State v. Swindell

• Court: Court of Appeals of North Carolina
• Decided: August 3, 2021
• Docket: 20-263
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-408

No. COA20-263

Filed 3 August 2021

Bladen County, Nos. 17 CRS 50608; 17 CRS 50609

STATE OF NORTH CAROLINA,

v.

HAROLD EUGENE SWINDELL, Defendant.

Appeal by Defendant from judgments entered 27 November 2018 by Judge

Jeffery K. Carpenter in Bladen County Superior Court. Heard in the Court of Appeals

10 March 2021.

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

Leslie Rawls, 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 STATE V. SWINDELL

Opinion of the Court

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 Shawbrena 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 STATE V. SWINDELL

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 STATE V. SWINDELL

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 STATE V. SWINDELL

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 STATE V. SWINDELL

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.

1 The justification defense originates in our federal courts. See U.S. v. Deleveaux, 205

F.3d 1292 (11th Cir. 2000). Our Supreme Court’s adoption of the justification defense for possession of a firearm by a felon comes after this Court applied the defense in several instances, assuming, but not deciding, that the justification defense applied in North Carolina. STATE V. SWINDELL

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 imminent threat while possessing the gun.” Id. STATE V. SWINDELL

at 797, 606 S.E.2d at 389; see also State v. McFadden, No. COA15-957, 247 N.C. App.

400, 786 S.E.2d 433, 2016 WL 1745118 (2016) (N.C. Ct. App. May 3, 2016)

(unpublished); State v. Litaker, No. COA19-189, 269 N.C. App. 385, 836 S.E.2d 782,

2020 WL 64798 (N.C. Ct. App. Jan. 7, 2020) (unpublished).

¶ 15 In addition to possessing the firearm in the presence of an imminent threat, a

defendant must not have a reasonable alternative to violating the law. In Edwards,

the defendant was found “standing with other[s] in a vacant lot . . . . When [the]

defendant saw the officers, he ‘hurriedly started walking away’ and ‘reached into his

waistband and pulled out a [handgun] . . . .” 239 N.C. App. at 391, 768 S.E.2d at 620.

Although the defendant contended he was being threatened and needed the gun for

protection, he failed to present evidence of “the circumstances under which defendant

was ‘in a situation where he would be forced to engage in criminal conduct’; [and]

whether defendant had a reasonable alternative to violating the law . . . .” Id. at 395,

768 S.E.2d at 622. Because the defendant obtained the firearm nearly an hour before

law enforcement discovered he was in possession of the weapon, this Court held he

was not entitled to the justification defense. Id. at 394-95, 768 S.E.2d at 621-22.

¶ 16 Likewise, several of our unpublished justification decisions have recognized

that, where the defendant obtains a firearm in anticipation of an imminent threat,

he has a reasonable alternative to violating the law. See e.g. Ponder, No. COA11-1365,

220 N.C. App. 525, 725 S.E.2d 674, 2012 WL 1689526, at *2 (defendant not entitled STATE V. SWINDELL

to justification where he voluntarily obtained a firearm and waited to confront the

victim, instead of “telephon[ing] the police”); State v. Lyles, No. COA02-1139, 157 N.C.

App. 142, 578 S.E.2d 327, 2003 WL 1701564, at *3 (N.C. Ct. App. April 1, 2003)

(unpublished) (defendant had a reasonable alternative to violating the law where he

“had only to refuse to take the gun that was already in [another’s] safekeeping.”).

¶ 17 However, the justification defense shall apply where a defendant can present

evidence of all four elements. See State v. Mercer, 260 N.C. App. 649, 818 S.E.2d 375

(2018), aff’d, 373 N.C. 459, 838 S.E.2d 359 (2020). In Mercer, the defendant’s cousin

had been involved in several physical altercations in the defendant’s neighborhood.

Id. at 650-51, 818 S.E.2d at 376-77. The defendant’s cousin was engaged in an

altercation in the defendant’s yard while the defendant was not home. Upon arriving,

the defendant became involved in the altercation. Id. at 651, 818 S.E.2d at 377. The

defendant heard guns cocking, and saw that his cousin, as well as the persons whom

he had observed engaging in the altercation with his cousin, was armed. Id. at 653,

818 S.E.2d at 378. Defendant took possession of the firearm when he observed his

cousin struggling with it. Id. At trial, the State presented evidence suggesting the

defendant brought a firearm to the fight. Id. at 651, 818 S.E.2d at 376-77. The

defendant was later convicted of possession of a firearm by a felon. Id. at 650, 818

S.E.2d at 376. On appeal, the State argued the defendant was not entitled to the

justification defense, as his actions were not reasonable. However, this Court held STATE V. SWINDELL

reasonableness was a “question for the jury, after appropriate instruction.” Id. at 658,

818 S.E.2d at 381 (citation omitted). This Court further held that the defendant was

entitled to an instruction on justification, because the defendant presented evidence

“that he only grabbed the gun . . . when he heard guns being cocked, and threw it

back to [his cousin] when he was able to run away” and that he was not the aggressor.

