant in the instant case did not
present evidence sufficient to show each necessary element to warrant a jury
instruction on justification as a defense.
In welcoming the establishment of the justification defense for a criminal
defendant in the state courts of North Carolina who is charged under Section 14-
415.1 of the General Statutes of North Carolina, I agree with the majority’s premise
STATE V. MERCER
Morgan, J., dissenting
that our courts should implement the four factors enunciated in United States v.
Deleveaux, which a defendant must satisfy in order to establish justification as a
defense:
(1) that the defendant was under unlawful and present,
imminent, and impending threat of death or serious bodily
injury; (2) that the defendant did not negligently or
recklessly place himself in a situation where he would be
forced to engage in criminal conduct; (3) that the defendant
had no reasonable legal alternative to violating the law;
and (4) that there was a direct causal relationship between
the criminal action and the avoidance of the threatened
harm.
205 F.3d 1292, 1297 (11th Cir. 2000). I also concur with the majority’s recognition of
the well-established principle, as cited in its opinion, that an appellate court reviews
de novo whether or not a defendant is entitled to a requested jury instruction on an
affirmative defense upon examining the evidence in the light most favorable to the
defendant so as to determine whether each element of the affirmative defense is
supported by the evidence.
Within the Felony Firearms Act, codified in Article 54A of the North Carolina
General Statutes, is N.C.G.S. § 14-415.1. Defendant was convicted in the present case
of possession of a firearm by a felon, in violation of N.C.G.S. § 14-415.1. The offense
is established in § 14-415.1(a), which states in pertinent part: “It shall be unlawful
for any person who has been convicted of a felony to purchase, own, possess, or have
in his custody, care, or control any firearm.” In according the word “any”—which is
used twice in the excerpted passage of the statute—its plain and simple meaning, no
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Morgan, J., dissenting
person convicted of a felony is exempted from the statutory reach of this offense.
Likewise, no firearm is excluded from the application of this criminal law. Inherent
in the usage of such unequivocal and unambiguous language, and reinforced by the
dearth of any terminology to compromise or to weaken its directness, is the clarity of
the legislative intent undergirding N.C.G.S. § 14-415.1(a) that there are no exceptions
to the operation of the statute. Therefore, while I agree with the majority’s
presumption that this Court has the authority to judicially carve out an affirmative
defense to the criminal statutory provision,1 nonetheless I am compelled to tailor this
newly formalized affirmative defense of justification as a defense to N.C.G.S. § 14-
415.1 in such a way that it is appropriately only available to criminal defendants in
the type of narrow and extraordinary circumstances which most closely retain the
original concept of the statute’s lack of any exceptions.
In this case of first impression, as this Court adopts the standards of the
federal court case United States v. Deleveaux to establish the affirmative defense of
justification in North Carolina state court cases involving the criminal charge of
possession of a firearm by a felon, it would be prudent to examine the federal courts’
approach to the utilization of the defense in circumstances where, as in the instant
case, the legislative enactment comprehensively bars a convicted felon from acquiring
a firearm by any means. “To ensure that this strict prohibition is effectuated, we
1 “[S]tatutes rarely enumerate the defenses to the crimes they describe.” United
States v. Panter, 688 F.2d 268, 270 (5th Cir. 1982) (footnote omitted).
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should require that the defendant meet a high level of proof to establish the defense
of justification.” United States v. Paolello, 951 F.2d 537, 541 (3rd Cir. 1991). The
Seventh Circuit in United States v. Perez emphasized that, other than when a felon
who is not engaged in criminal activity grabs a gun which is actively threatening
harm, a justification defense “will rarely lie in a felon-in-possession case” and is
available “only in the most extraordinary circumstances.” 86 F.3d 735, 737 (7th Cir.
1996) (emphasis added). “A ‘mere scintilla’ of evidence supporting a defendant’s
theory . . . is not sufficient to warrant a [justification] defense instruction.” United
States v. Morton, 999 F.2d 435, 437 (9th Cir. 1993). Other federal courts have reached
similar conclusions which require strict standards for this affirmative defense. See,
e.g., United States v. Singleton, 902 F.2d 471–72 (6th Cir. 1990) (holding “that a
defense of justification may arise in rare situations”) (citation omitted) (emphasis
added); United States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000) (finding that the
justification defense “is reserved for ‘extraordinary circumstances’ ”) (citation omitted)
(emphasis added).
