Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/26/2021
E.g., 09/26/2021
State v. Bradshaw, 366 N.C. 90 (June 14, 2012)

Affirming an unpublished opinion below, the court held that the trial court properly denied the defendant’s motion to dismiss charges of trafficking by possession and possession of a firearm by a felon. The State presented sufficient evidence to support the jury’s determination that the defendant constructively possessed drugs and a rifle found in a bedroom that was not under the defendant’s exclusive control. Among other things, photographs, a Father’s Day card, a cable bill, a cable installation receipt, and a pay stub were found in the bedroom and all linked the defendant to the contraband. Some of the evidence placed the defendant in the bedroom within two days of when the contraband was found.

Officers responding to a report of a suspicious vehicle found the defendant and a female passenger parked in a white pickup truck on the side of the road. When an officer asked if there was anything illegal in the vehicle, the defendant replied “you know I like my pot.” The passenger consented to a search of her handbag, which revealed marijuana, and officers began searching the truck. A backpack found in the back of the truck contained marijuana, paraphernalia, and a handgun in an unlocked box. The defendant stated that the drugs were his. The defendant’s sister was called to come get the vehicle, and when she arrived she told the officers that the gun was hers and she had placed it in the backpack without the defendant’s knowledge. The sister also testified to ownership of the gun at a court hearing. The case went to trial before a jury, and the defendant was convicted of possession of a firearm by a felon, possession of marijuana and drug paraphernalia, and attaining habitual felon status.

On appeal, the defendant argued that his motion to dismiss the felon in possession charge should have been granted because there was insufficient evidence that he was in possession of the firearm. The appellate court disagreed and held that the motion to dismiss was properly denied. At trial, the state proceeded on a theory of constructive possession, arguing that the defendant was not in actual possession of the gun but he was aware of its presence and had the power and intent to control its disposition and use. The appellate court agreed that there was sufficient evidence of constructive possession to survive a motion to dismiss in this case: defendant was the owner and driver of the truck; it was his backpack with his belongings inside of it; and he did not express surprise when the gun was found or disclaim ownership of it. “The State presented substantial evidence of constructive possession because Defendant’s power to control the contents of his vehicle is sufficient to present an inference of knowledge and possession of the firearm found therein.”

The court rejected the defendant’s argument that the evidence was insufficient to support an instruction on actual possession of the firearm in question. Actual possession requires that a party have physical or personal custody of the item. The case arose out of a drug transaction between an undercover officer and the defendant and others in a vehicle at a prearranged transaction site. The undercover officer testified that the defendant was fidgeting, looking around, and acting nervous as if he was “the lookout.” Another officer involved in the arrest saw the defendant in the front passenger seat with his hands “low” and not visible. When the officer opened the front passenger door, he saw a weapon between the seat and the passenger side door, where the defendant’s right hand had been. A photograph confirmed the location of a weapon. Although the firearm was not found on the defendant, the evidence was sufficient to show that he had “personal custody” of it and this was sufficient to support an instruction on actual possession.

In this possession of methamphetamine and felon in possession of a firearm case, the trial court did not err by instructing the jury that the defendant’s status as the driver of a stopped vehicle was sufficient to support an inference that he constructively possessed both methamphetamine and a firearm, even though another person was present in the vehicle. The defendant was stopped by officers while driving a beige Chevrolet pickup truck. Law enforcement had received drug complaints about a man named Sanchez. Officers conducted a two-hour surveillance of Sanchez and the defendant as they drove to several hotels in the area. Both Sanchez and the defendant were seen driving the truck during the two hour surveillance. Officers stopped the vehicle. The defendant was in the driver’s seat; Sanchez was in the passenger seat. A K-9 alert lead to a search of the vehicle. Officers found bags and backpacks in the truck bed that Sanchez stated belonged to him. While searching one of the backpacks they found pills and a notebook containing Sanchez’s name. Another backpack contained a compass with .2 g of a crystalline substance (later determined to be methamphetamine), a digital scale and counterweight, and a notebook containing entries in the defendant’s handwriting concerning the defendant’s wife. A revolver was found beneath the passenger seat. A later strip search of the defendant produced 39 pills, 15 of which were later determined to be diazepam. The defendant was indicted for possession of methamphetamine, possession of a firearm by a felon, and other charges. At the charge conference, the State requested an instruction stating that an inference of constructive possession can arise from evidence showing that a defendant was the custodian of a vehicle in which contraband was found. Over the defendant’s objection, the trial court gave the instruction. The defendant was found guilty and appealed.