Id. at 657, 818 S.E.2d at 380.

¶ 18 In the present appeal, the evidence tends to show Defendant fell onto his

buttocks after Lonnie hit him. Defendant testified he was in “complete fear” and

thought he was “about to be killed and using the gun was the only thing that could

save his life.” Prior to the shooting, Defendant heard his brother call out, “Watch out.

He got [sic] a gun.” Defendant heard Lonnie’s brother say, “Pop him. Pop him,” which

he understood to mean “shoot him.” Defendant testified he only grabbed the gun

because he fell and believed Lonnie would shoot him. Defendant’s testimony that he

fell to his buttocks is corroborated by the autopsy report, which provides that the

likely-fatal bullet wound followed an upward trajectory. Immediately after the

shooting, Defendant “threw the gun” on the ground and ran to his vehicle. Taking

the evidence in the light most favorable to Defendant, we hold Defendant only

possessed the firearm during the time he was under “an unlawful and present,

imminent, and impending threat.” See Mercer, 373 N.C. at 464, 838 S.E.2d at 363-64.

¶ 19 Addressing the second element, the evidence demonstrated that Defendant STATE V. SWINDELL

broke up a fight earlier in the day. After the fight, Defendant returned to his

residence for approximately fifteen minutes. Defendant, Darryl, and Justice returned

to Darryl’s complex at the request of Darryl’s wife. After returning to the complex,

Defendant remained outside and conversed with several residents, many of whom

asked about the earlier fight. Approximately half an hour after Defendant returned

to the complex, the second altercation occurred. Defendant was not the aggressor

and attempted to explain to Lonnie that he was not there to fight with anyone. Taking

“the evidence in the light most favorable to [D]efendant, we conclude that a jury could

find [] he did not negligently or recklessly place himself in a situation where he would

be forced to arm himself.” See id. at 465, 838 S.E.2d at 364.

¶ 20 The State argues that, even if the first two elements are met, Defendant is not

entitled to the justification instruction because he had a reasonable alternative to

violating the law. The State contends Defendant could have retreated to his vehicle

after the altercation began and left the scene without obtaining the firearm.

Defendant testified that he “imagine[d]” he could have gotten into his vehicle and left

prior to the shooting. However, evidence also tended to show Defendant was

physically attacked by Lonnie—who had a reputation for violence—and that

Defendant fell after Lonnie initiated the second fight. Defendant saw a gun in front

of him and heard Lonnie’s associates call for Lonnie to shoot him. Taking the evidence

in the light most favorable to Defendant, “a reasonable jury could conclude that it STATE V. SWINDELL

was too late to call 911 and that running away would have put him at greater risk of

being shot. A jury could have concluded that defendant had no reasonable legal

alternative to violating the law.” Id.

¶ 21 Finally, Defendant meets the fourth element as there was evidence which

tended to show a direct causal relationship between the avoidance of imminent harm

and Defendant’s possession of a firearm. Defendant testified he only took possession

of the firearm after he heard bystanders warning that the victim had a gun and

because he had fallen onto his buttocks. Defendant feared that if he did not use the

firearm, he would be shot. Further, Defendant abandoned the firearm when he was

able to run away. Although the State presented evidence to the contrary, taking “the

evidence in the light most favorable to [D]efendant, a jury could find that his gun

possession was directly caused by his attempt to avoid a threatened harm.” Id. at 466,

838 S.E.2d at 364.

¶ 22 Taking the evidence in the light most favorable to the defense, Defendant

presented evidence in support of all factors necessary for the justification defense. As

our Supreme Court emphasized in Mercer, we do not determine whether Defendant

“was actually justified in his possession of the firearm, as the State did present

relevant conflicting evidence on several points. We hold only that he was entitled to

have the justification defense presented to the jury.” Id.

¶ 23 Having determined Defendant was entitled to a jury instruction on STATE V. SWINDELL

justification, we next determine whether Defendant was prejudiced by the trial

court’s failure to give such an instruction. See id. “[A] defendant is prejudiced by

errors relating to rights arising other than under the Constitution of the United

States when there is a reasonable possibility that, had the error in question not been

committed, a different result would have been reached at the trial out of which the

appeal arises.” N.C. Gen. Stat. §15A-1443(a) (2020). Here, the jury was not instructed

on the justification defense to possession of a firearm by a felon, and it subsequently

convicted Defendant on that charge. We hold that, under the facts of this case, a

reasonable jury may have acquitted Defendant had it been permitted to consider

whether Defendant was justified in his possession of the firearm.

III. Conclusion

¶ 24 Viewing the evidence in the light most favorable to Defendant, we conclude

Defendant has made the requisite showing of each element of the justification

defense. The trial court committed prejudicial error by denying Defendant’s request

for a jury instruction on justification as a defense to the charge of possession of a

firearm by a felon. Accordingly, we reverse and remand for a new trial.

REVERSED AND REMANDED.

Judge ZACHARY concurs.

