               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 257PA18

                               Filed 28 February 2020

 STATE OF NORTH CAROLINA

              v.
 SYDNEY SHAKUR MERCER


      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 818 S.E.2d 375 (N.C. Ct. App. 2018), vacating a judgment

entered on 8 May 2017 by Judge Jesse B. Caldwell III in Superior Court, Mecklenburg

County, and remanding for a new trial. Heard in the Supreme Court on 22 November

2019 in session in the Johnston County Courthouse in the City of Smithfield pursuant

to section 18B.8 of chapter 57 of the 2017 North Carolina Session Laws.


      Joshua H. Stein, Attorney General, by Mary C. Babb, Assistant Attorney
      General, for the State-appellant.
      Glenn Gerding, Appellate Defender, by Daniel K. Shatz, Assistant Appellate
      Defender, for defendant-appellee.

      HUDSON, Justice.

      Here, we must determine whether the Court of Appeals erred by concluding

that the trial court committed prejudicial error when it failed to instruct the jury on

justification as a defense for the charge of possession of a firearm by a felon. Because

we conclude that the Court of Appeals did not err, we affirm.
                                  STATE V. MERCER

                                  Opinion of the Court



                        I.     Factual and Procedural Background
      On 30 March 2016 an altercation occurred outside defendant’s home. The State

and defendant presented different versions of that event at trial. Due to our standard

of review in this case, we present the facts primarily from defendant’s version of

events.

      Dazoveen Mingo and a group of approximately fifteen family members

(hereinafter, the Mingo group) walked to defendant’s home to fight two of defendant’s

friends, J and Wardell. When defendant arrived at his house with J and Wardell after

a job interview, the Mingo group was there urging defendant and his friends to fight

them and blocking defendant from going into his house. Defendant asked the Mingo

group what was going on and they accused him of jumping a member of their group.

Defendant denied having anything to do with a jumping, but the Mingo group

continued to approach him saying they were “done talking.”

      Defendant’s mother heard a commotion outside her house and went outside to

find the Mingo group “ambushing” defendant and preventing him from coming into

the house. She tried to calm everyone down but the Mingo group continued to try to

fight, walking toward defendant and his friends, who backed away. Both defendant

and his mother observed that members of the Mingo group were armed.

      Defendant heard the sound of guns cocking. Wardell had a gun but he did not

seem to know what he was doing with it. Defendant took the gun from Wardell, but

continued to talk to the Mingo group and deny involvement in the jumping.


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                                  Opinion of the Court



Defendant knew he was not allowed to possess a firearm, but he saw Wardell was

struggling with the gun and defendant wanted to make sure they survived.

Defendant pointed Wardell’s gun at the Mingo group and told them to “back up.” He

heard shots fired by someone else.

      When defendant’s mother heard the shot, she urged defendant to run away

because she believed the Mingo group was trying to kill him. She heard one member

of the group, Ms. Mingo, tell her son to shoot defendant and saw Ms. Mingo chasing

defendant and shooting at him.

      Defendant dashed to the side of the street. When he observed that someone

was still shooting at him, defendant shot back once and then the gun jammed.

Defendant threw the gun back to Wardell to fix it and defendant ran away. Early the

next morning defendant turned himself in to the police.

      The State’s witnesses provided a slightly different version of events:

      Dazoveen Mingo and a group of family members walked to defendant’s home

to fight two of defendant’s friends, J and Wardell. None of the Mingo group was

armed. Defendant, J, and Wardell arrived at defendant’s house about the same time

as the Mingo group and Dazoveen noticed that defendant had a handgun in his belt.

      The Mingo group began urging defendant and his friends to fight them,

walking toward defendant and his friends, who backed away. Defendant removed the

gun from his pants and pointed it while telling the group to “back up.” Defendant

then fired a shot into the air.


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                                   Opinion of the Court



       After defendant fired the shot, Dazoveen’s aunt arrived with a gun. Dazoveen’s

mother grabbed the gun from the aunt and shot it into the air. Both defendant and a

member of the Mingo group fired shots into the air three to four times each. After

these shots, the Mingo group went home and called the police.