            There was sufficient evidence to convict the defendant of possession of methamphetamine. Because the methamphetamine was found in a backpack in the bed of the truck, the State was required to show constructive possession. As the vehicle’s driver, the defendant’s dominion and control over the truck is sufficient to give rise to an inference of constructive possession. The court rejected the defendant’s argument that his dominion and control over the truck was insufficient because he was not the only occupant of the vehicle. The court went on to conclude that while the defendant’s status as the driver might be sufficient to uphold his conviction for possession of methamphetamine, the State also presented additional incriminating evidence to support an inference of constructive possession. Specifically, the defendant’s frequent stops at hotels and gas stations, indicative of drug transactions; the defendant’s possession of other controlled substances; and that the backpack in which the methamphetamine was found contained the defendant’s personal belongings.

            The evidence was also sufficient to show constructive possession of the firearm. As with possession of a controlled substance, the defendant’s dominion and control as the driver of the truck was sufficient to give rise to an inference of constructive possession. The court again rejected the defendant’s argument that his non-exclusive control over the truck required the State to provide additional incriminating evidence. Again, however, even though the defendant’s status as the driver is sufficient to give rise to an inference of possession, the State presented additional incriminating evidence in this case including the defendant’s proximity to the firearm and his behavior consistent with the sale of drugs.

In this felon in possession case, there was insufficient evidence that the defendant possessed the rifle in question. While attempting to locate the defendant, deputies established a perimeter around a large section of woods and deployed a canine, Max, to track human sent in the area. Following a scent, Max brought the officers to a loaded assault rifle. While Max continued to track the scent, another man emerged from the woods. After losing the scent and taking a rest break outside of the woods, Max resumed tracking, picking up a scent, and leading the officers to the defendant, who was discovered lying on the ground. The distance between where the rifle was recovered and where the defendant was found was between 75 and 100 yards. No evidence was presented regarding ownership of the rifle. DNA swabs taken from the rifle and compared to the defendant’s DNA were inconclusive. No other evidence connected the defendant to the rifle. Notwithstanding the fact that Max was trained not to veer off of one human sent and on to another, the rifle was not found in the defendant’s physical possession or in the immediate area over which he had the ability to control. Additionally, another man was present in the woods. The court noted that it had upheld convictions where defendants were identified as the perpetrator by tracking canines but found those cases distinguishable. Here, testimony of the canine’s tracking behavior constituted the only evidence offered to establish constructive possession of the rifle. In one of those prior cases, hair and shoe print evidence also was presented to identify the defendant as the perpetrator. In the other, the canines were offered a scent source of the defendant and the codefendant and were tracking a known sent, as compared to the case at hand where Max was tracking an unknown scent. Also, in neither of the prior cases did the canine lose the track, take a break, and then resume. Additionally, here the defendant was not alone in the area and no other evidence linked him to the rifle or the site where it was recovered. The court concluded:

The officers’ testimony is insufficient to establish any link between Defendant and the firearm. The canine tracking evidence on an unknown scent fails to raise, as a matter of law, a reasonable inference of either actual or constructive possession of a firearm by Defendant as a convicted felon. Viewed in the light most favorable to the State, the evidence raises only a “suspicion [or] conjecture” that Defendant possessed the rifle. The trial court erred in denying Defendant’s motion to dismiss. 

State v. McKiver, 247 N.C. App. 614 (May. 17, 2016) rev’d on other grounds, 369 N.C. 652 (Jun 9 2017)

The court held that the trial court did not err in denying the defendant’s motion to dismiss a charge of felon in possession of a firearm, rejecting the defendant’s argument that there was insufficient evidence establishing that he had constructive possession of the weapon. The evidence showed, among other things, that an anonymous 911 caller saw a man wearing a plaid shirt and holding a gun in a black car beside a field; that someone saw that man dropped the gun; that an officer saw the defendant standing near a black Mercedes wearing a plaid shirt; that the defendant later returned to the scene and said that the car was his; and that officers found a firearm in the vacant lot approximately 10 feet from the Mercedes. This evidence was sufficient to support a reasonable juror in concluding that additional incriminating circumstances existed--beyond the defendant’s mere presence at the scene and proximity to where the firearm was found--and thus to infer that he constructively possessed the firearm.

