State v. Monroe

NO. COA13-954
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Gaston County
No. 12 CRS 5522-23
ANTONIO ALONZO MONROE
On writ of certiorari from judgment entered 11 April 2013
by Judge Yvonne Mims Evans in Superior Court, Gaston County.
Heard in the Court of Appeals 25 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn S. Piquant, for the State.
Mark Hayes for Defendant.
McGEE, Judge.
Antonio Alonzo Monroe (“Defendant”) was indicted for first-
degree murder of Mario Davis (“Davis”), possession of a firearm
by a felon, and for attaining the status of an habitual felon.
A jury found Defendant not guilty of first-degree murder but
guilty of possession of a firearm by a felon and of attaining
the status of an habitual felon on 10 April 2013. Defendant
appeals from judgments entered upon his convictions.
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The night before the offenses at issue, Defendant and Davis
had an argument at the residence of Defendant’s uncle. Antwan
Cobb (“Cobb”), a witness to the events, testified that “as we
unlock the door to leave out, [Davis and another man] barge
in[.]” An argument resulted, the police arrived, and the
argument ended. The following day, 17 June 2011, Defendant and
Davis had another brief argument outside the residence of
Jah’Kwesi Gordon (“Gordon”). Davis told Defendant he was going
to “turn the heat up on” him, and Davis then left with O’Brian
Smith (“Smith”).
Shortly thereafter, Davis returned to the front yard of
Gordon’s residence, along with Smith. There was conflicting
evidence as to whether Davis had a gun when he returned. Cobb
testified that Davis said he was “going to stay out here until
the door come open.” Gordon retrieved a gun from his bedroom in
the back of the house. While Defendant and Gordon were inside
the house, Defendant took the gun from Gordon.
Gordon went outside the house to ask Davis to leave.
Defendant remained in the house with the gun. Gordon testified
that he was outside talking to Davis for less than five or ten
minutes before Defendant came to the doorway. Gordon further
testified that, when Defendant came to the doorway, “[h]e had a
couple more words and then [Davis] hit” Defendant “towards the
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facial area.” Defendant then shot Davis five times. Defendant
and Cobb left in Cobb’s car.
At trial, during the charge conference, Defendant asked the
trial court to instruct the jury on self-defense as to the
charge of possession of a firearm by a felon. Defendant
submitted the requested instruction in writing in a document
titled “Request for Special Jury Instruction on Duress or
Justification.” The trial court denied Defendant’s request for
the special instruction.
Defendant argues on appeal that the trial court erred by
failing to instruct the jury on self-defense as to the charge of
possession of a firearm by a felon. This Court addressed this
argument in State v. Craig, 167 N.C. App. 793, 606 S.E.2d 387(2005), in which we noted that “[f]ederal courts have recently
recognized justification as an affirmative defense to possession
of firearms by a felon.” Id. at 795, 606 S.E.2d at 389 (citing
U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000)).
I. The Deleveaux Test
“[T]he Deleveaux court limited the application of the
justification defense to 18 U.S.C. § 922(g)(1) cases (federal
statute for possession of a firearm by a felon) in ‘only
extraordinary circumstances.’” Craig, 167 N.C. App. at 796, 606
S.E.2d at 389 (quoting State v. Napier, 149 N.C. App. 462, 465,
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560 S.E.2d 867, 869 (2002)). In Deleveaux, the United States
Court of Appeals for the Eleventh Circuit cited three cases from
other circuits, U.S. v. Paolello, 951 F.2d 537 (3rd Cir. 1991),
U.S. v. Singleton, 902 F.2d 471 (6th Cir. 1990); cert denied,
498 U.S. 872, 112 L. Ed. 2d 158 (1990), and U.S. v. Perez, 86
F.3d 735 (7th Cir. 1996), to illustrate that the defense is
available only in extraordinary circumstances. Deleveaux, 205
F.3d at 1297.
In Paolello, the United States Court of Appeals for the
Third Circuit observed that the “restrictive approach is sound”
and required that “the defendant meet a high level of proof to
establish the defense of justification.” Paolello, 951 F.2d at
542. In Singleton, the United States Court of Appeals for the
Sixth Circuit held that “a defense of justification may arise in
rare situations” in prosecutions for possession of a firearm by
a felon. Singleton, 902 F.2d at 472. The Court observed that,
although the language of 18 U.S.C. § 922 “gives no hint of an
affirmative defense of justification, Congress enacts criminal
statutes ‘against a background of Anglo-Saxon common law.’” Id.(quoting U.S. v. Bailey, 444 U.S. 394, 415, 62 L. Ed. 2d 575,
594 n.11 (1980)).
