State v. Swindell
| Decision Date | 04 November 2022 |
| Docket Number | 294A21-1 |
| Citation | 2022 NCSC 113 |
| Parties | STATE OF NORTH CAROLINA v. HAROLD EUGENE SWINDELL |
| Court | North Carolina Supreme Court |
Heard in the Supreme Court on 29 August 2022.
Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 278 N.C.App. 758 2021-NCCOA-408, finding prejudicial error in the trial court's denial of defendant's request for a jury instruction on justification as a defense to the charge of possession of a firearm by a felon and reversing the judgment entered on 27 November 2018 by Judge Jeffery K. Carpenter in Superior Court, Bladen County.
Joshua H. Stein, Attorney General, by Marc X. Sneed, Special Deputy Attorney General, for the State-appellant.
Leslie Rawls for defendant-appellee.
¶ 1 A Bladen County jury convicted defendant of second-degree murder and possession of a firearm by a felon. Based upon a dissent in the Court of Appeals, the issue before this Court is whether the Court of Appeals erred in determining the trial court committed prejudicial error in denying defendant's request for a jury instruction on justification as a defense to the charge of possession of a firearm by a felon. For the reasons stated below, we reverse the decision of the Court of Appeals.
¶ 2 On June 5, 2017, defendant was charged with one count of first-degree murder and one count of possession of a firearm by a felon. Defendant's matter came on for trial on November 13, 2018.
¶ 3 At trial, the evidence tended to show that on May 17, 2017, defendant received a phone call from his brother, Darryl Swindell. Darryl "got into it with some guys" to whom he owed drug money. Defendant and his friend Broadus Justice drove to Darryl's residence at Oakdale Apartments and observed three men, Anthony Smith, Bobby Lee, and Cequel Stephens, "beating on" Darryl. Defendant helped break up the fight, and as defendant was pulling the men off his brother, Anthony Smith screamed: It took defendant about three minutes to break up the fight, after which he left Oakdale Apartments with Darryl and Broadus. The three men returned to defendant's residence.
¶ 4 Darryl received a phone call from his wife who was still at Oakdale Apartments. When she expressed concern for her safety, Darryl asked defendant to take him back to Oakdale Apartments. Darryl stated that if there was additional trouble, "you know, I'll fight them." Defendant and Broadus drove Darryl back to Oakdale Apartments and then spent approximately twenty-five minutes "hanging out" outside the apartments. Defendant testified that he returned to Oakdale Apartments to ensure that no fights took place.
¶ 5 At some point, defendant noticed Cequel Stephens, Bobby Ratliff, Anthony Smith, and Anthony's brother, Lonnie Smith, walking towards him. Defendant knew of Lonnie and believed him to be "the leader," "pretty brutal," and to have a "bad reputation" for violence. Lonnie asked defendant if he had fought his brother, Anthony, earlier in the day and defendant responded that he was trying to break up a fight. Lonnie then threw several punches at defendant, and a crowd formed as the two began to fight.
¶ 6 Defendant testified that he fell backwards onto the ground during the fight when he slipped on "some form of trash[.]" According to defendant, Anthony Smith yelled at the people in the crowd to "[b]ack the F up." Defendant testified that he observed Broadus and Darryl back away. According to defendant, Broadus is a large man, and defendant thought that Lonnie had a gun when he saw Broadus back away.
¶ 7 At that point, defendant testified that he saw "a gun on the ground," heard Anthony Smith say "[p]op him[,] [p]op him," and heard Darryl say "[w]atch out[,] [h]e got a gun." Defendant testified that he saw Lonnie reach for the gun, at which point defendant "picked it up, basically, and fired."
¶ 8 A witness to the altercation, Shawbreana Thurman, testified that defendant "never f[e]ll" during the fight with Lonnie. Ms. Thurman testified that Cequel Stephens approached the side of Lonnie and appeared as if "he wanted to fight [defendant] too." At that point, defendant drew a gun from the front of his pants and said "[b]ack up." According to Ms. Thurman, Cequel then fled and Lonnie was "trying to run" when defendant shot him. Ms. Thurman testified that Lonnie fell to the ground and defendant approached Lonnie and shot him again.