Judge JACKSON dissents by separate opinion. STATE V. SWINDELL

No. COA20-263 – State v. Swindell

JACKSON, Judge, dissenting.

¶ 25 The issue in this case is whether the trial court erred by denying Defendant’s

request for a jury instruction on justification as an affirmative defense to his charge

of possession of a firearm by a felon. Because I believe the evidence shows that

Defendant intentionally placed himself in a dangerous situation, and because he had

many reasonable alternatives to violating the law, I would hold that Defendant could

not have satisfied the elements of the justification defense. Accordingly, I would hold

that the trial court did not err in denying Defendant’s requested jury instruction. I

respectfully dissent.

¶ 26 This case arises out of a series of altercations that occurred between

Defendant, his brother, and his brother’s neighbors in May 2017. In the afternoon of

17 May 2017, Defendant was at home when he received a phone call from his brother

Darryl Swindell, asking that Defendant come to Darryl’s apartment complex

(Oakdale Homes) to pick him up. Darryl asked for a ride because he owed his

neighbors money and feared the neighbors might try to start a fight with him.

Defendant left home, accompanied by his friend Broadus Justice, and the two drove STATE V. SWINDELL

to Oakdale Homes to pick up Darryl.

¶ 27 When they arrived at Oakdale, Defendant saw four people (James Ratliff,

Anthony Smith, Bobby Lee Ratliff, and Cequel Stephens) beating up his brother. As

soon as Defendant got out of the car and began approaching the group, Cequel

Stephens approached him and tried to punch him, but Defendant pushed him away.

Defendant immediately set to work trying to break up the fight, which was over in

approximately two to three minutes. As they began to leave, Anthony Smith shouted

at Defendant and his brother “You don’t belong out here anyway . . . This is NFL

territory.” Defendant knew that “NFL” was a local gang which was led by Anthony’s

brother, Lonnie Smith. Defendant ignored Anthony’s statement and returned home

with Broadus and his brother.

¶ 28 The group remained at Defendant’s home for only ten to 15 minutes before

receiving a phone call from Darryl’s wife, who lived at Oakdale. Darryl’s wife

informed him that “the individuals [who fought with Darryl] were back,” and Darryl

relayed this information to Defendant. Darryl then “asked [Defendant] to take him

back to his home” because he “was concerned.” So Defendant drove his brother and

Broadus back to Oakdale. As Defendant parked and got out of the car, he saw that a

group of about ten neighbors were gathered in the Oakdale parking lot having a

cookout. Defendant joined the group and remained there for some time, chatting with

the neighbors. STATE V. SWINDELL

¶ 29 After spending approximately 30 minutes socializing with neighbors in the

parking lot, Defendant noticed a group of men approach from behind the apartment

building. This group included several of the individuals who Defendant had seen

fighting earlier that day (Cequel Stephens, Bobby Lee Ratliff, and Anthony Smith) as

well as two other individuals who Defendant knew, but who had not been present at

the earlier fight (Lonnie Smith and Robert Ratliff). The approaching group was led

by Lonnie Smith, who Defendant knew to be “the leader of a local gang called ‘NFL,’”

and who Defendant characterized as “a pretty tough guy . . . pretty brutal” with a

“bad reputation . . . for violence.”

¶ 30 After this point, accounts differed on how the altercation between Lonnie and

Defendant progressed. According to the voluntary statement which Defendant

provided to Officer Rodney Warwick (which occurred later that same evening), Lonnie

walked up to Defendant and asked if Defendant had been looking for him, to which

Defendant responded “It weren’t like that.” Lonnie then “began to hit him” in the

head and upper body, and the two “got into a tussle.” “[A]s they tussled, other

individuals became involved in the altercation; [and] during the altercation, a gun

just suddenly appeared . . . everything happened quickly, and the gun just went off.”

Defendant told Officer Warwick that he had not brought the gun, and that he didn’t

know who the gun belonged to.

¶ 31 Defendant told Officer Warwick two slightly differing accounts of how the gun STATE V. SWINDELL

ended up going off. Defendant first stated that after the gun appeared, there was a

struggle for possession of the weapon, and that “during the tussle for the weapon,

that he never had it, but that he definitely touched it,” and that he eventually “heard

it go off.” In another account, Defendant stated that he and Lonnie “struggled over

the gun, that [Defendant] got the gun, and the gun went off.”

¶ 32 Defendant’s trial testimony painted a different picture of the altercation.

According to Defendant’s trial testimony, as Lonnie and his group approached him in

the Oakdale parking lot, Lonnie asked if Defendant had been fighting with Lonnie’s

brother Anthony. In an attempt to diffuse the situation, Defendant replied “[n]o, I

didn’t jump on your brother. I was just trying to . . . break up a fight.” But Lonnie

was not deterred, and began punching Defendant in the head and face. At some point,

Lonnie hit Defendant so hard that he stumbled backwards, slipped on some trash on

the ground, and fell backwards onto the ground.