“In Bailey, the Supreme Court held that prosecution for
escape from a federal prison, despite the statute’s absolute
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language and lack of a mens rea requirement, remained subject to
the common law justification defenses of duress and necessity.”
Singleton, 902 F.2d at 472. “Similarly, the Congressional
prohibition of possession of a firearm by a felon does not
eliminate the possibility of a defendant being able to justify
the possession through duress or necessity.” Id.“Common law historically distinguished between the defenses
of duress and necessity.” Bailey, 444 U.S. at 409, 62 L. Ed. 2d
at 590. “Duress was said to excuse criminal conduct where the
actor was under an unlawful threat of imminent death or serious
bodily injury, which threat caused the actor to engage in
conduct violating the literal terms of the criminal law.” Id.“While the defense of duress covered the situation where the
coercion had its source in the actions of other human beings,
the defense of necessity, or choice of evils, traditionally
covered the situation where physical forces beyond the actor’s
control rendered illegal conduct the lesser of two evils.” Id.
at 409-10, 62 L. Ed. 2d at 590. “Modern cases have tended to
blur the distinction between duress and necessity.” Id. at 410,
62 L. Ed. 2d at 590.
“[I]f a previously convicted felon is attacked by someone
with a gun, the felon should not be found guilty for taking the
gun away from the attacker in order to save his life.”
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Singleton, 902 F.2d at 472. The Court held that the
“justification defense for possession of a firearm by a felon
should be construed very narrowly” and emphasized “that the
keystone of the analysis is that the defendant must have no
alternative——either before or during the event——to avoid
violating the law.” Id. at 472-73.
In Perez, the United States Court of Appeals for the
Seventh Circuit observed that the “defense of necessity will
rarely lie in a felon-in-possession case unless the ex-felon,
not being engaged in criminal activity, does nothing more than
grab a gun with which he or another is being threatened (the
other might be the possessor of the gun, threatening suicide).”
Perez, 86 F.3d at 737. The Court held that “the defendant may
not resort to criminal activity to protect himself or another if
he has a legal means of averting the harm.” Id.Under Deleveaux, “a defendant must show four elements to
establish justification as a defense” to the charge of
possession of a firearm by a felon:
(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
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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.
Craig, 167 N.C. App. at 796, 606 S.E.2d at 389 (quoting
Deleveaux, 205 F.3d at 1297); see also U.S. v. Crittendon, 883
F.2d 326, 330 (4th Cir. 1989).
II. Standard for Reviewing the Evidence
Defendant argues that, when deciding whether to give a
requested instruction, the trial court must consider the
evidence in the light most favorable to the movant. As support,
Defendant cites Long v. Harris, 137 N.C. App. 461, 467, 528
S.E.2d 633, 637 (2000), wherein the appeal arose from the denial
of a requested instruction on a “sudden emergency” in a civil
negligence action. The present appeal, by contrast, arises from
the denial of a requested instruction on self-defense in a
criminal prosecution. We examine Napier, Craig, and other cases
that have considered this issue for guidance.
In Napier, this Court stated only that the trial court must
give the requested instruction, “at least in substance, if [it
is] proper and supported by the evidence.” Napier, 149 N.C.
App. at 463, 560 S.E.2d at 868. This Court did not state that
the trial court must consider the evidence in the light most
favorable to the movant. In Craig, this Court considered only
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the uncontroverted evidence. Craig, 167 N.C. App. at 796, 606
S.E.2d at 389.
In State v. Boston, 165 N.C. App. 214, 222, 598 S.E.2d 163,
167 (2004), this Court made no statement as to how the evidence
must be viewed. In our analysis, we considered what the
evidence tended to show and referred to what the State’s
evidence tended to show. Id. Also, in State v. McNeil, 196
N.C. App. 394, 406, 674 S.E.2d 813, 821 (2009), this Court
considered only that the evidence showed that the defendant
“possessed the shotgun inside his home . . . at which time there
was no imminent threat of death or serious bodily injury.”
