IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-113
No. 294A21-1
Filed 4 November 2022
STATE OF NORTH CAROLINA
v. HAROLD EUGENE SWINDELL
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. Heard in the Supreme Court on 29 August 2022.
Joshua H. Stein, Attorney General, by Marc X. Sneed, Special Deputy Attorney General, for the State-appellant.
Leslie Rawls for defendant-appellee.
BERGER, Justice.
¶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 STATE V. SWINDELL
Opinion of the Court
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.
I. Factual and Procedural Background
¶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: “You don’t belong out here . . . [t]his is NFL [gang] territory. . . . You really
ain’t got no business out here anyway.” 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 STATE V. SWINDELL
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 STATE V. SWINDELL
“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 STATE V. SWINDELL
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.
II. Analysis
¶ 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 STATE V. SWINDELL
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. STATE V. SWINDELL
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) (“When an appeal is taken pursuant
to N.C.[G.S.] § 7A-30(2), the only issues properly before the Court are those on which
the dissenting judge in the Court of Appeals based his dissent.”); 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 or recklessly place himself in a situation where he would be
forced to engage in criminal conduct . . . .” Mercer, 373 N.C. at 464, 838 S.E.2d at
363. Defendant has failed to meet his burden.
¶ 18 Defendant first visited Oakdale Apartments on May 17 because his brother
“got into it with some guys.” After breaking up a “fight” in which his brother was
1 Here, there is no dispute that defendant violated N.C.G.S. § 14-415.1. The parties are in agreement that defendant was a convicted felon at the time he possessed and used a firearm to fatally shoot Lonnie Smith. STATE V. SWINDELL
being beaten by three men, defendant was warned by Anthony Smith that he did not
“belong out here” and that the area was “NFL territory.” Having been warned that
he was not welcome in this gang’s territory and having very recently been involved
in a physically violent confrontation with members of that gang, defendant acted
reasonably in immediately leaving the neighborhood and returning home.2
¶ 19 However, defendant’s decision to return to Oakdale Apartments shortly after
the initial altercation, and his decision to remain there for twenty-five minutes, are
of a different character. Even if we assume that defendant’s temporary return to such
a volatile environment was reasonable, his decision to remain was not. Given the
prior physical confrontation, threats, and his brother’s indication that he was willing
to fight again, defendant reasonably should have known that his continued presence
in the area could be the catalyst for another confrontation. Defendant’s justification
for returning, namely, to prevent more fights from happening, only proves that he
knew and appreciated the fact that another fight was possible. Based on defendant’s
own testimony, taken in the light most favorable to him, we conclude that defendant
2 We do not suggest that members of the alleged gang had the right to impose any limitation on defendant’s presence in an area in which he had a lawful right to be. However, the warning is properly considered as a factor under the totality of the circumstances when determining whether defendant “negligently or recklessly place[d] himself in a situation where he would be forced to engage in criminal conduct.” Mercer, 373 N.C. at 464, 838 S.E.2d at 363. STATE V. SWINDELL
at least negligently “place[d] himself in a situation where he would be forced to
engage in criminal conduct . . . .” Mercer, 373 N.C. at 464, 838 S.E.2d at 363.
¶ 20 Because a defendant bears the burden to establish each element of the
justification defense, and because we conclude that defendant failed to meet his
burden as to the second element, we need not analyze the third element. Thus, the
evidence at trial, taken in the light most favorable to defendant, failed to support
each element of the requested jury instruction on justification as a defense to the
charge of possession of a firearm by a felon.
III. Conclusion
¶ 21 For the foregoing reasons, we conclude that defendant was not entitled to a
jury instruction on justification as a defense to the charge of possession of a firearm
by a felon, and we reverse the decision of the Court of Appeals.
REVERSED. Justice MORGAN dissenting.