¶ 33 Defendant stated that as he was sitting on the ground, trying to recover,

Lonnie’s brother (Anthony) and Cequel Stephens approached from the side, and

Anthony screamed “back the F up” to “the other guys that were with [Defendant].”

Defendant’s friends obeyed, and backed up away from the fight—which caused

Defendant to feel afraid because his friends are large and formidable, whereas

Anthony (the one telling them to back up) was “a little guy.” Defendant surmised

that Anthony must be holding a gun, because otherwise his friends would not have STATE V. SWINDELL

“backed up [that] easy.”

¶ 34 Defendant testified that Darryl then called out to him, saying “Watch out. He

got a gun.” Somewhere in the commotion, Defendant noticed “a gun on the ground”

in front of him, but he did not see where it came from. As Anthony and Cequel

continued to approach him, Defendant heard one of them say “Pop him,” which he

understood to mean shoot him. According to Defendant, he then saw Lonnie reach

for the gun on the ground, but before Lonnie could reach it Defendant snatched up

the gun.

¶ 35 Defendant testified that at that point, he was feeling “complete fear” for his

life, because he thought that Lonnie was reaching for the gun to shoot him, and he

suspected that Anthony had a gun as well. Defendant stated that he believed that

picking up the gun was “the only thing that could save [his] life at that time.”

Defendant testified that he then “just picked [the gun] up, basically, and fired” at

Lonnie. As soon as he fired the gun, Defendant then dropped it, got into his car, and

drove away as quickly as he could.

¶ 36 A witness to the altercation, Shawnbrena Thurman, offered a different account

of that night’s events during her trial testimony. She stated that as she watched

Lonnie approach Defendant, she knew that Lonnie came with the intention of

fighting—in fact, she even attempted to stop Lonnie as he approached Defendant, but

Lonnie was determined to fight. She testified that after Lonnie reached Defendant, STATE V. SWINDELL

the two began speaking, and she overheard Lonnie say to Defendant “Oh, so you say

somebody going to die?” to which Defendant responded “Nah man. It ain’t even like

that.” She then saw Lonnie hit Defendant in the side of the face, and the two men

began “throwing their hands up like they was going to fight,” and “[s]quaring up to

fight.” She stated that this “squaring up” went on for some time, and that “[t]he whole

time when they was doing the square-up thing, they didn’t never say nothing to each

other.” Lonnie swung at Defendant again, and the two men began throwing punches.

She stated that she never saw Defendant fall to the ground.

¶ 37 Soon after, she saw Cequel Stephens “[come] around on the other side of Lonnie

like he wanted to fight too, like, trying to act like he was squaring up.” Defendant

then “backed up and just snatched the gun from [Cequel], right there from the front

of his pants.” Defendant then told Cequel to “back up,” and Cequel ran away. She

testified that Lonnie didn’t run away, however—Lonnie “was still, like trying to fight

[Defendant], even with the gun.” Unlike with Cequel, she did not hear Defendant

give Lonnie a warning—“[Defendant] didn’t never say anything to Lonnie like, ‘Back

up.’ He just went to him like, pow, and just shot him . . . . He just did it.”

¶ 38 Shawnbrena testified that after being shot once, Lonnie tried to run away and

fell, but Defendant pursued Lonnie, and “shot him again” while he was “on the

ground”—“[Lonnie] hit the ground falling, [and Defendant] was already up on top of

him and shot him again.” While Lonnie lay on the ground bleeding, Shawnbrena STATE V. SWINDELL

asked Defendant why he shot Lonnie, and Defendant responded “I told that MF’er.”

She testified that she never saw Lonnie holding a gun, and that even after Defendant

grabbed the gun from Cequel, there was never “any fight or tussle over the gun,” and

Defendant “had it in his hand the whole time.”

¶ 39 Witness Shaquay Mullins offered similar testimony at trial, stating that as

soon as Lonnie threw the first punch at Defendant, the two men started to “square

up one-on-one” to fight. As a crowd began to gather around the fight, she heard

Defendant say “If y’all jump me, then I’m going to kill all of y’all.” The next thing she

saw was that Defendant “pulled the gun out of his pants and just started shooting.”

She testified that as soon as Defendant started shooting, Lonnie had tried to run

away, but that Lonnie “got caught in the back of the legs” by one of Defendant’s

bullets before he could escape. She stated that Defendant fired at Lonnie “four or five

times,” and that Lonnie was shot while “he was running away.” She never saw Lonnie

with a gun.

¶ 40 The State presented forensic evidence from Dr. Lauren Scott at trial, indicating

that Lonnie Smith had died from two to three gunshot wounds. One gunshot had

entered the right side of his back and exited in the front of his chest; a second had

entered from the side of his right leg and exited from the front of his thigh; and a

third had entered from the middle of his left thigh and exited from the side of his left

leg. Dr. Scott was unable to determine if the gunshot wounds on Lonnie’s legs had STATE V. SWINDELL

originated from a single gunshot, or two different gunshots. Dr. Scott stated that the

first gunshot wound to the back would have been fatal.

