State v. Mercer

• Decision Date: 28 February 2020
• Docket Number: No. 257PA18,257PA18
• Citation: 838 S.E.2d 359,373 N.C. 459
• Parties: STATE of North Carolina v. Sydney Shakur MERCER
• Court: North Carolina Supreme Court

373 N.C. 459

838 S.E.2d 359

STATE of North Carolina

v.Sydney Shakur MERCER

No. 257PA18

Supreme Court of North Carolina.

Filed February 28, 2020

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.

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. 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.

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, 373 N.C. 134, 833 S.E.2d 779, 787 (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 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

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 , ––– N.C.App. ––––, 833 S.E.2d 193, 197 (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 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

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