¶ 9 An autopsy revealed that defendant shot Lonnie two or three times. One projectile entered Lonnie's back and passed through his right kidney and liver before exiting from the left part of his chest. Lonnie also sustained gunshot wounds to both of his thighs, although the medical examiner was unable to determine whether these wounds were the result of one or two shots. The medical examiner testified that the first gunshot wound, which entered Lonnie's back, would have been fatal.
¶ 10 During trial, defendant's counsel requested a jury instruction on justification as a defense to the charge of possession of a firearm by a felon. The trial court denied this request, and defendant's counsel properly preserved an objection to this denial after the jury was instructed on the charges. On November 27, 2018, defendant was convicted of second-degree murder and possession of a firearm by a felon. He was sentenced to prison for 300-372 months and 19-32 months, respectively. Defendant timely appealed to the Court of Appeals.
¶ 11 On appeal, defendant argued that the trial court erred in refusing to provide a jury instruction on justification as an affirmative defense to the charge of possession of a firearm by a felon. State v. Swindell, 278 N.C.App. 758, 2021-NCCOA-408, ¶ 10. Relying on this Court's precedent in State v. Mercer, 373 N.C. 459, 838 S.E.2d 359 (2020), a divided panel of the Court of Appeals reversed defendant's conviction and remanded for a new trial after determining that defendant was entitled to a jury instruction on justification and that the trial court committed prejudicial error by denying defendant's requested instruction. Swindell, 278 N.C.App. 758, 2021-NCCOA-408, ¶ 24. The State appealed based upon a dissent.
¶ 12 The State contends that the Court of Appeals erred in reversing defendant's conviction and remanding for a new trial based upon its conclusion that the trial court had committed prejudicial error in denying defendant's request for a jury instruction on justification. Specifically, the State argues that the evidence in this case does not support all four elements of the justification defense as required by Mercer. We agree and conclude that the Court of Appeals erred in reversing defendant's conviction and remanding for a new trial.
¶ 13 It is unlawful for "any person who has been convicted of a felony to . . . possess, or have in his custody, care, or control any firearm." N.C. G.S. § 14-415.1(a) (2021). However, this Court has held that "in narrow and extraordinary circumstances," the affirmative defense of "justification may be available as a defense to a charge under N.C. G.S. § 14-415.1." State v. Mercer, 373 N.C. 459, 463, 838 S.E.2d 359, 362 (2020).
¶ 14 The affirmative defense of justification "does not negate any element of" the offense charged, and "a defendant has the burden to prove his or her justification defense to the satisfaction of the jury." Id. at 463, 838 S.E.2d at 363. There are four elements that a defendant must show to establish justification as a defense to a charge pursuant to N.C. G.S. § 14-415.1:
(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.
Id. at 464, 838 S.E.2d at 363 (quoting U.S. v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000)).
¶ 15 "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." Id. at 462, 838 S.E.2d at 362 (citing State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988)). "If a 'request be made for a special instruction which is correct in itself and supported by evidence, the court must give the instruction at least in substance.'" State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600, 605-06 (1988) (emphasis added) (quoting State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690, 691 (1956)).
¶ 16 Thus, to determine whether the trial court erred in denying defendant's request for a justification instruction, we analyze whether the evidence, taken in the light most favorable to defendant, establishes the elements of the defense as set forth in Mercer. However, because the dissenting opinion in the Court of Appeals concluded that the second and third elements of the defense were not supported by the evidence, we limit our analysis to these elements only.[1] See Clifford v. River Bend Plantation, Inc., 312 N.C. 460, 463, 323 S.E.2d 23, 25 (1984) (); see also N.C. R. App. P. 16(b).
¶ 17 The second element of the justification defense requires that a defendant show he "did not negligently...
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