¶ 41 Defendant was indicted on 5 June 2017 in Bladen County Superior Court for

first-degree murder and possession of a firearm by a felon.2 Trial occurred beginning

on 13 November 2018 before Judge Jeffery K. Carpenter. Following the presentation

of all evidence, Defendant’s trial counsel requested that the jury be instructed on self-

defense (with regard to the murder charge) and on justification (with regard to the

possession of a firearm charge). After hearing argument, the trial court ultimately

ruled that Defendant was not entitled to the jury instruction on justification, but

chose to still instruct the jury on self-defense.

¶ 42 On 27 November 2018, the jury issued a verdict finding Defendant guilty of

second-degree murder and possession of a firearm by a felon. The trial court

sentenced Defendant to 300 to 372 months for second-degree murder and a

consecutive term of 19 to 32 months for possession of a firearm by a felon. Defendant

filed a timely appeal to this Court.

II. Analysis

¶ 43 Defendant raises only one issue on appeal, contending that the trial court erred

by denying his requested jury instruction on the justification defense as a potential

2 Defendant was previously convicted of a felony, possession with intent to sell and

deliver marijuana, on 16 June 2013. STATE V. SWINDELL

affirmative defense to the charge of possession of a firearm by a felon. For the reasons

explained below, I would hold that the trial court did not err in refusing Defendant’s

request for this instruction.

A. Preservation

¶ 44 As an initial matter, I first address whether Defendant has properly preserved

this issue for appellate review. Specifically, it is necessary to address Defendant’s

failure to include a copy of his written request for special jury instructions in the

appellate record.

¶ 45 Our statutes provide that when a party desires that the trial court provide a

specific jury instruction to the jury, the party “may tender written instructions” to

the trial court and the other parties “[a]t the close of the evidence or at an earlier time

directed by the judge.” N.C. Gen. Stat. § 15A-1231(a) (2019). Though the statute

uses the permissive verb “may,” our courts have typically held that requests for jury

instructions must be in writing. See, e.g., State v. Augustine, 359 N.C. 709, 729, 616

S.E.2d 515, 530 (2005) (“[T]his Court has held that a trial court did not err where it

declined to give requested instructions that had not been submitted in writing.”).

¶ 46 However, I believe this rule is still satisfied when it is clear from the entire

record that the defendant did, in fact, submit a written instruction request to the trial

court—even though the written request was somehow omitted from the appellate

record. See, e.g., State v. Locklear, 363 N.C. 438, 472, 681 S.E.2d 293, 317 (Brady, J., STATE V. SWINDELL

dissenting) (2009) (concluding that the defendant’s instruction request was improper

when “nothing in the record indicat[es] that defendant ever tendered a written

request to the trial court”) (emphasis added).

¶ 47 Here, although the record does not contain a copy of Defendant’s requested

written jury instruction on justification, the transcript makes clear that Defendant

did, in fact, submit a written request to the trial court. During the charge conference

on the final day of trial, the transcript demonstrates that Defendant “handed” the

prosecutor and the trial court “a request for jury instructions regarding the

possession of a firearm by a felon [charge] that contemplates the Deleveaux

[justification] test.” Moreover, on several occasions during bench conferences the trial

court discussed or recited the Deleveaux factors (which are the most commonly

accepted test for the justification defense), apparently reading from Defendant’s

written requested jury instruction.

¶ 48 Moreover, after the trial court ultimately denied Defendant’s requested

instruction, Defendant objected, and the court stated that it would “note your

objection for the record. It’s certainly . . . an issue that’s explorable on appeal.”

Defendant also properly objected after the instructions were presented to the jury.

See N.C. R. App. P. Rule 10(a)(2); Geoscience Grp., Inc. v. Waters Const. Co., 234 N.C.

App. 680, 686-87, 759 S.E.2d 696, 700-01 (2014) (noting that our appellate rules

require counsel to object to disputed jury instructions both during the charge STATE V. SWINDELL

conference and before the jury retires for deliberation).

¶ 49 Thus, I believe the record demonstrates that Defendant properly submitted his

request for the justification instruction in writing, and that Defendant properly

objected to the jury instructions in accord with our Appellate Rules. I would hold that

this issue has been preserved.

B. Justification Defense

¶ 50 Defendant contends that the trial court should have instructed the jury on the

justification defense in connection with his charge of possession of a firearm by a

felon. Under North Carolina law, it is illegal for a convicted felon to possess a firearm,

no matter how briefly or temporarily. See N.C. Gen. Stat. § 14-415.1(a) (2019)

(making it “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”). However, our

Supreme Court has recently held, in a case of first impression, that a felon may

nevertheless possess a firearm under “narrow and extraordinary circumstances”

when presented with an “imminent and impending threat of death or serious bodily

injury,” such that he has no choice but to arm himself in his defense. State v. Mercer,

373 N.C. 459, 462-64, 838 S.E.2d 359, 362-63 (2020). This doctrine is known as the

justification defense, and functions as “an affirmative defense,” similar to self-

defense, which requires that the defendant prove all elements of the defense “to the

satisfaction of the jury” in order to be excused of liability for possessing a firearm. Id. STATE V. SWINDELL

at 463, 838 S.E.2d at 363.