       Defendant was indicted on 11 April 2016 for possession of a firearm by a felon

under N.C.G.S. § 14-415.1 and tried before a jury beginning in March 2017. At the

conclusion of all the evidence, defendant requested a jury instruction on justification

as a defense to the charge of possession of a firearm by a felon. The trial court denied

the request, and defendant objected. During deliberations, the jury sent a note asking

the trial court for “clarification on whether or not [defendant] could be justified in

possession of a firearm even with the stipulation [that he was] a convicted felon.” In

response, the trial court reread its original instruction on possession of a firearm by

a felon to the jury.

       The jury returned a verdict of guilty on the charge of possession of a firearm

by a felon. Defendant appealed his conviction to the Court of Appeals, arguing that

the trial court erred by denying his requested jury instruction on justification as a

defense to possession of a firearm by a felon. The Court of Appeals concluded that

defendant was entitled to a justification defense instruction. We affirm.

                                 II.     Standard of Review

       We review a decision of the Court of Appeals’ to determine whether it contains

any error of law. N.C.R. App. P. 16(a); State v. Malone, 833 S.E.2d 779, 787 (N.C.


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                                   Opinion of the Court



2019) (citing State v. Brooks, 337 N.C. 132, 149, 446 S.E.2d 579, 590 (1994)). A trial

court must give the substance of a requested jury instruction if it is “correct in itself

and supported by the evidence . . . .” State v. Locklear, 363 N.C. 438, 464, 681 S.E.2d

293, 312 (2009) (citing State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129

(1993)); see also, e.g., 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 the

defendant to support a self-defense instruction, “the instruction must be given even

though the State’s evidence is contradictory.”). 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. State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988) (“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.”).

                                       III.       Analysis

A. Justification as a Defense to N.C.G.S. § 14-415.1

      In North Carolina, “[i]t shall be 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 or any weapon of mass death and destruction as defined in [G.S. § 14-

288.8(c)].” N.C.G.S. § 14-415.1(a) (2017). “The offense of possession of a firearm by a

convicted felon has two essential elements: (1) the defendant has been convicted of a


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                                   Opinion of the Court



felony, and (2) the defendant subsequently possessed a firearm.” State v. Floyd, 369

N.C. 329, 333, 794 S.E.2d 460, 463 (2016) (citation omitted).

      Whether justification is a common-law defense to a charge of possession of a

firearm by a felon under N.C.G.S. § 14-415.1 is a question of first impression in our

Court. Previous cases addressing this issue at the Court of Appeals have assumed

arguendo that justification is available as a defense to a charge of possession of a

firearm by a felon, but the defense has never been recognized by this Court because

none of the previous cases presented a situation in which a defendant would have

been entitled to the instruction under the analysis the defendant proposed to the

Court of Appeals. See State v. Monroe, 233 N.C. App. 563, 568–69, 756 S.E.2d 376,

379–80 (2014), aff'd per curiam, 367 N.C. 771, 768 S.E.2d 292 (2015) (surveying prior

Court of Appeals cases).

       We now hold that in narrow and extraordinary circumstances, justification

may be available as a defense to a charge under N.C.G.S. § 14-415.1.1



      1 Some form of the defense of justification has been widely recognized by other
jurisdictions as a defense to possession of a firearm by a felon. See, e.g., United States
v. Gomez, 92 F.3d 770, 774–75 (9th Cir. 1996); United States v. Paolello, 951 F.2d 537,
541 (3d Cir. 1991); United States v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990);
United States v. Gant, 691 F.2d 1159, 1161–62 (5th Cir. 1982); Smith v. State, 290
Ga. 768, 770, 723 S.E.2d 915, 918 (2012); People v. Dupree, 486 Mich. 693, 696, 788
N.W.2d 399, 401 (2010); Humphrey v. Commonwealth, 37 Va. App. 36, 44–48, 553
S.E.2d 546, 550–52 (2001).




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                                    Opinion of the Court



      We note that justification is an affirmative defense and does not negate any

element of N.C.G.S. § 14-415.1. The justification defense “serves only as a legal excuse

for the criminal act and is based on additional facts and circumstances that are

distinct from the conduct constituting the underlying offense.” State v. Holshouser,

833 S.E.2d 193, 197 (N.C. Ct. App. 2019) (citing United States v. Deleveaux, 205 F.3d

1292, 1297–98 (11th Cir. 2000)). Thus, like other affirmative defenses, a defendant

has the burden to prove his or her justification defense to the satisfaction of the jury.

