State v. Swindell, ___ N.C. App. ___, 2021-NCCOA-408 (Aug. 3, 2021)

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.