State v. Swindell

• Decision Date: 03 August 2021
• Docket Number: No. COA20-263,COA20-263
• Citation: 278 N.C.App. 758,863 S.E.2d 441
• Parties: STATE of North Carolina, v. Harold Eugene SWINDELL, Defendant.
• Court: North Carolina Court of Appeals

278 N.C.App. 758

863 S.E.2d 441

STATE of North Carolina,

v.Harold Eugene SWINDELL, Defendant.

No. COA20-263

Court of Appeals of North Carolina.

Filed August 3, 2021

Attorney General Joshua H. Stein, by Special Deputy Attorney General Marc X. Sneed, for the State.

Leslie Rawls, Charlotte, for Defendant-Appellant.

WOOD, Judge.

¶ 1 Defendant Harold Swindell ("Defendant") appeals from his convictions of second-degree murder and possession of a firearm by a felon. On appeal, Defendant contends the trial court erred when it declined to instruct the jury on justification as an affirmative defense to possession of a firearm by a felon. We agree.

I. Factual and Procedural Background

¶ 2 On May 17, 2017, Defendant received a phone call from his brother, Darryl. Darryl called Defendant because he was worried about a potential physical altercation at Darryl's apartment complex. Defendant and his friend, Broadus Justice ("Justice"), traveled to Darryl's complex, where they witnessed Darryl engaging in a physical altercation with James Ratliff, Anthony Smith ("Anthony"), Bobby Lee Ratliff, and Cequel Stephens ("Cequel"). Defendant and Justice broke up the fight. Defendant, Justice, and Darryl then returned to Defendant's residence.

¶ 3 Darryl's wife called shortly thereafter, requesting Darryl return to their apartment complex. When the three returned to Darryl's apartment complex, Defendant remained outside and conversed with Darryl's neighbors. Defendant then noticed Lonnie Smith ("Lonnie") approach with James Ratliff, Anthony, Bobby Lee Ratliff, and Cequel.

¶ 4 Shawnbrena Thurman ("Thurman"), a resident of the apartment complex, testified at trial. According to Thurman, Lonnie asked Defendant, "So you say somebody going to die?" Defendant responded he had no intention of killing anyone or getting into an altercation. In response, Lonnie began to hit Defendant in the face. Thurman testified she did not observe Defendant fall when Lonnie punched him. Thurman testified that, after the fight began, Cequel also engaged in the physical altercation. A crowd formed around them.

¶ 5 Thurman further testified Defendant came to the complex with a firearm and that he never dropped it during the fight with Lonnie. According to Thurman, Defendant yelled, "Back up," and Cequel retreated. Lonnie and Defendant continued to fight for a few moments after Cequel ran. As Lonnie turned to run, Thurman watched as Defendant shot him. Thurman testified she never saw Lonnie with a gun. However, Thurman later testified, "[Lonnie] didn't never have a gun. He didn't never have a gun. He was trying to fight. And he pulled a gun out of his — and I don't even think he knew that he had a gun." She testified that once Lonnie fell, Defendant stood over him and shot again. Shaquay Mullins ("Mullins"), another resident, testified she observed Defendant pull a gun from his pants and shoot Lonnie.

¶ 6 Defendant's recollection of the altercation differed from Thurman and Mullins's. Defendant testified that when Lonnie initially hit him, he took a step back, slipped, and fell onto his buttocks. According to Defendant, Anthony yelled "[b]ack the F up." Defendant observed the crowd begin to retreat. Defendant believed Anthony had a gun because Justice also retreated. In Defendant's opinion, Justice was a large man who would not retreat from a smaller man like Anthony unless he had a firearm. Defendant testified he heard his brother warn that Anthony had a gun.

¶ 7 Defendant further testified he observed a gun a foot or two in front of him and reached up from the ground to obtain the gun before Lonnie could do so. Defendant admitted he intentionally fired the weapon three times because he believed he was about to be killed. Defendant testified he had this belief because he had heard Anthony yell, "Pop him." After Lonnie was shot, Defendant retreated to his vehicle and left. Defendant called 911 and reported the shooting once he had returned to his residence.