¶ 51 In general, a trial court must give the substance of a requested jury instruction

if it is “correct in itself and supported by [the] evidence.” Locklear, 363 N.C. at 464,

681 S.E.2d at 312 (internal marks and citation omitted). In order to determine

“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.” Mercer, 373 N.C. at 462, 838 S.E.2d at 362. 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) (internal

marks and citation omitted). “The defendant has the burden of demonstrating

prejudice.” Id.

¶ 52 The four elements of the justification defense are as follows:

(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 STATE V. SWINDELL

the criminal action and the avoidance of the threatened harm.

Mercer, 373 N.C. at 464, 838 S.E.2d at 363 (quoting United States v. Deleveaux, 205

F.3d 1292 (11th Cir. 2000)). A trial court is required to instruct the jury on

justification when evidence of each of the four elements is present. Id.

¶ 53 The most prominent case analyzing these four elements was Mercer, wherein

the defendant illegally fired a weapon after a large group of people ambushed him

outside his home. Id. at 460, 838 S.E.2d at 361. A group of 15 people had “walked to

defendant’s home to fight two of defendant’s friends,” and when the defendant arrived

home he found the group in his driveway “urging defendant and his friends to fight

them and blocking defendant from going into his house.” Id. The defendant tried to

speak to them to diffuse the situation, but the group “continued to approach him

saying they were ‘done talking.’” Id. The defendant noticed that several members of

the group were armed, and he “heard the sound of guns cocking.” Id. He noticed that

his younger cousin had a gun too, and was struggling to operate it—so the defendant

took the gun from his cousin, pointed it at the group and “told them to ‘back up.’ ” Id.

at 461, 838 S.E.2d at 361. He heard shots begin to fire, and he “dashed to the side of

the street” to get away, but when he saw over his shoulder that someone was still

shooting at him, he “shot back once and then the gun jammed,” whereupon he

immediately “threw the gun back” to his cousin and ran away. Id. The defendant’s STATE V. SWINDELL

testimony was supported by the testimony of his mother, who confirmed that a large

group had “ambush[ed]” defendant as he arrived home; that several members of the

group were armed; and that someone from the group was “chasing defendant and

shooting at him.” Id. at 460-61, 838 S.E.2d at 361.

¶ 54 During trial, the defendant requested that the jury be instructed on the

justification defense (in accord with United States v. Deleveaux), but the trial court

denied his request. Id. The case was appealed to our Supreme Court, which formally

adopted the justification test as set out in Deleveaux, while emphasizing that the

defense was only available under “narrow and extraordinary circumstances.” Id. at

463, 838 S.E.2d at 362. After revieing each of the four Deleveaux elements, the Court

ultimately held that the defendant had presented sufficient evidence to entitle him

to the jury instruction. Id. at 464, 838 S.E.2d at 363.

¶ 55 The Court found that the first element—whether the defendant was under an

imminent serious threat—was satisfied because the defendant was ambushed by a

large aggressive group outside his house, and while “backing away from the group,

defendant heard the sound of guns cocking and heard someone in the group say they

were ‘done talking.’” Id. at 464-65, 838 S.E.2d at 363-64. The Court found that the

second element—whether the defendant recklessly placed himself in a dangerous

situation—was satisfied because the defendant found himself in this situation

“simply by arriving at his home and trying to explain himself to the group who were STATE V. SWINDELL

blocking him from entering his home.” Id. at 465, 838 S.E.2d at 364.

¶ 56 The Court found that the third element—whether the defendant had a

reasonable alternative to breaking the law—was satisfied because, after the

defendant heard guns being cocked, “a reasonable jury could conclude that it was too

late to call 911 and that running away would have put him at greater risk of being

shot.” Id. The Court found that the fourth and final element—whether there was a

causal relationship between the criminal action and the threatened harm—was

satisfied because the defendant only briefly took possession of the gun “when he heard

other guns being cocked, and he gave the gun back to his cousin when it jammed and

he was able to run away.” Id. Thus, because the defendant “presented sufficient

evidence of each Deleveaux factor,” the Supreme Court held that “he was entitled to

have the justification defense presented to the jury.” Id. at 466, 838 S.E.2d at 364.

¶ 57 Applying these elements in the present case, I conclude that Defendant has

not presented sufficient evidence of each of the four Deleveaux factors and thus the

trial court did not err in denying him the jury instruction. Specifically, I do not

believe that Defendant can satisfy either the second or third element of the test.

¶ 58 The second element of the Deleveaux test requires a showing that Defendant

“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. Here

during the afternoon of 17 May 2017, Defendant had several opportunities to avoid a STATE V. SWINDELL

dangerous confrontation at Oakdale Homes, but each time he chose to go forward

despite the danger.

¶ 59 First, Defendant chose to go back to Oakdale Homes for a second time that

afternoon, fresh from a fight, despite knowing that more trouble was likely to ensue.