Thus, the only guidance from this Court is that the
instruction must be “supported by the evidence.” Napier, 149
N.C. App. at 463, 560 S.E.2d at 868. This Court has never
stated that, in prosecutions for possession of a firearm by a
felon, the evidence must be viewed in the light most favorable
to a defendant.
However, in an appeal from a conviction for driving while
impaired, this Court stated that “there must be substantial
evidence of each element of the defense when ‘the evidence [is]
viewed in the light most favorable to the defendant’” to entitle
the defendant to a necessity instruction. State v. Hudgins, 167
N.C. App. 705, 709, 606 S.E.2d 443, 446 (2005) (quoting State v.
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Ferguson, 140 N.C. App. 699, 706, 538 S.E.2d 217, 222 (2000)
(regarding an instruction on manslaughter)). Thus, we review
the evidence in the present case in the light most favorable to
Defendant, in order to determine whether there is substantial
evidence of each element of the defense.
Though the case is not binding, we note that in Perez, the
United States Court of Appeals for the Seventh Circuit stated
that a “criminal defendant is entitled to an instruction on any
defense for which there is some support in the evidence[.]”
Perez, 86 F.3d at 736. The Court further stated that the United
States “Supreme Court has made clear that the evidence must be
sufficient to allow a reasonable jury to find the defense
proved.” Id. (citing Mathews v. U.S., 485 U.S. 58, 99 L. Ed.
2d 54 (1988)).
III. North Carolina Cases Applying Deleveaux By Assuming
Arguendo That It Applies In North Carolina
In Napier, this Court noted that “the courts of this State
have not recognized justification as a defense to a charge of
possession of a firearm by a felon.” Napier, 149 N.C. App. at
464, 560 S.E.2d at 869. Nevertheless, the defendant in that
case asked “this Court to expand the necessity defense and adopt
the test for justification” set forth in Deleveaux. Id.(internal quotation marks omitted). This Court assumed, without
deciding, that the Deleveaux rationale applied, but concluded
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that the evidence in Napier did “not support a conclusion that
[the] defendant was under a present or imminent threat of death
or injury.” Id. at 465, 560 S.E.2d at 869.
The evidence in Napier was that the defendant, a convicted
felon who was involved in an on-going dispute with his neighbor
and his neighbor’s son, “voluntarily walked across the street”
to his neighbor’s property, while armed with a handgun. Id.The defendant stayed there for several hours and eventually shot
the neighbor’s son in the arm. Id. This Court disregarded
evidence of the neighbor’s son’s drug and alcohol use, his
threats to the defendant, and recent shootings into the air by
him over the defendant’s property in deciding whether the
defendant was entitled to an instruction on justification. Id.In Craig, the defendant continued to hold the firearm after
leaving the altercation, while “not under any imminent threat of
harm.” Craig, 167 N.C. App. at 796-97, 606 S.E.2d at 389. This
Court concluded that “the evidence did not support giving a
special instruction on justification because there was a time
period where [the] [d]efendant was under no imminent threat
while possessing the gun.” Id. at 797, 606 S.E.2d at 389.
In Boston, the evidence tended to show that the defendant
and the victim “were engaged in an on-going conflict whereby in
the week prior to the shooting, [the victim] threatened to kill
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[the] defendant, and on at least one prior occasion [the victim]
fired a gun at [the] defendant.” Boston, 165 N.C. App. at 222,
598 S.E.2d at 167. This Court held that the trial court did not
err in failing to instruct the jury on justification because the
defendant “was observed walking through the apartment complex
carrying a pistol.” Id. There was “no evidence to support the
conclusion that [the] defendant was under an imminent threat of
death or injury when he made the decision to carry the gun.”
Id. at 222, 598 S.E.2d at 167-68.
In McNeil, this Court held that the evidence did not
support giving a special instruction on justification where the
evidence showed that the defendant “possessed the shotgun inside
his home and away from” the victim, “at which time there was no
imminent threat of death or serious bodily injury.” McNeil, 196
N.C. App. at 406-07, 674 S.E.2d at 821.
Although unpublished, the analysis in State v. Ponder, ___
N.C. App. ___, 725 S.E.2d 674 (2012) (unpublished) (COA 11-1365)
is instructive. This Court held that the defendant was “not
under an imminent threat when he acquired the gun” in Ponder.
Id., slip op. at 4. The defendant “chose to leave the residence
and stand in the field, waiting to confront [the victim]. [The]
[d]efendant could have telephoned the police before obtaining
the weapon.” Id., slip op. at 5.