¶ 22 I respectfully dissent from the opinion of this Court’s majority, choosing
instead to align with the Court of Appeals majority in its determination that the trial
court committed prejudicial error in declining to give defendant’s requested
instruction to the jury on the affirmative defense of justification upon the jury’s
consideration of defendant’s alleged commission of the offense of possession of a
firearm by a felon. From my perspective, the lower appellate court correctly concluded
that defendant satisfied the four factors which we established in State v. Mercer, 373
N.C. 459 (2020), and as adopted from the federal appeals court case of United States
v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), based upon the evidence presented in
support of the justification defense which must be viewed in the light most favorable
to defendant. See State v. Swindell, 278 N.C. App. 758, 2021-NCCOA-408, ¶ 22.
Although my distinguished colleagues in the majority here have cited the pertinent
law and have recognized the appropriate standards, nonetheless they have failed to
apply the controlling law and the governing standards to reach the correct outcome
in this case. Because I consider defendant to have satisfactorily fulfilled the
requirements of the Mercer factors through the presentation of evidence which was
required to be taken in the light most favorable to him, I would conclude that
defendant was entitled to have the trial court instruct the jury on the existence of
justification as an affirmative defense to the alleged offense of possession of a firearm STATE V. SWINDELL
Morgan, J., dissenting
by a felon. Accordingly, I am of the opinion that the decision of the Court of Appeals
in this case should be affirmed, therefore reversing the judgment of the trial court for
its commission of prejudicial error and remanding the matter for a new trial.
¶ 23 This Court’s decision in Mercer offers significant and persuasive guidance
through the salient principles which it provides. “When determining whether the
evidence is sufficient to entitle a defendant to jury instructions on a defense or
mitigating factor, courts must consider the evidence in the light most favorable to
defendant.” Mercer, 373 N.C. at 464 (quoting State v. Mash, 323 N.C. 339, 348 (1988)).
“[T]his Court reviews de novo whether each element of the defense is supported by
substantial evidence when taken in the light most favorable to the defendant.” State
v. Meader, 377 N.C. 157, 2021-NCSC-37 ¶ 15 (citing Mash, 323 N.C. at 348).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171 (1990).
¶ 24 Further indication of the significance and persuasiveness of Mercer here is this
Court’s inaugural recognition, by way of our decision in Mercer “that in narrow and
extraordinary circumstances, justification may be available as a defense to a charge
under N.C.G.S. § 14-415.1,” Mercer, 373 N.C. at 463, the statute which defendant in
the present case allegedly violated. “[L]ike other affirmative defenses, a defendant
has the burden to prove his or her justification defense to the satisfaction of the jury.”
Id. This Court announced in Mercer STATE V. SWINDELL
that to establish justification as a defense to a charge under N.C.G.S. § 14-415.1, the defendant 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.
Id. at 464 (quoting Deleveaux, 205 F.3d at 1297).
¶ 25 While the majority decided that it was only necessary to conclude, in its
estimation, that defendant here did not meet his burden of proof to establish the
second Mercer factor, and therefore, the majority determined that it was unnecessary
to address the third Mercer factor which the dissenting opinion in the Court of
Appeals also opined was inadequately shown by defendant in addition to the second
Mercer factor, I take the position that the evidence adduced at trial was sufficiently
ample to require the trial court to give defendant’s requested instruction on the
affirmative defense of justification to the jury because defendant satisfied his burden
of proof to warrant the jury instruction.
¶ 26 Defendant testified at trial that he received a telephone call from his brother
in which defendant’s brother expressed concern and anticipation that the brother
“was expecting some guys to do something—something to him” at the apartment
complex where defendant’s brother and his wife resided. As a result of this telephone STATE V. SWINDELL
conversation, defendant went to his brother's apartment complex and, when
defendant arrived, saw that his brother “was on the ground” and that three or four
men “were already beating on him.” Defendant helped to break up the fight, which
defendant subsequently learned concerned debt for illegal drugs. Defendant and his
brother were able to depart the area and to proceed safely to defendant’s residence
without further incident. Subsequently, the wife of defendant’s brother contacted her
husband by telephone to ask him to return home to her and their children.