In a possession of a firearm by a felon case, the State failed to produce sufficient evidence that the defendant had constructive possession of the rifle. The rifle, which was registered to the defendant’s girlfriend was found in a car registered to the defendant but driven by the girlfriend. The defendant was a passenger in the car at the time. The rifle was found in a place where both the girlfriend and the defendant had equal access. There was no physical evidence tying the defendant to the rifle; his fingerprints were not found on the rifle, the magazine, or the spent casing. Although the gun was warm and appeared to have been recently fired, there was no evidence that the defendant had discharged the rifle because the gunshot residue test was inconclusive. Although the defendant admitted to an officer that he knew that the rifle was in the car, awareness of the weapon is not enough to establish constructive possession. In sum, the court concluded, the only evidence linking the defendant to the rifle was his presence in the vehicle and his knowledge that the gun was in the backseat.

In a felon in possession case, there was sufficient evidence that the defendant had constructive possession of the firearm. The defendant was driving a rental vehicle and had a female passenger. The gun was in a purse in the car’s glove container. The defendant was driving the car and his interactions with the police showed that he was aware of the vehicle’s contents. Specifically, he told the officer that the passenger had a marijuana cigarette and that there was a gun in the glove container.

(1) In a felon in possession case, evidence that the defendant was “playing with” the guns in question “likely” constituted sufficient evidence to support an instruction on actual possession of the guns. (2) The trial court erred by instructing the jury on constructive possession of the guns. The defendant did not have exclusive control of the apartment where the guns were found (the apartment was not his and he was not staying there; numerous people were at the apartment when the gun was found but the defendant himself was not present at that time). Thus, the State was required to show evidence of “other incriminating circumstances” to establish constructive possession. The court rejected the State’s argument that the fact that the defendant said he had played with the gun and that his fingerprints were on it constituted other incriminating circumstances, reasoning that showed actual not constructive possession. The court also found evidence that the defendant saw the gun in the apartment when another person brought it there insufficient to establish constructive possession.

(1) For purposes of a felon in possession charge, the evidence was insufficient to establish that the defendant possessed a firearm found along the route of his flight by vehicle from an officer. The defendant fled from an officer attempting to make a lawful stop. The officer did not see a firearm thrown from the defendant’s vehicle; the firearm was found along the defendant’s flight route several hours after the chase; the firearm was traced to a dealer in Winston-Salem, where the other two occupants of the defendant’s vehicle lived; and during the investigation a detective came to believe that one of the vehicle’s other occupants owned the firearm. (2) The evidence was sufficient to show that the defendant possessed a shotgun found at his residence. The shotgun was found in the defendant’s closet along with a lockbox containing ammunition that could be used in the shotgun, paychecks with the defendant’s name on them, and the defendant’s parole papers. Also, the defendant’s wife said that the defendant was holding the shotgun for his brother.  

There was sufficient evidence that the defendant constructively possessed a gun found in a van to support charges of carrying a concealed weapon and possession of a firearm by a felon. The fact that the defendant was the driver of the van gave rise to an inference of possession. Additionally, other evidence showed possession: the firearm was found on the floor next to the driver’s seat, in close proximity to the defendant; the defendant admitted that he owned the gun; and this admission was corroborated by a passenger in the van who had seen the defendant in possession of the weapon that afternoon, and remembered that the defendant had been carrying the gun in his pants pocket and later placed it on the van floor.

There was sufficient evidence that the defendant constructively possessed the firearm. The defendant was identified as having broken into a house from which a gun was stolen. The gun was found in a clothes hamper at the home of the defendant’s ex-girlfriend’s mother. The defendant had arrived at the home shortly after the breaking and entering, entering through the back door and walking past the hamper. When the defendant was told that police were “around the house,” he fled to the front porch, where officers found him. A vehicle matching the description of the getaway car was parked outside.

There was sufficient evidence of constructive possession. When a probation officer went to the defendant’s cabin, the defendant ran away; a frisk of the defendant revealed spent .45 caliber shells that smelled like they had been recently fired; the defendant told the officer that he had been shooting and showed the officer boxes of ammunition close to the cabin, of the same type found during the frisk; a search revealed a .45 caliber handgun in the undergrowth close to the cabin, near where the defendant had run. 