In examining the trial evidence when taken in the light most favorable to
defendant in order to determine whether or not the evidence was sufficient to entitle
him to a jury instruction on justification as a defense to the criminal offense of
possession of a firearm by a felon as established by N.C.G.S. § 14-415.1(a), in my view
the first factor—“the defendant was under unlawful and present, imminent, and
impending threat of death or serious bodily injury”—and the third factor—“the
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defendant had no reasonable legal alternative to violating the law”—were
insufficiently shown by defendant to establish the affirmative defense and to require
an instruction to the jury on it. Stated another way, because the defendant did not
show sufficient evidence of all four of the Deleveaux factors, the circumstances
presented at trial were not sufficiently narrow and extraordinary to support a defense
of justification.
While the circumstances described in the testimony presented at trial
concerning the two antagonistic groups of people confronting each other in an outdoor
environment is a disturbing situation, they do not rise to a level which constitutes
sufficient evidence to satisfy all of the required Deleveaux factors. Even taking the
evidence in the light most favorable to defendant, such evidence falls short of the high
standards articulated in the cited case law. The evidence at trial showed that
defendant was engaged in discussion with the members of the “Mingo group” during
the entirety of the confrontation. While there were angry responses to defendant’s
statements from the “Mingo group” members and gunshots fired by unknown
individuals within the two groups, defendant extricated himself from the unpleasant
situation simply by running away from it. As defendant put it, “I just run home. Not
run home, but run away.” Hence, I am not persuaded that it was necessary for
defendant to possess a firearm in order to escape from the unlawful and present,
imminent, and impending threat of death or serious bodily injury. Also, the trial
evidence offered by defendant himself demonstrated that there was no need for him
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to possess a firearm during this altercation: defendant’s cousin Wardell Sherill had a
firearm which he displayed, defendant “hurried up and snatched it out of his hand”
after hearing “people cock their guns back” because “Wardell Sherill is my little
cousin,” and defendant subsequently returned the gun to its owner as he “threw it to
Mr. Sherill.” Through this testimony of defendant, it is apparent that he was not in a
position in which he had no reasonable legal alternative to violating the law, because
after he unilaterally and voluntarily took possession of the firearm from its owner,
defendant unilaterally and voluntarily returned the firearm to its owner when
defendant was finished with it. “Generalized fears will not support the defense of
justification.” United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). As stated
in United States v. Lewis:
[a justification defense] does not arise from a “choice” of
several sources of action; it is instead based on a real
emergency. It may be asserted only by a defendant who was
confronted with a crisis as a personal danger, a crisis that
did not permit a selection from among several solutions,
some of which would not have involved criminal acts.
628 F.2d 1276, 1279 (10th Cir. 1980) (emphasis added), cert. denied, 450 U.S. 924
(1981).
It is needless for me to address whether any of the other Deleveaux factors
exist, since pursuant to my analysis regarding the sufficiency of the evidence to
invoke the affirmative defense of justification, the first and third factors fail to exist,
and all of them must be present for the jury instruction to be given.
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I would readily join the majority in the conclusion that the defense of
justification as an affirmative defense to a charge of possession of a firearm by a felon
under N.C.G.S. § 14-415.1 should be deemed to be formally established by virtue of
the present case. However, the “rare” and “most extraordinary” circumstances which
courts routinely require to be shown through a “high level of proof to establish the
defense of justification” have not been satisfied by defendant in this case in light of
the clear intent of the legislature to create a pervasive denial of the possession of
firearms by persons convicted of felony offenses and the resulting judicial
responsibility “to ensure that this strict prohibition is effectuated.” Through the
majority’s determination that defendant here merited a jury instruction at trial on
the affirmative defense of justification on the basis of the evidence presented in this
case, it has set a standard in this case of first impression which is far too low to
represent the appropriate evidentiary threshold. While the majority purports to have
copiously constrained the availability of the affirmative defense of justification in
cases involving N.C.G.S. § 14-415.1 to “narrow and extraordinary circumstances,” I
disagree. Accordingly, I would reverse the decision of the Court of Appeals on the
basis that there was not sufficient evidence to entitle defendant to a jury instruction
on justification as a defense to the charged offense under N.C.G.S. § 14-415.1 of
possession of a firearm by a felon.
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