Defendant’s first visit to Oakdale Homes that afternoon involved breaking up a fight

between his brother (Darryl), Lonnie’s brother (Anthony), and several others. As

Defendant was leaving the fight, Anthony shouted at them “You don’t belong out here

anyway . . . This is NFL territory”—putting Defendant on notice that he was

unwelcome at Oakdale and that Oakdale was considered gang territory.

¶ 60 Defendant then drove his brother to Defendant’s home, where they remained

for only ten to 15 minutes before receiving a phone call from Darryl’s wife, who lived

at Oakdale. Darryl’s wife informed him that “the individuals [who fought with

Darryl] were back,” and Darryl relayed this information to Defendant. Darryl then

“asked [Defendant] to take him back to his home” because he “was concerned.” So,

despite knowing that the people he had just fought with were at still at Oakdale,

Defendant chose to leave his house again and drive his brother back to Oakdale.

¶ 61 Moreover, according to the written statement that Officer Warwick recorded

during his interview with Defendant (which occurred the same night as the shooting),

Defendant answered as follows when asked why he returned to Oakdale Homes for a

second time that afternoon: STATE V. SWINDELL

[Officer Warwick]: Being that there was an altercation that . . . [Defendant] went and got his brother from, and then he agreed to take his brother back in just a short time when he knew there was problems, he – he kind of downplayed it, indicated that he – he didn’t suspect there would be additional problems, but if there was, that it would only be – rise to the level of a fight.

[Prosecutor]: Okay. So [Defendant] told you – he acknowledged there was a likelihood of a fight going back over there?

...

[Officer Warwick]: Yes

¶ 62 Defendant had a multitude of safer options available to him instead of

returning to Oakdale—he could have stayed home and lent his vehicle to his brother

so Darryl could to Oakdale; he could have asked his friend Broadus (who was present

with Defendant throughout the whole day) to drop off Darryl; he could have convinced

Darryl to stay at Defendant’s place until things cooled down; he could have told

Darryl’s wife to stay inside and call the police if she feared another fight. But

Defendant took none of these reasonable precautions—instead, he chose to return to

Oakdale, fully knowing that he would see the people he had just fought, and fully

knowing there was “a likelihood of a fight” should he return.

¶ 63 Even more rashly, once Defendant arrived at Oakdale, he didn’t simply drop

his brother off and then depart. Nor did he go inside his brother’s apartment to avoid

further confrontation. Instead, Defendant chose to congregate with a group of people STATE V. SWINDELL

out in the open in the Oakdale parking lot, chatting and mingling, and even talking

with the neighbors about the earlier fight. After spending at least 30 minutes outside

chatting, Defendant then saw a group of men approaching him—a group which was

led by Lonnie Smith, and also included several of the men who had fought his brother

earlier that day (Cequel Stephens, Bobby Lee Ratliff, and Anthony Smith).

Defendant knew that Lonnie was dangerous—he himself described Lonnie as “a

pretty tough guy . . . pretty brutal” with a “bad reputation . . . for violence,” and

Defendant further knew that Lonnie was “the leader of a local gang called ‘NFL.’”

But Defendant nevertheless stood his ground and watched as Lonnie approached.

¶ 64 The moment that Defendant saw Lonnie and the group approaching, he again

had a number of safer options available to him—he could have immediately left in his

vehicle (which remained in close proximity); he could have gone inside his brother’s

apartment; he could have called the police if he feared for his safety. In fact,

Defendant himself acknowledged that he knew he could have simply gotten in his car

and left the moment he saw Lonnie approaching:

[Prosecutor]: So when Mr. Smith approached you . . . you could have – instead of talking to him, you could have just gone – gone to your car and left. You could have done that, couldn’t you?

[Defendant]: Before he punched me, I just didn’t think it would elevate to that level.

[Prosecutor]: No. But you could have simply gone to your STATE V. SWINDELL

car, like you did after you shot him, right? You could have gotten in your car and left?

[Defendant]: I would imagine so.

[Prosecutor]: But you didn’t do that.

[Defendant]: No, I didn’t.

¶ 65 Instead of leaving during this opportunity, Defendant carelessly chose to

remain in the area and stand his ground while Lonnie and his gang approached, with

the obvious intention of fighting.

¶ 66 Thus, I believe the sum of the evidence clearly demonstrates that Defendant

recklessly placed himself in a situation where he knew he would likely be forced to

engage in criminal conduct. Defendant recklessly returned to Oakdale and lingered

in the parking lot despite: (1) getting into a fight with the brother of a local gang

leader only 30 minutes prior; (2) being told by a gang member not to come back; (3)

being told by Darryl’s wife that the people he had fought with were still at Oakdale;

and (4) seeing that same gang leader approach him from across the lot.