The evidence was sufficient to establish possession supporting convictions of felon in possession and carrying concealed where the defendant ran through a field in a high traffic area, appeared to have something heavy in his back pocket and to make throwing motions from that pocket, and a clean dry gun was found on the wet grass.

There was sufficient evidence of constructive possession to sustain conviction for possession of a firearm by a felon. 

G.S. 14-415.1(a), proscribing the offense of felon in possession of a firearm, does not apply to the plaintiff, who had received a Pardon of Forgiveness from the NC Governor for his prior NC felony. The court relied on G.S. 14-415.1(d), which provides in part that the section does not apply to a person who “pursuant to the law of the jurisdiction in which the conviction occurred, has been pardoned.”

The court per curiam affirmed the decision below, Johnston v. State, 224N.C. App. 282 (Dec. 18, 2012), which reversed the trial court’s ruling that G.S. 14-415.1 (proscribing the offense of felon in possession of a firearm) violated the plaintiff’s substantive due process rights under the U.S. and N.C. constitutions and remanded to the trial court for additional proceedings. The court of appeals also reversed the trial court’s ruling that the statute was facially invalid on procedural due process grounds, under both the U.S. and N.C. constitutions.

With one justice taking no part in consideration of the case, an equally divided court left undisturbed the following opinion below, which stands without precedential value:

Baysden v. North Carolina, 217 N.C. App. 20 (Nov. 15, 2011). Over a dissent, the court of appeals applied the analysis of Britt and Whitaker and held that the felon in possession of a firearm statute was unconstitutional as applied to the plaintiff. The plaintiff was convicted of two felony offenses, neither of which involved violent conduct, between three and four decades ago. Since that time he has been a law-abiding citizen. After his firearms rights were restored, the plaintiff used firearms in a safe and lawful manner. When he again became subject to the firearms prohibition because of a 2004 amendment, he took action to ensure that he did not unlawfully possess any firearms and has “assiduously and proactively” complied with the statute since that time. Additionally, the plaintiff was before the court not on a criminal charge for weapons possession but rather on his declaratory judgment action. The court of appeals concluded: “[W]e are unable to see any material distinction between the facts at issue in . . . Britt and the facts at issue here.” The court rejected the argument that the plaintiff’s claim should fail because 2010 amendments to the statute expressly exclude him from the class of individuals eligible to seek restoration of firearms rights; the court found this fact irrelevant to the Britt/Whitaker analysis. The court also rejected the notion that the determination as to whether the plaintiff’s prior convictions were nonviolent should be made with reference to statutory definitions of nonviolent felonies, concluding that such statutory definitions did not apply in its constitutional analysis. Finally, the court rejected the argument that the plaintiff’s challenge must fail because unlike the plaintiff in Britt, the plaintiff here had two prior felony convictions. The court refused to adopt a bright line rule, instead concluding that the relevant factor is the number, age, and severity of the offenses for which the litigant has been convicted; while the number of convictions is relevant, it is not dispositive.

Affirming State v. Whitaker, 201 N.C. App. 190 (Dec. 8, 2009), the court held that G.S. 14-415.1, the felon in possession statute, was not an impermissible ex post facto law or bill of attainder.

The court held that G.S. 14-415.1 (felon in possession), as applied to the plaintiff, was unconstitutional. In 1979, the plaintiff was convicted of possession of a controlled substance with intent to sell and deliver, a nonviolent crime that did not involve the use of a firearm. He completed his sentence in 1982 and in 1987, his civil rights were fully restored, including his right to possess a firearm. The then-existing felon in possession statute did not bar the plaintiff from possessing a firearm. In 2004, G.S. 14-415.1 was amended to extend the prohibition to all firearms by anyone convicted of a felony and to remove the exceptions for possession within the felon’s own home and place of business. Thereafter, the plaintiff spoke with his local sheriff about whether he could lawfully possess a firearm and divested himself of all firearms, including sporting rifles and shotguns that he used for game hunting on his land. Plaintiff, who had never been charged with another crime, filed a civil action against the State, alleging that G.S. 14-415.1 violated his constitutional rights. The North Carolina Supreme Court held that as applied to him, G.S. 14-415.1, which contains no exceptions, violated the plaintiff’s right to keep and bear arms protected by Article I, Section 30 of the North Carolina Constitution. Specifically, the court held that as applied, G.S. 14-451.1 was not a reasonable regulation. The court held: “Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety.” It concluded: “[I]t is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.” 