¶ 8 Dr. Lauren Scott ("Dr. Scott") performed an autopsy on Lonnie and testified as an expert in forensic pathology at trial. According to Dr. Scott, Lonnie was shot two or three times. The autopsy report reveals one bullet had an upward trajectory, entering Lonnie's back, and traveling through organs into his chest. Another bullet entered Lonnie's right thigh, "centered 28.5 [inches] to the right heel[,]" and exiting "centered 27.5 [inches] to the right heel." A third wound track revealed a gunshot wound in Lonnie's left thigh. The autopsy report speculates whether the third wound track "represent[s] a re-entrance wound ... or a separate gunshot wound."

¶ 9 At trial, Defendant requested a jury instruction on the affirmative defense of justification. The trial court denied this request. Defendant's counsel objected and renewed his objection after the jury received its instructions. On appeal, Defendant asserts the trial court erred in failing to instruct the jury on the justification defense.

II. Discussion

¶ 10 Defendant's sole argument on appeal is that the trial court erred in declining to instruct the jury on the affirmative defense of justification to possession of a firearm by a felon. "In North Carolina, requests for special jury instructions are allowable pursuant to [N.C. Gen. Stat.] §§ 1-181 and 1A-1, Rule 51(b)." State v. Napier , 149 N.C. App. 462, 463, 560 S.E.2d 867, 868 (2002). A trial court must give all requested jury instructions if the requested instructions "are proper and supported by the evidence." State v. Craig , 167 N.C. App. 793, 795, 606 S.E.2d 387, 388 (2005) (citation omitted). To determine "whether a defendant is entitled to a requested instruction, [appellate courts] review de novo whether each element of the defense is supported by the evidence, when taken in the light most favorable to [the] defendant." State v. Mercer , 373 N.C. 459, 462, 838 S.E.2d 359, 362 (2020) (citation omitted); see also 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 defendant to support an instruction for an affirmative defense, "the instruction must be given even though the State's evidence is contradictory."(citation omitted)). A trial court's erroneous failure to give a requested instruction "is prejudicial and requires a new trial only if there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial." State v. Castaneda , 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009) (citation and quotation marks omitted).

¶ 11 Under N.C. Gen. Stat. § 14-415.1(a), it is "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." N.C. Gen. Stat. § 14-415.1(a) (2020). A person found in violation of Section 14-415.1(a) is guilty of a Class G felony. N.C. Gen. Stat. § 14-415.1(a).

¶ 12 Our Supreme Court has recently adopted justification as an affirmative defense to possession of a firearm by a felon.

State v. Mercer , 373 N.C. 459, 838 S.E.2d 359 (2020).¹ For a defendant to be entitled to a jury instruction on justification, he must meet a four-part test:

(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) ); Craig , 167 N.C. App. at 796, 606 S.E.2d at 389. The defense of justification has been reserved for "narrow and extraordinary circumstances." Mercer , 373 N.C. at 463, 838 S.E.2d at 362. The justification instruction must be given when evidence for each factor is presented. Id. at 464, 838 S.E.2d at 363.

¶ 13 Our case law has placed an emphasis on the timing of a defendant's possession of the firearm. To be entitled to the justification defense, a defendant must only possess the firearm while "under unlawful and present, imminent, and impending threat." Id. at 464, 838 S.E.2d at 363 (citation omitted). In State v. Napier , 149 N.C. App. 462, 560 S.E.2d 867 (2002), this Court held the justification defense is inapplicable to a defendant who voluntarily armed himself several hours prior to a threat. Id. at 464, 560 S.E.2d at 868-69. In Napier , the defendant was a convicted felon who had an ongoing dispute with a neighbor. Id. at 462, 560 S.E.2d at 868. The defendant walked to his neighbor's property and stayed there for several hours before shooting the neighbor's son. Id. at 463-65, 560 S.E.2d at 868-69. As the defendant was armed during a period where there was no "unlawful and present, imminent, and impending threat," this Court held he was not entitled to a justification instruction. Id. at 465, 560 S.E.2d at 869 ; see also State v. Boston , 165 N.C. App. 214, 222, 598 S.E.2d 163, 167-68 (2004) ; State 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 firearm).

¶ 14 In State v. Craig , 167 N.C. App. 793, 606 S.E.2d 387 (2005), this Court declined to expand the justification doctrine to include instances where the defendant possessed the firearm after the threat had passed, "because there was a time period where [the d]efendant was under no...