¶ 67 Defendant argues that he should receive the justification instruction because

this case is “significantly similar” to Mercer, but the evidence shows otherwise. The

defendant in Mercer easily satisfied the second element of the Deleveaux test because

he had no role whatsoever in bringing about the danger that befell him—he simply

arrived at his home, fresh from a job interview, only to find himself ambushed by a

hostile mob that was intent on fighting him and blocking him from entering his house. STATE V. SWINDELL

Mercer, 373 N.C. at 460, 838 S.E.2d at 361. But unlike the defendant in Mercer,

Defendant here knowingly placed himself into a situation where he knew that

violence was likely to arise. Defendant had many opportunities to choose a safer path

that day, but instead willingly chose a dangerous route at every turn. Defendant thus

cannot satisfy the second element of the Deleveaux test.

¶ 68 Nor can Defendant satisfy the third element of the Deleveaux test—showing

that he “had no reasonable legal alternative to violating the law.” Id. at 464, 838

S.E.2d at 363. Even when viewing the evidence from Defendant’s point of view, there

were many rational alternatives that Defendant could have chosen instead of picking

up a gun that day.

¶ 69 Defendant’s own accounts differ significantly in describing how the second

fight outside of Oakdale progressed. According to the statement that Defendant gave

to Officer Warwick, after Lonnie began to hit Defendant, the two “got into a tussle,”

and “as they tussled, other individuals became involved in the altercation; [and]

during the altercation, a gun just suddenly appeared.” Defendant stated that he and

Lonnie “struggled over the gun, that [Defendant] got the gun, and the gun went off.”

¶ 70 According to Defendant’s trial testimony, after Lonnie approached him and

began hitting him, Defendant stumbled and fell backwards, and as he was sitting on

the ground he heard Anthony say “back the F up” to “the other guys that were with

[Defendant].” Defendant noticed “a gun on the ground” in front of him, but he did not STATE V. SWINDELL

see where it came from. Defendant heard Darryl say “Watch out. He got a gun”—

though it is unclear who Darryl was referring to. Defendant heard someone say “Pop

him,” and before Lonnie could reach for the gun, Defendant snatched it up and

immediately shot.

¶ 71 Under either of these accounts, Defendant would have still had several

reasonable legal alternatives to picking up the gun and shooting—he could have tried

to exit the “tussle” as soon as other individuals became involved; he could have tried

to flee to his car or into the apartment building; he could have kicked the gun away

out of Lonnie’s reach; he could have called for help; or asked his friends to help him

fend off Lonnie so he could escape. Defendant chose none of these options, and

instead chose to pick up the gun and shoot.

¶ 72 This conclusion is also supported by the forensic evidence presented at trial,

which showed that Lonnie had died from a gunshot wound that entered in his back

and exited through the front of his chest. This naturally raises the question—if

Defendant was truly shooting to defend himself from an imminent threat, and if he

truly had no other options, then why did he shoot Lonnie from behind while his back

was turned?

¶ 73 Defendant again analogizes to Mercer in an attempt to support his argument,

but the facts are distinguishable. In Mercer, the defendant only took possession of a

gun after he heard the attacking group say they were “done talking,” saw several of STATE V. SWINDELL

them holding guns, and “heard the sound of guns cocking.” Mercer, 373 N.C. at 460-

61, 838 S.E.2d at 361. He then grabbed the gun from his cousin (who had been

struggling to operate it), “shot back once” as he retreated, and then immediately

“threw the gun back” to his cousin and ran away. Id. Here, even according to

Defendant’s own account, he never heard any guns cocking, and he never actually

saw Lonnie or anyone else holding a gun. The only gun he saw was the one that

mysteriously landed on the ground right in front of him. Moreover, once in possession

of the gun, Defendant here (unlike the Defendant in Mercer) didn’t simply fire a

warning shot to cover his retreat as he fled—Defendant shot Lonnie Smith at close

range, in the back, and fired at least two to three shots. This is not the behavior of a

person who has no reasonable alternative to taking up a gun. Thus, I believe that

Defendant cannot show that he had no reasonable legal alternative to violating the

law, and he cannot satisfy the third element of the Deleveaux test.

¶ 74 I recognize that this case presents somewhat sympathetic circumstances—

where a seemingly peaceable man, who had earlier gone out of his way to break up a

fight, became embroiled in a conflict that he did not start. It is true that Defendant

was not the initial aggressor in either of the fights that occurred that day. However,

this does not change the fact that Defendant had many chances to do the prudent

thing and prevent further violence from occurring—he could have simply not

returned to Oakdale for the second time (knowing, as he did, that he was not welcome STATE V. SWINDELL

and that another fight was very likely to ensue); he could have left or gone inside as

soon as he saw Lonnie’s group approaching from across the parking lot; or he could

have sought an opportunity to escape the altercation instead of picking up a gun and

shooting. But he did not.

¶ 75 Thus, because Defendant recklessly placed himself in a dangerous situation,

and because he had several reasonable alternatives to breaking the law, I believe he

cannot satisfy either the second or third element of the Deleveaux test. He was

accordingly not entitled to have the justification instruction presented to the jury,

and the trial court did not err in failing to provide the instruction. I therefore