In a case where the defendant was convicted of felon in possession of a firearm, the court rejected his argument that the felony possession statute was unconstitutional as applied to him. The court began by rejecting the defendant’s federal constitutional claim, noting that because he is a convicted felon he cannot show that he is a law-abiding, responsible citizen under the test articulated in Hamilton v. Pallozzi, 848 F.3d 614, 623 (4th Cir. 2017). Turning to the defendant’s state constitutional claim, the court applied the Britt analysis. It noted that the defendant’s prior felony conviction was for possessing a sawed-off shotgun in 2005, a weapon of mass destruction. It noted that although his felony conviction occurred 11 years ago, the court has held the statute is constitutional as applied to a defendant where there was a span of 18 years between the prior conviction and the possession charge. With respect to the defendant’s history of law-abiding conduct, the court noted that the defendant has been convicted of driving while impaired, simple assault, assault on a female, driving without an operator’s license, being intoxicated and disruptive, felony possession of a weapon of mass destruction, and fishing without a license. With respect to the defendant’s history of lawful possession, the record established that the defendant had been unlawfully possessing at least one firearm since 2005. He thus could not establish compliance with the statute. Considering the Britt factors, the court concluded that the statute was not unconstitutional as applied to the defendant.

The court rejected the defendant’s contention that the possession of a firearm by a felon statute was unconstitutional as applied to him. Although rejecting the defendant’s challenge, the court agreed that the trial court erred when it found that the defendant’s 1995 Texas drug trafficking conviction “involve[d] a threat of violence.” The trial court also erred by concluding that the remoteness of the 1995 Texas conviction should be assessed from the point that the defendant was released from prison--13 years ago--instead of the date of the conviction-- 18 years ago. The court went on to find that because the defendant’s right to possess a firearm in North Carolina was never restored, he had no history of responsible, lawful firearm possession. And it found that the trial court did not err by concluding that the defendant failed to assiduously and proactively comply with the 2004 amendment to the firearm statute. The court rejected the defendant’s argument that this finding was erroneous because there was no reason to believe that the defendant was on notice of the 2004 amendment, noting that it has never held that a defendant’s ignorance of the statute’s requirement should weigh in the defendant’s favor when reviewing an as applied challenge. Finally, the court held that even though the trial court erred with respect to some of its analysis, the defendant’s as applied challenge failed as a matter of law, concluding:

Defendant had three prior felony convictions, one of which was for armed robbery and the other two occurred within the past two decades; there is no relevant time period in which he could have lawfully possessed a firearm in North Carolina; and, as a convicted felon, he did not take proactive steps to make sure he was complying with the laws of this state, specifically with the 2004 amendment to [the statute]. (footnote omitted).

The trial court erred by dismissing a charge of felon in possession of a firearm on the basis that the statute was unconstitutional as applied to the defendant under a Britt analysis. Here, the defendant had two felony convictions for selling a controlled substance and one for felony attempted assault with a deadly weapon. While the defendant was convicted of the drug offenses in 1989, he was more recently convicted of the attempted assault with a deadly weapon in 2003. Although there was no evidence to suggest that the defendant misused firearms, there also was no evidence that the defendant attempted to comply with the 2004 amendment to the felon in possession statute. The court noted that the defendant completed his sentence for the assault in 2005, after the 2004 amendment to the statute was enacted. Thus, he was on notice of the changes in the legislation, yet took no action to relinquish his hunting rifle on his own accord. 

The trial court erred by granting the defendant’s motion to dismiss an indictment charging felon in possession of a firearm on grounds that the statute was unconstitutional as applied to him. The defendant’s motion was unverified, trial court heard no evidence, and there were no clear stipulations to the facts. To prevail in a motion to dismiss on an as applied challenge to the statute, the defense must present evidence that would allow the trial court to make findings of fact regarding the type of felony convictions and whether they involved violence or threat of violence; the remoteness of the convictions; the felon's history of law abiding conduct since the crime; the felon's history of responsible, lawful firearm possession during a period when possession was not prohibited; and the felon's assiduous and proactive compliance with amendments to the statute.

Following State v. Jeffers, 48 N.C. App. 663, 665-66 (1980), the court held that G.S. 15A-928 (allegation and proof of previous convictions in superior court) does not apply to the crime of felon in possession of a firearm.