Consequently, defendant transported his brother, along with a friend, by vehicle back
to the apartment complex where the fight had earlier occurred, accompanying his
brother “just to make sure that no fights happened.” Upon arrival, defendant did not
see any of the men who had been involved in the altercation with defendant’s brother,
and defendant testified that the situation was “peaceful.” While defendant engaged
in conversation with several residents of the apartment complex, defendant then saw
Lonnie Smith approaching him. Smith was accompanied by James Ratliff, Bobby Lee
Ratliff, Cequel Stephens, and Anthony Smith—the four men who were involved in
the prior fisticuffs with defendant’s brother. Defendant had known Lonnie Smith for
a number of years, was aware that Lonnie Smith was the brother of Anthony Smith,
and was familiar with Lonnie Smith’s reputation as a “pretty tough guy” and as
“being pretty brutal.” Defendant testified that Lonnie Smith made a comment to
defendant about defendant’s physical interaction with Lonnie Smith’s brother STATE V. SWINDELL
Anthony Smith during the fight earlier in the day, to which defendant responded that
defendant was just “trying to diffuse the situation” and “was just trying to break up
the—break up a fight.” Defendant said to Lonnie Smith during their exchange, “I
didn’t jump on your brother.”
¶ 27 Each testimonial account rendered by witnesses at trial, including the version
given by defendant, indicated that Lonnie Smith initiated physical contact with
defendant by striking defendant upon the side of defendant’s face or head. A brief
fight ensued, with Lonnie Smith punching defendant several times in the face and
head region of defendant’s body. Defendant testified that defendant “slipped” and “fell
backwards,” landing on the ground. While seated on the ground, defendant saw
Anthony Smith and Cequel Stephens approach defendant from defendant’s right side.
Next, according to defendant’s testimony at trial, he heard his brother call out a
warning to defendant about Anthony Smith, exclaiming, “Watch out. He got a gun.”
Defendant noticed a firearm on the ground in front of him, about one foot or two feet
away. As he saw the gun, defendant hurried to grab it before Lonnie Smith could get
it, particularly after defendant heard Anthony Smith yell the phrase “pop him,” which
defendant interpreted to mean that Lonnie Smith was being encouraged by his
brother Anthony Smith to shoot defendant. Defendant testified that he was in
“complete fear” as he observed Lonnie Smith also reaching for the gun which lay on
the ground, because defendant was afraid that Lonnie Smith would shoot defendant STATE V. SWINDELL
with the gun if Lonnie Smith obtained it. Upon successfully gaining possession of the
gun before Lonnie Smith did, defendant testified that defendant wanted to acquire
the weapon despite his inability to lawfully possess a firearm as a convicted felon
because defendant could not think of “any other reasonable way to get out of th[e]
situation.” Defendant testified that he then shot Lonnie Smith because defendant
believed that defendant was about to be killed. Defendant then returned to his
vehicle, drove away from the apartment complex, and contacted authorities to report
the incident.
¶ 28 Recounting the evidence presented by defendant in support of his claimed
affirmative defense of justification and viewing the evidence in the light most
favorable to defendant, I regard the evidence to be sufficient to support defendant’s
requested jury instruction on justification as an affirmative defense to the alleged
crime of possession of a firearm by a felon. The evidence is amply substantial, in my
view, to qualify as relevant evidence that a reasonable mind might accept as adequate
to support a conclusion. Franklin, 327 N.C. at 171. Likewise, I evaluate this evidence
at issue to satisfactorily fulfill the four factors which this Court delineated in Mercer
in order to warrant a defendant’s entitlement to the jury instruction on justification.
¶ 29 In light of the foregoing analysis, I would affirm the well-reasoned decision of
the Court of Appeals in this case, thereby reversing the trial court’s judgments STATE V. SWINDELL
entered against defendant and remanding the case so that defendant could receive a
new trial.
Justices HUDSON and EARLS join in this dissenting opinion.