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IV. Application To The Present Case
Consistent with the precedent from this Court, we assume
arguendo, without deciding, that the Deleveaux rationale applies
in North Carolina prosecutions for possession of a firearm by a
felon. Nevertheless, the evidence in the present case, even
when viewed in the light most favorable to Defendant, does not
support a conclusion that Defendant, upon possessing the
firearm, was under unlawful and present, imminent, and impending
threat of death or serious bodily injury.
The evidence showed there had been an on-going dispute
between Defendant and Davis. Defendant was at Gordon’s house on
17 June 2011. Davis and Smith later arrived at Gordon’s house,
and Defendant and Davis subsequently argued outside Gordon’s
house. The argument did not last long. Cobb, who witnessed the
events on 17 June 2011, testified that Davis told Defendant he
was going to “turn the heat up on” him. Cobb testified that the
phrase meant: “I guess I’m going to shoot you, anything.” Cobb
further testified that after Davis said that, Davis and Smith
left and were gone for fifteen or twenty minutes.
Davis and Smith returned to Gordon’s house. Inside the
house, Gordon retrieved a gun from his bedroom in the back of
the house. While inside the house, Defendant took the gun from
Gordon. Gordon went outside to ask Davis to leave. Defendant
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followed Gordon to the door and stood in the doorway of the
residence. Gordon testified that he was outside talking to
Davis for less than five or ten minutes before Defendant came to
the doorway. Gordon further testified that, when Defendant came
to the doorway, “[h]e had a couple more words and then [Davis]
hit” Defendant “towards the facial area.” Defendant then shot
Davis five times.
The uncontroverted evidence at trial showed that Defendant
was inside Gordon’s house when Defendant took possession of a
firearm. Defendant’s primary support for his argument that the
trial court erred in failing to give a special instruction is
that the jury found Defendant not guilty of first-degree murder
“under a theory of perfect self-defense.” However, the record
does not indicate why the jury acquitted Defendant of first-
degree murder——whether on the basis of self-defense or that the
jury found that the State failed to carry its burden to prove
beyond a reasonable doubt that Defendant murdered Davis. The
record is silent as to this issue. Any speculation by this
Court as to the reason or reasons for the jury’s decision to
acquit Defendant of first-degree murder is therefore baseless.
Furthermore, the offenses of murder and possession of a
firearm by a felon are separate and distinct criminal offenses.
They share no elements in common. See N.C. Gen. Stat. §§ 14-
-14-
415.1; 14-17 (2013); State v. Vance, 328 N.C. 613, 621-22, 403
S.E.2d 495, 501 (1991). Murder is a crime, defined as at common
law. See Vance, 328 N.C. at 622, 403 S.E.2d at 501 (“as
N.C.G.S. § 14-17 does not define the crime of murder, the
definition of that crime remains the same as it was at common
law”). By contrast, possession of a firearm by a felon is a
statutory criminal offense of relatively recent vintage. The
offenses are related in the present case only by the fact that
the State sought to prove that Defendant used a firearm to shoot
Davis.
Defendant’s subsequent contentions are that Davis “had
instigated violence against [Defendant] before,” and that
remaining inside Gordon’s residence would have been “no
protection” because Davis had previously “barged in” to a
residence where Defendant was located. However, the evidence
does not compel a conclusion that, while inside the residence,
Defendant was under unlawful and present, imminent, and
impending threat of death or serious bodily injury. As
previously discussed, this Court has disregarded evidence of the
victim’s drug and alcohol use, threats, and recent shooting over
the defendant’s property in Napier, 149 N.C. App. at 465, 560
S.E.2d at 869.
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We thus cannot rely on the mere possibilities that
(1) Davis may have been about to enter the residence and
(2) that Davis then would have threatened death or serious
bodily injury to Defendant. Defendant has failed to show that
he was under “‘unlawful and present, imminent, and impending
threat of death or serious bodily injury’” at the time he took
possession of the firearm. Craig, 167 N.C. App. at 796, 606
S.E.2d at 389 (quoting Deleveaux, 205 F.3d at 1297).
Although the failure to make this showing is alone
sufficient to hold that the trial court did not err in denying
Defendant’s request for the instruction, we note that Defendant
also failed to show that he “had no reasonable legal alternative
to violating the law[.]” Id. It was uncontroverted that
Defendant voluntarily armed himself and then walked to the
doorway of the residence. Defendant has not shown there was no
acceptable legal alternative other than arming himself with a
firearm, in violation of N.C.G.S. § 14-415.1, and walking to the
doorway of Gordon’s house.