Following State v. Little, 191 N.C. App. 655 (2008), and State v. Jackson, 139 N.C. App. 721 (2000), and holding that the trial court did not abuse its discretion by allowing the State to introduce evidence of the defendant’s prior conviction in a felon in possession case where the defendant had offered to stipulate to the prior felony. The prior conviction, first-degree rape, was not substantially similar to the charged offenses so as to create a danger that the jury might generalize the defendant’s earlier bad act into a bad character and raise the odds that he perpetrated the charged offenses of drug possession, possession of a firearm by a felon, and carrying a concealed weapon.

The evidence was sufficient to support multiple counts of possession of a weapon of mass death and destruction and possession of a firearm by a felon. The defendant had argued that the evidence was insufficient to support multiple charges because it showed that a single weapon was used, and did not show that the possession on each subsequent date of offense was a new and separate possession. The court distinguished State v. Wiggins, 210 N.C. App. 128 (Mar. 1, 2011), on grounds that in that case, the offenses were committed in close geographic and temporal proximity. Here, the court determined, the offenses occurred in nine different locations on ten different days over the course of a month. It concluded: “While the evidence tended to show that defendant used the same weapon during each armed robbery, the robberies all occurred on different days and in different locations. Because each possession of the weapon was separate in time and location, . . . the trial court did not err in denying defendant’s motion to dismiss the multiple weapons possession charges.”

The felon in possession statute does not authorize multiple convictions and sentences for possession of a firearm by a convicted felon predicated on evidence that the defendant simultaneously obtained and possessed one or more firearms, which he or she used during the commission of multiple substantive criminal offenses during the course of the same transaction or series of transactions. The court clarified that the extent to which a defendant is guilty of single or multiple offenses hinges upon the extent to which the weapons in question were acquired and possessed at different times. In the case at hand, the weapons came into the defendant’s possession simultaneously and were used over a two-hour period within a relatively limited part of town in connection with the commission of a series of similar offenses. Based on these facts, only one felon in possession conviction could stand.

Confronting a question of first impression, the court held that “in narrow and extraordinary circumstances” the common law defense of justification may be an affirmative defense to a charge of possession of a firearm by a felon under G.S. 14-415.1.  Noting that justification is an affirmative defense which a defendant carries the burden of proving at trial, the court joined the Court of Appeals in adopting an analysis from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000) andheld that a defendant invoking justification as a defense to a violation of G.S. 14-415.1 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 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.

Having established that justification is a defense to a violation of G.S. 14-415.1, the court examined whether the defendant in this case was entitled to a jury instruction on the defense.  Such an instruction is required, the court explained, when each of the four “Deleveaux factors” is supported by evidence taken in the light most favorable to the defendant.  The defendant’s evidence suggested that he was under a qualifying threat as it showed that he and two friends, J and Wardell, arrived to his home to find that a group of fifteen people, some of whom were armed, had assembled at the home intending to fight the defendant.  As tensions elevated towards violence, the defendant took Wardell’s gun as Wardell seemed unfamiliar with it and, in the defendant’s view, would be unable to use it in their defense.  The court concluded that there was evidence of each of the Deleveaux factors under these facts and that the trial court committed prejudicial error by denying the defendant’s request to instruct the jury on the defense.

A dissenting justice, Justice Morgan, “welcom[ed] the establishment of the justification defense” for this criminal offense but did not believe that the evidence in the instant case was sufficient to require the trial judge to give the instruction.

