State v. Swindell, 2022-NCSC-113, ___ N.C. ___ (Nov. 4, 2022)

In this Bladen County case, the Supreme Court reversed the Court of Appeals majority decision overturning defendant’s conviction and ordering a new trial. The Supreme Court found no error with the denial of defendant’s request for a jury instruction on justification as a defense to possession of a firearm by a felon. 

Defendant went to trial for first degree murder and possession of a firearm by a felon in November of 2018. Defense counsel requested an instruction on the affirmative defense of justification to the firearm possession charge, and the trial court denied this request. Explaining the basis for the defense, the Supreme Court noted that justification has four elements outlined by State v. Mercer, 373 N.C. 459 (2020), and only two, the second and third elements, were in question in the immediate case. Slip Op. at 6-7.  The court outlined the second element under Mercer, that defendant “did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct,” and concluded that defendant failed to meet this burden by returning to the apartments where an altercation had occurred. Id. at 8. Because defendant placed himself in a situation where criminal conduct could occur, he could not meet this burden, and the court did not conduct any further analysis on the third Mercer factor.

Justice Morgan, joined by Justices Hudson and Earls, dissented, and would have affirmed the Court of Appeals majority decision. Id. at 10.