See State v. Sanders, 280 N.C. 81, 85, 185 S.E.2d 158, 161 (1971) (“When defendant

relies upon some independent, distinct, substantive matter of exemption, immunity

or defense, beyond the essentials of the legal definition of the offense itself, the onus

of proof as to such matter is upon the defendant.” (quoting State v. Johnson, 229 N.C.

701, 706, 51 S.E.2d 186, 190 (1949))). See also, e.g., State v. Caldwell, 293 N.C. 336,

339, 237 S.E.2d 742, 744 (1977) (“[I]nsanity is an affirmative defense which must be

proved to the satisfaction of the jury by every accused who pleads it.”); State v.

Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975) (“[Unconsciousness] is an

affirmative defense; . . . the burden rests upon the defendant to establish this defense,

unless it arises out of the State's own evidence, to the satisfaction of the jury.”).

      The Court of Appeals looked to the Deleveaux case for guidance as to how a

defendant could invoke the defense of justification. We view the Deleveaux factors as




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                                     Opinion of the Court



appropriate and adopt them here. 2 Accordingly, we hold 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.
Deleveaux, 205 F.3d at 1297. Having determined that justification may be a defense

to N.C.G.S. § 14-415.1 and that a justification instruction must be given when each

Deleveaux factor is supported by evidence taken in the light most favorable to

defendant, we now turn to the specific facts of the case at hand.

B. Application of the Defense

       “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.” State v. Mash, 323 N.C. 339, 348, 372




       2 We recognize that the court in Deleveaux analyzed 18 U.S.C. § 922(g)(1), the federal
equivalent of N.C.G.S. §14-415.1. The two statutes share similar language and restrict
similar behavior. The federal statute makes it unlawful for a convicted felon “to ship or
transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm
or ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1). The North Carolina
statute makes it unlawful for a convicted felon “to purchase, own, possess, or have in his
custody, care, or control any firearm.” Thus, we find the Deleveaux factors helpful and
appropriate as a rubric for defendants to establish that they are entitled to an instruction on
justification as a defense to a charge under N.C.G.S. §14-415.1.

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                                   Opinion of the Court



S.E.2d 532, 537 (1988) (citations omitted). Thus, we examine whether evidence,

considered in the light most favorable to defendant, tends to show each element of

justification such that the trial court should have instructed the jury on justification

as a defense.

      First, defendant presented evidence that he was under unlawful and present,

imminent and impending threat of death or serious bodily injury. When defendant

arrived at his own house, there was a group of people ready to fight him, and those

people were blocking him from going inside. The group accused defendant of jumping

one of them and Ms. Mingo was shouting at her son to shoot defendant. While trying

to explain that he had nothing to do with the underlying conflict and backing away

from the group, defendant heard the sound of guns cocking and heard someone in the

group say they were “done talking.” Defendant testified that he saw his cousin

struggling with his gun, and only then took the gun himself. While there is some

evidence from the State that defendant was armed before the threat arose, we must

view the evidence in the light most favorable to defendant, and defendant’s evidence

tends to show that he was under unlawful and present, imminent and impending

threat of death or serious bodily injury.

      Second, the evidence suggests that defendant did not negligently or recklessly

place himself in a situation where he would be forced to engage in criminal conduct.

Defendant testified that when he arrived home after a job interview, a large group of

people were there looking for a fight. Defendant’s mother testified that the group was


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                                   Opinion of the Court



blocking defendant from going into his house and that from the moment he exited his

car they were challenging him to fight. Although defendant tried to explain that he

was not involved in the underlying conflict from earlier that day and physically

backed away from the group, the situation escalated rapidly. Considering the

evidence in the light most favorable to defendant, we conclude that a jury could find

that he did not negligently or recklessly place himself in a situation where he would

be forced to arm himself simply by arriving at his home and trying to explain himself

to the group who were blocking him from entering his home.

      Third, some evidence supports defendant’s claim that he had no reasonable

legal alternative to violating the law. Defendant was unable to go into his home when

he arrived because the group blocked his path, and he was already out of the car and

unable to drive away when the group said they were “done talking.” Defendant

testified that after he heard guns being cocked, he looked over to see his cousin

struggling with the gun. Again, considering the evidence in the light most favorable

to defendant, 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. A jury could have

concluded that defendant had no reasonable legal alternative to violating the law.