In this Bladen County case, the defendant was convicted of second-degree murder and possession of a firearm by a felon after shooting a man in an altercation between several people at an apartment complex. There were conflicting accounts about which of the people involved had guns, although the defendant testified that he fired his weapon when he believed that one of the men with which he was fighting had a gun, and that he was about to be killed. On appeal, the defendant argued that the trial court erred in declining his request to instruct the jury on the affirmative defense of justification to possess a firearm as a felon—a defense recently recognized by the Supreme Court in State v. Mercer, 373 N.C. 459 (2020). To be entitled to a jury instruction on justification, a defendant 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. Additionally, to be entitled to the justification defense, the defendant must possess the firearm only while under threat. Id. Here, taking the evidence in the light most favorable to the defendant, the Court of Appeals concluded that the defendant presented evidence of all the required elements. As to the imminent threat, the victim had knocked the defendant onto his buttocks and heard others saying someone had a gun and “pop him.” As to the second element, the defendant was not the aggressor and attempted to explain to the victim that he was not there to fight. As to the availability of an alternative, evidence showed that the victim attacked the defendant, and a reasonable jury could have concluded that it was too late to call 911 and that running away would have put the defendant at risk of being shot. And as to the causal relationship between the avoidance of harm and the criminal conduct, testimony indicated that the defendant took possession of the firearm only after he heard others saying the victim had a gun, and that he abandoned it when he was able to run away. Finally, the court concluded that the defendant was prejudiced by the trial judge’s failure to give the instruction, as a reasonable jury may have acquitted the defendant on the firearm charge if it had been permitted to consider whether he was justified in possessing it. Accordingly, the majority reversed the conviction and remanded the case for a new trial.

A dissenting judge would have concluded that the required elements for the justification instruction were not met because the defendant intentionally placed himself in a dangerous situation, and because he had many reasonable alternatives to violating the law.

(1) The State and the defendant’s version of events were inconsistent. For purposes of determining the sufficiency of the evidence supporting a jury instruction on justification, the Court of Appeals recounted the defendant’s version of events. The defendant was in David Harrison’s trailer drinking bourbon when Harrison suddenly stood up while only a few feet from the defendant, pulled a pistol out of his pocket, pointed it toward the wall near the defendant, and fired a shot at the wall. Before pulling out the gun, Harrison had not threatened the defendant in any way, nor did he appear angry or upset. As soon as Harrison fired the shot at the wall, the defendant grabbed the pistol from Harrison and left the trailer. The defendant went to look for Karen Tucker, who was dating his father, and who he believed would be sober and safely able to take the gun from him. When the defendant did not find Karen in her trailer, he waited with the gun in his possession, in the presence of Karen’s daughters, until Karen arrived. The defendant then gave Karen the gun.

Law enforcement officers who later arrived on the scene did not find bullet holes inside of Harrison’s trailer but did find a shell casing sitting on a coffee table. The defendant was charged with a number of offenses, including possession of a firearm by a felon. At trial, the defendant requested a jury instruction on the defense of justification. The trial court denied the request, and the jury found the defendant guilty.

On appeal, the defendant argued that the trial court erred by denying his request for a jury instruction on the defense of justification. Using the test outlined in State v. Mercer, 373 N.C. 459, 463 (2020), the Court of Appeals determined that the evidence at trial was insufficient to establish the first factor of the test, which requires “that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury.” The Court concluded that even assuming Harrison’s drunken act of firing his pistol into the wall or ceiling of his house represented an “impending threat of death or serious bodily injury” to the defendant, that threat was gone once the defendant left Harrison’s trailer with the gun, and the defendant did not take advantage of other opportunities, described in the opinion, to dispose of the gun.

(2) The State conceded that the trial court erred in imposing attorneys’ fees without providing the defendant with notice and an opportunity to be heard. At the time of sentencing, the defendant’s court-appointed counsel had not yet calculated the number of hours worked on the case. The trial court explained to the defendant that those would be calculated later and submitted to the court. The court advised the defendant that it would sign what it felt to be a reasonable fee. The court later entered a civil judgment for $2,220 without first informing the defendant of the amount. The Court of Appeals held that the defendant was not provided sufficient opportunity to be heard before entry of that civil judgment. It thus vacated the civil judgment and remanded the matter to the trial court for further proceedings on that issue.

The defendant was indicted for possession of a firearm—specifically, “a New England Firearms Pardner Model 12 Gauge Shotgun”—by a person previously convicted of a felon. The defendant initially told officers, who were investigating a report of a domestic dispute at the defendant’s home, that he had no knowledge about a shotgun, but he later admitted to one of the deputies that he had thrown the shotgun into the woods and told the deputy where he had thrown it. At trial, the defendant testified that he had been involved in an altercation with his stepson but did not remember taking the shotgun from him. He further testified that he did not take possession of “that gun.” The trial judge gave the pattern instruction on possession of a firearm by a person previously convicted of a felony. There were no objections to the instruction, and the jury found the defendant guilty of the possession charge and of having attained habitual felon status. On appeal, the defendant argued that the trial judge committed plain error by failing to instruct the jury on the affirmative defense of justification. The Court of Appeals held that the defendant was not entitled to the instruction.

