State v. Swindell

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
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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
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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
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“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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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
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entered against defendant and remanding the case so that defendant could receive a

new trial.

Justices HUDSON and EARLS join in this dissenting opinion.