      Fourth and finally, there was evidence tending to show a direct causal

relationship between the criminal action and the avoidance of the threatened harm.

According to defendant, he only 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


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                                   Opinion of the Court



to run away. Defendant argued that having the gun allowed him to create space

enough to retreat and avoid being jumped or shot by the group. The State presented

evidence to the contrary, but when considering the evidence in the light most

favorable to defendant, a jury could find that his gun possession was directly caused

by his attempt to avoid a threatened harm.

      Thus, viewed in the light most favorable to defendant, we conclude that he

presented sufficient evidence of each Deleveaux factor to require the court to instruct

the jury on justification as a defense to the charge of possession of a firearm by a

felon. We emphasize that we are not determining whether defendant here 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.

      Having determined that defendant was entitled to a jury instruction on

justification as a defense, we must now evaluate whether the trial court’s failure to

give this instruction was prejudicial to defendant. “[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. . . .” N.C. Gen.

Stat. § 15A-1443(a) (2017).

      The jury was not instructed on justification as a defense to the possession of a

firearm by a felon and it ultimately convicted defendant on that charge. But, during


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                                    Opinion of the Court



deliberations, the jury sent a note to the trial court explicitly asking about the

availability of a justification defense for the charge of possession of a firearm by a

felon. This question indicates, at a minimum, that the jury was concerned about this

legal issue. We conclude that the trial court’s failure to give a justification instruction

created a reasonable possibility that the jury would have reached a different result.

                                       IV.      Conclusion

      We hold that the Court of Appeals did not err by recognizing the availability of

a common law justification defense for a possession of a firearm by a felon charge

under N.C.G.S. § 14-415.1 nor by prescribing the Deleveaux factors as the framework

within which to determine whether the defense should have been presented to the

jury. Having considered the evidence in the light most favorable to defendant, we hold

that there is sufficient evidence of each Deleveaux factor to require a justification

instruction be given to the jury. Because the failure to give that instruction was

prejudicial, defendant is entitled to a new trial, and we affirm the decision of the

Court of Appeals.



AFFIRMED.




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      Justice MORGAN dissenting.


      While I agree with my distinguished colleagues of the majority that our Court

should avail itself of the opportunity that this case presents to expressly recognize

and establish a defense of justification as an affirmative defense which is available to

a criminal defendant who is accused of the offense of possession of a firearm by a

felon, I respectfully dissent on the ground that the majority has formalized a

threshold which is perilously low for the requirements of this affirmative defense to

be met. In this case of first impression in this Court, while the majority states that

this affirmative defense is now available “in narrow and extraordinary

circumstances,” in my view defendant here did not present evidence of circumstances

at trial which were sufficient to qualify him for the affirmative defense at issue.

Therefore, while I agree with the decision of the majority to establish a defense of

justification which is available as an affirmative defense to a criminal defendant who

is charged with the offense of possession of a firearm by a felon, I must dissent from

the majority’s decision due to my belief that defendant in the instant case did not

present evidence sufficient to show each necessary element to warrant a jury

instruction on justification as a defense.

      In welcoming the establishment of the justification defense for a criminal

defendant in the state courts of North Carolina who is charged under Section 14-

415.1 of the General Statutes of North Carolina, I agree with the majority’s premise
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                                  Morgan, J., dissenting



that our courts should implement the four factors enunciated in United States v.

Deleveaux, which a defendant must satisfy in order to establish justification as a

defense:

             (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.

205 F.3d 1292, 1297 (11th Cir. 2000). I also concur with the majority’s recognition of

the well-established principle, as cited in its opinion, that an appellate court reviews

de novo whether or not a defendant is entitled to a requested jury instruction on an

affirmative defense upon examining the evidence in the light most favorable to the

defendant so as to determine whether each element of the affirmative defense is

supported by the evidence.

      Within the Felony Firearms Act, codified in Article 54A of the North Carolina

General Statutes, is N.C.G.S. § 14-415.1. Defendant was convicted in the present case

of possession of a firearm by a felon, in violation of N.C.G.S. § 14-415.1. The offense

is established in § 14-415.1(a), which states in pertinent part: “It shall be 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.” In according the word “any”—which is

used twice in the excerpted passage of the statute—its plain and simple meaning, no


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                                    Morgan, J., dissenting



person convicted of a felony is exempted from the statutory reach of this offense.

