State v. Ponder
| Decision Date | 15 May 2012 |
| Docket Number | No. COA11–1365.,COA11–1365. |
| Citation | 725 S.E.2d 674 |
| Parties | STATE of North Carolina v. Robert Marshall PONDER, Jr. |
| Court | North Carolina Court of Appeals |
STATE of North Carolina
v.
Robert Marshall PONDER, Jr.
No. COA11–1365.
Court of Appeals of North Carolina.
May 15, 2012.
Appeal by defendant from judgment entered 19 July 2011 by Judge Laura J. Bridges in Rutherford County Superior Court. Heard in the Court of Appeals 1 May 2012.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant.
STEELMAN, Judge.
Where there was a time period in which the defendant, a convicted felon, was under no threat while possessing a firearm, the trial court did not err in refusing to instruct the jury on the defenses of duress, compulsion, and necessity.
On 28 July 2010, Robert Marshall Ponder (“defendant”) shot Kevin Calhoun with a .22 rifle. Defendant was subsequently indicted for possession of a firearm by a felon and for being an habitual felon. On 19 July 2011, a jury found defendant guilty of possession of a firearm by a felon and of being an habitual felon. Defendant was sentenced to 145–185 months imprisonment.
Defendant appeals.
In his only argument on appeal, defendant contends that the trial court erred in denying defendant's written request for an instruction on the defense of duress, compulsion, or necessity. We disagree.
With regard to requests for jury instructions, this Court has held:
In North Carolina, requests for special jury instructions are allowable pursuant to G.S. §§ 1–181 and 1A–1, Rule 51(b). It is well settled that the trial court must give the instructions requested, at least in substance, if they are proper and supported by the evidence. The proffered instruction must ... contain a correct legal request and be pertinent to the evidence and the issues of the case. However, the trial court may exercise discretion to refuse instructions based on erroneous statements of the law.
State v. Napier, 149 N.C.App. 462, 463–64, 560 S.E.2d 867, 868–69 (2002) (citations omitted) (internal quotation marks omitted) (alteration in original). Federal courts have adopted a defense of duress or necessity to the federal offense of being a convicted felon in possession of a firearm, which has also been called a defense of justification. U.S. v. Deleveaux, 205 F.3d 1292, 1295–97 (11th Cir.2000).
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State v. Swindell
... ... v. Monroe , 233 N.C.App. 563, 570, 756 S.E.2d 376, 381 ... (2014); State v. Edwards , 239 N.C.App. 391, 396, 768 ... S.E.2d 619 (2015); State v. McNeil , 196 N.C.App ... 394, 398, 674 S.E.2d 813, 821 (2009); State v ... Ponder , No. COA11-1365, 220 N.C.App. 525, 725 S.E.2d ... 674, 2012 WL 1689526 (N.C. Ct. App. May 15, 2012) ... (unpublished) (all holding the defendant was not entitled to ... the justification defense because there was no imminent ... threat at the time the defendant acquired the ... ...
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State v. Swindell
...(2015) ; State v. McNeil , 196 N.C. App. 394, 398, 674 S.E.2d 813, 821 (2009) ; State v. Ponder , No. COA11-1365, 220 N.C. App. 525, 725 S.E.2d 674, 2012 WL 1689526 (N.C. Ct. App. May 15, 2012) (unpublished) (all holding the defendant was not entitled to the justification defense because th......
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State v. Monroe
...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 acquire......