Even viewing the evidence in the light most favorable to
Defendant, we conclude that Defendant has not made the requisite
showing of each element of the justification defense. Thus,
even assuming arguendo, without deciding, that the rationale in
Deleveaux applies in North Carolina prosecutions, the trial
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court did not err in refusing Defendant’s request to give a
special instruction on self-defense as to the charge of
possession of a firearm by a felon.
No error.
Judge STEELMAN concurs.
Judge STROUD dissents with separate opinion.
NO. COA13-954
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Gaston County
No. 12 CRS 5522-23
ANTONIO ALONZO MONROE
On writ of certiorari from Judgment entered 11 April 2013
by Judge Yvonne Mims Evans in Superior Court, Gaston County.
Heard in the Court of Appeals 25 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
LaShawn S. Piquant, for the State.
Mark Hayes for Defendant.
STROUD, Judge, dissenting.
Because I believe that the evidence would permit a jury to
find that defendant was justified in possessing the firearm
under the Deleveaux test, I dissent, and I would reverse
defendant’s conviction for possession of a firearm by a felon
and remand for a new trial on these charges.
The majority opinion summarizes the evidence presented at
trial quite well, but draws a different conclusion from it than
I would; a properly instructed jury may also. First, I would
hold that the Deleveaux test does apply in North Carolina. Our
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cases have relied upon it several times, although only assuming
arguendo that it would apply because the facts in those cases
did not satisfy the test. The test is entirely consistent with
North Carolina’s common law defenses of justification and
necessity and provides useful guidance to the trial courts for
instructing juries. In the cases discussed by the majority
opinion, different factual situations were presented and, in
those cases, the jury instruction was not supported by the
evidence under the Deleveaux test. The factual situation here
is different and presents a question of fact that I believe a
jury should have the opportunity to resolve.
In Napier, the defendant possessed a gun when he went to
the victim’s property, where he stayed several hours and only
then shot the victim. State v. Napier, 149 N.C. App. 462, 463,
560 S.E.2d 867, 868 (2002). Thus, the defendant possessed the
gun well before he was potentially under any sort of threat
which would justify possession of the gun. In addition, the
jury’s assessment of the facts in Napier was quite different
than in this case. The Napier defendant was charged with
(1) discharging a firearm into occupied
property, (2) assault with a deadly weapon
with intent to kill inflicting serious
injury, (3) conspiracy to discharge a
firearm into occupied property, (4)
conspiracy to commit an assault with a
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deadly weapon, (5) possession of a firearm
by a felon on 4 July 1999, and (6)
possession of a firearm by a felon on 3 July
1999.
Id.The jury deadlocked and a mistrial was declared on the
first two charges. Id. The jury found defendant not guilty of
conspiracy and possession on 4 July and found defendant guilty
only of the charge of possession on 3 July. Id. This Court
noted that the evidence did not support defendant’s claim of
justification due to the lapse of time between when defendant
went to the victim’s property while carrying a gun and the
shooting: “[D]efendant asked Robert Ford and Brad Ford if they
wanted him to take the gun home; and defendant, while armed,
stayed on Robert Ford’s premises for several hours talking to
Robert Ford before the fight ensued.” Id. at 465, 560 S.E.2d at
869. Under these circumstances, defendant was not entitled to an
instruction on justification. Id.In Craig, the defendant was charged with assault with a
deadly weapon inflicting serious injury and possession of a
firearm by a felon. State v. Craig, 167 N.C. App. 793, 795, 606
S.E.2d 387, 388 (2005). An instruction as to self-defense was
given, but the trial court did not give the requested
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instruction as to justification for possession of the gun.1 Id.
at 794, 606 S.E.2d at 388. The jury found defendant guilty of
both charges. Id. at 795, 606 S.E.2d at 388. On appeal, failure
to give an instruction as to justification for possession of the
firearm was the only issue raised by defendant. Id. The Court
noted that the
uncontroverted evidence in this case shows
that after leaving the altercation,
Defendant kept the gun and took it with him
to a friend’s house on Dana Road. He
continued to hold it and carry it while
speaking with Hamilton. At that time,
Defendant was not under any imminent threat
of harm. Thus, the evidence did not support
giving a special instruction on
justification because there was a time
period where Defendant was under no imminent
threat while possessing the gun.