The Court first recognized that in State v. Mercer, ___ N.C. App. ___, 818 S.E.2d 375 (2018), aff'd ___ N.C. ___, ___ S.E.2d ___ (2020), it had recognized the defense of justification to possession of a firearm by a person previously convicted of a felony. The Court noted that the North Carolina Supreme Court has granted review in Mercer but stated that it would follow Mercer as it applied when the defendant’s case was before the trial court. Assuming a justification defense as explained in Mercer applies in North Carolina, the Court stated first that it isn’t clear that a justification defense is a “substantial and essential feature” of the possession charge, requiring an instruction by the trial judge, because the possession statute does not describe justification or self-defense as an element of the offense. The Court then ruled that the defendant’s own testimony, in which he denied possessing the gun alleged in the indictment, rendered a justification defense unavailable. The Court stated that a defendant is not entitled to a justification instruction where he testifies that he did not commit the criminal act at all. The Court also rejected the defendant’s claim of ineffective assistance of counsel based on counsel’s failure to request a justification instruction, holding that even if counsel had requested such an instruction the trial court should not have granted it.

Defendant was indicted for first-degree murder, possession of a firearm by a felon, two counts of assault with a deadly weapon with intent to kill, robbery with a deadly weapon, two counts of attempted robbery with a deadly weapon, and attaining habitual felon status. At trial, he was convicted solely of possession of firearm by a felon. The charges arose from a murder that occurred during a drug transaction. Three men, Michael Harbin, Carlos James, and Derrick Copeland approached a house in Garland, NC to purchase marijuana. There were three men at the house, Jafa McKoy, a man the three would-be drug purchasers did not know, identified only as “P,” and a third man they likewise did not know. “P” approached the car in which James was sitting holding a revolver. McKoy, accompanied by the other unknown man, shot at Harbin and Copeland who had gotten out of the car. They ran. James’s body was subsequently discovered in the driveway. He had been shot in the back of the head and was dead.

Four days later, Copeland identified defendant’s photograph as a suspect for “P” with 85 to 90 percent confidence.  An SBI agent interviewed the defendant two weeks after the murder. He admitted that the men may have seen him at the house, but denied killing anyone or being present when someone was killed. Records from the defendant’s cell phone showed that it was being used in the area of the murder in the hours before James was killed, but defendant’s phone was not in use and no location could be identified during the time of the encounter with Hardin, Copeland, and James. Cell phone records showed defendant as being in the nearby area, but headed toward Clinton, shortly after Hardin and Copeland ran from the house.

At the close of the State’s evidence, the trial court found the State had presented insufficient evidence that defendant possessed the specific intent to kill under a theory of acting in concert and dismissed the counts of assault with a deadly weapon with intent to kill. The trial court denied Defendant’s motion to dismiss the remaining charges. Defendant did not testify or present any evidence at trial. The jury found Defendant guilty of possession of a firearm by a felon and found the defendant not guilty of the remaining charges. Defendant stipulated and pled guilty to attaining habitual felon status. The trial court sentenced the Defendant as a habitual felon, and the defendant appealed. On appeal, the defendant argued that the trial court erred by denying his motion to dismiss the charge of possession of a firearm by a felon.

Even assuming that the State offered no direct evidence that the defendant possessed a firearm on the occasion in question, the court held that the State submitted sufficient circumstantial evidence to support a reasonable inference of the defendant’s guilt. The defendant admitted that he was present at house the morning of the incident and that Copeland, Harbin, and James may have seen him there. Defendant’s cell phone was located near the scene close to the time of the incident. Copeland identified the defendant from a photo array as the armed suspect present at the scene with “85 to 90 percent” confidence. Copeland testified “P” had a “beard, brown skin, [and a] tattoo on the upper cheek,” and estimated he was about 6’2” tall and weighed about 240 pounds. Harbin testified “P” was wearing a hat, had a beard, and “was like a burley dude, like a kind of bigger dude.” The State also presented testimony from Jane Peterson, defendant’s girlfriend at the time of the incident. She described the defendant at the time as having a close-cut beard and a tattoo on his arm and on his face. The court explained that “[a]lthough this evidence may not rule out every hypothesis of Defendant’s innocence, that is not the State’s burden on Defendant’s motion to dismiss.”

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