Id. at 796-97, 606 S.E.2d at 389 (citation omitted).
In Boston, the defendant was charged with and convicted of
second-degree trespassing and possession of a firearm by a
felon. State v. Boston, 165 N.C. App. 214, 215, 598 S.E.2d 163,
164 (2004). The evidence showed that the
defendant and Daniels were engaged in an on-
going conflict whereby in the week prior to
the shooting, Daniels threatened to kill
defendant, and on at least one prior
occasion Daniels fired a gun at defendant.
However, the evidence also tends to show
1
Although not clear from the opinion, the record from Craig
shows that a self-defense instruction was given.
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that on the day of the shooting, defendant
was observed walking through the apartment
complex carrying a pistol. The State’s
evidence also tended to show that defendant
chased Daniels around a parked car with the
gun in hand. Therefore, we hold that, as in
Napier, there is no evidence to support the
conclusion that defendant was under an
imminent threat of death or injury when he
made the decision to carry the gun.
Accordingly, the trial court did not err in
failing to instruct the jury on
justification as an affirmative defense.
Id. at 222, 598 S.E.2d at 167-68. Again, regardless of whether
defendant may have been justified in possessing the gun at the
moment of the shooting, the evidence showed that defendant
possessed the gun at a time entirely separate from the
altercation—when he was “walking through the apartment complex
carrying a pistol.” Id. at 222, 598 S.E.2d at 167.
In McNeil, the defendant was charged with and found guilty
of “first degree murder and possession of a firearm by a felon.”
State v. McNeil, 196 N.C. App. 394, 396, 674 S.E.2d 813, 815
(2009). As in this case, defendant did request and the trial
court gave an instruction on self-defense. Id. at 400, 674
S.E.2d at 817. Unlike the present case, the jury found
defendant guilty on all charges and rejected defendant’s claims
of self-defense. Id. The evidence as to the defendant’s
possession of the firearm in McNeil was as follows:
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On 15 March 2007, William Frederick Barnes
(“Barnes”) rode his bicycle up to the
passenger side window of Vashawn Tomlin’s
(“Tomlin”) car at approximately 10:00 a.m.
Tomlin testified that Barnes wanted to wash
Tomlin’s car. Approximately five minutes
later, Tomlin saw Defendant walk out of
Defendant’s house by Tomlin’s car and then
walk into another house. Defendant walked
out of the second house and spoke to Tomlin
and Barnes. Barnes asked Defendant, “What’s
up[?]” to which Defendant replied, “You got
a nerve speaking to me, I ain’t forgot what
you did, I was going with her then.” Barnes
asked Tomlin what Defendant was talking
about. Defendant tried to argue with Barnes,
and “ kept saying . . . ‘I’ll burn your
ass[.]’ ” Defendant also told Barnes he
would “put a hot one in him.”
Tomlin testified that Defendant walked back
into the first house and returned carrying a
shotgun. Defendant walked from his porch
toward Barnes, who was still sitting on a
bicycle and leaning against the door of
Tomlin’s car, and Defendant shot Barnes with
the shotgun. Tomlin testified Defendant
walked back toward his house, then turned
and walked into the street, stood over
Barnes, aimed the shotgun at Barnes and
fired. After shooting Barnes the second
time, Defendant walked back to his house and
stood in the doorway “looking crazy.”
Id. at 396-97, 674 S.E.2d at 815-16.
As to the defendant’s request for an instruction on
justification, the McNeil court stated that
As in Craig and Napier, the evidence in the
present case shows that Defendant possessed
the shotgun inside his home and away from
Barnes, at which time there was no imminent
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threat of death or serious bodily injury.
Without deciding the availability of the
justification defense in possession of a
firearm by a felon cases in North Carolina,
we hold that the evidence in this case did
not support giving a special instruction on
justification.
Id. at 406-07, 674 S.E.2d at 821 (citation omitted).
Overall, these cases support, rather than defeat,
defendant’s argument that the jury should have been instructed
on justification. The most significant difference between this
case and all of those above is that in those cases, there was an
obvious time period when the defendant possessed a gun but was
not under any imminent threat of death or great bodily harm.
Even if the those defendants may have been justified in
possessing a gun at the exact moment of the altercation—which
the juries all found they were not, by rejecting the self-
defense theory—they would still be guilty of possessing the gun
at a time completely separate from the altercation with the
victim.
Here, by contrast, the evidence, taken in the light most
favorable to defendant, showed that the entire time that
defendant possessed the gun Mr. Davis was standing outside of
the house with a gun, posing an imminent threat. One witness
testified that Mr. Davis said he was “going to stay out here
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until the door come open.” Therefore, there was evidence from
which a jury could reasonably conclude that defendant’s
possession of the firearm was justified for the entire time he
possessed it.
Moreover, unlike in the prior cases, the jury acquitted the
defendant of all homicide charges based upon self-defense.
Defendant was charged with first degree murder, but the jury was
presented with issues as to first degree murder, second degree
murder, and voluntary manslaughter and found defendant not
guilty of all of these. I disagree with the majority’s
statement that “the record does not indicate why the jury
acquitted Defendant of first-degree murder—whether on the basis
of self-defense or that the jury found that the State failed to
carry its burden to prove beyond a reasonable doubt that
Defendant murdered Davis.”
To the contrary, it is not disputed that defendant shot
Davis, and the jury acquitted defendant of first degree murder
as well as all lesser-included offenses. The only logical
inference we can draw from the jury’s verdict is that the jury
relied upon defendant’s claim of perfect self-defense. In none
of the cases discussed above did the jury believe the
defendants’ claims of self-defense, where that issue was
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presented. It is true that the facts presented might have
permitted a jury to reject a claim of self-defense, and that a
jury might have found that defendant could have used some other
means to protect himself or to avoid a confrontation with Davis,
but the jury has already considered that evidence and found in
favor of defendant. This means that the jury found that:
(1) it appeared to defendant and he
believed it to be necessary to kill the
deceased in order to save himself from
death or great bodily harm; and
(2) defendant’s belief was reasonable in
that the circumstances as they appeared
to him at that time were sufficient to
create such a belief in the mind of a
person of ordinary firmness; and
(3) defendant was not the aggressor in
bringing on the affray, i.e., he did
not aggressively and willingly enter
into the fight without legal excuse or
provocation; and
(4) defendant did not use excessive force,
i.e., did not use more force than was
necessary or reasonably appeared to him
to be necessary under the circumstances
to protect himself from death or great
bodily harm.
State v. Lyons, 340 N.C. 646, 661, 459 S.E.2d 770, 778 (1995)
(citation and quotation marks omitted).
Given the jury’s determination as to self-defense as to the
shooting here, it is entirely possible, and indeed probable,
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that the jury would have also found, if properly instructed,
that the four elements of the justification defense were
established:
(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.
United States v. Deleveaux, 205 F.3d 1292, 1297, cert. denied,
530 U.S. 1264, 147 L.Ed. 2d 988 (2000).
The elements of perfect self-defense and justification are
slightly different, but not much, particularly under the facts
as presented in this case. The gun defendant used was not his
own; he got it from Gordon just prior to the shooting—not hours
or days before, but minutes—while Davis was just outside the
house, threatening defendant. The issue of the timing of
defendant’s possession of the gun is crucial. It is possible
that a jury could find that he possessed it longer than
necessary for his own protection, but the facts certainly
present a jury question in that regard, and that is sufficient
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for defendant to be entitled to the instruction.2
This case presents one of those “most extraordinary
circumstances” where the justification defense is applicable.
It is odd that a man could be acquitted for all forms of
homicide based on the theory that he had a clear right of self-
defense, but he would be convicted for using the gun that the
jury found to be necessary under the circumstances to protect
himself from “death or great bodily harm.” Lyons, 340 N.C. at
661, 459 S.E.2d at 778. This is not one of those cases where the
jury already evaluated any claims of self-defense and rejected
them, as all of the prior cases from this court cited by the
majority were. Indeed, it is difficult to imagine a situation
in which a defendant would be entitled to an instruction on
justification for possession of a firearm if defendant here was
not. I would therefore specifically adopt the justification
defense as laid out in Deleveaux, reverse defendant’s
convictions for possession of a firearm by a felon and habitual
felon, and remand for a new trial on these matters. Therefore,
I respectfully dissent.
2
See State v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569
(1982) (“A defendant is entitled to an instruction on self-
defense if there is any evidence in the record from which it can
be determined that it was necessary or reasonably appeared to be
necessary for him to kill his adversary in order to protect
himself from death or great bodily harm.”).
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