Likewise, no firearm is excluded from the application of this criminal law. Inherent

in the usage of such unequivocal and unambiguous language, and reinforced by the

dearth of any terminology to compromise or to weaken its directness, is the clarity of

the legislative intent undergirding N.C.G.S. § 14-415.1(a) that there are no exceptions

to the operation of the statute. Therefore, while I agree with the majority’s

presumption that this Court has the authority to judicially carve out an affirmative

defense to the criminal statutory provision,1 nonetheless I am compelled to tailor this

newly formalized affirmative defense of justification as a defense to N.C.G.S. § 14-

415.1 in such a way that it is appropriately only available to criminal defendants in

the type of narrow and extraordinary circumstances which most closely retain the

original concept of the statute’s lack of any exceptions.

       In this case of first impression, as this Court adopts the standards of the

federal court case United States v. Deleveaux to establish the affirmative defense of

justification in North Carolina state court cases involving the criminal charge of

possession of a firearm by a felon, it would be prudent to examine the federal courts’

approach to the utilization of the defense in circumstances where, as in the instant

case, the legislative enactment comprehensively bars a convicted felon from acquiring

a firearm by any means. “To ensure that this strict prohibition is effectuated, we



       1 “[S]tatutes rarely enumerate the defenses to the crimes they describe.” United
States v. Panter, 688 F.2d 268, 270 (5th Cir. 1982) (footnote omitted).

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                                   Morgan, J., dissenting



should require that the defendant meet a high level of proof to establish the defense

of justification.” United States v. Paolello, 951 F.2d 537, 541 (3rd Cir. 1991). The

Seventh Circuit in United States v. Perez emphasized that, other than when a felon

who is not engaged in criminal activity grabs a gun which is actively threatening

harm, a justification defense “will rarely lie in a felon-in-possession case” and is

available “only in the most extraordinary circumstances.” 86 F.3d 735, 737 (7th Cir.

1996) (emphasis added). “A ‘mere scintilla’ of evidence supporting a defendant’s

theory . . . is not sufficient to warrant a [justification] defense instruction.” United

States v. Morton, 999 F.2d 435, 437 (9th Cir. 1993). Other federal courts have reached

similar conclusions which require strict standards for this affirmative defense. See,

e.g., United States v. Singleton, 902 F.2d 471–72 (6th Cir. 1990) (holding “that a

defense of justification may arise in rare situations”) (citation omitted) (emphasis

added); United States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000) (finding that the

justification defense “is reserved for ‘extraordinary circumstances’ ”) (citation omitted)

(emphasis added).

      In examining the trial evidence when taken in the light most favorable to

defendant in order to determine whether or not the evidence was sufficient to entitle

him to a jury instruction on justification as a defense to the criminal offense of

possession of a firearm by a felon as established by N.C.G.S. § 14-415.1(a), in my view

the first factor—“the defendant was under unlawful and present, imminent, and

impending threat of death or serious bodily injury”—and the third factor—“the


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                                  Morgan, J., dissenting



defendant had no reasonable legal alternative to violating the law”—were

insufficiently shown by defendant to establish the affirmative defense and to require

an instruction to the jury on it. Stated another way, because the defendant did not

show sufficient evidence of all four of the Deleveaux factors, the circumstances

presented at trial were not sufficiently narrow and extraordinary to support a defense

of justification.

       While the circumstances described in the testimony presented at trial

concerning the two antagonistic groups of people confronting each other in an outdoor

environment is a disturbing situation, they do not rise to a level which constitutes

sufficient evidence to satisfy all of the required Deleveaux factors. Even taking the

evidence in the light most favorable to defendant, such evidence falls short of the high

standards articulated in the cited case law. The evidence at trial showed that

defendant was engaged in discussion with the members of the “Mingo group” during

the entirety of the confrontation. While there were angry responses to defendant’s

statements from the “Mingo group” members and gunshots fired by unknown

individuals within the two groups, defendant extricated himself from the unpleasant

situation simply by running away from it. As defendant put it, “I just run home. Not

run home, but run away.” Hence, I am not persuaded that it was necessary for

defendant to possess a firearm in order to escape from the unlawful and present,

imminent, and impending threat of death or serious bodily injury. Also, the trial

evidence offered by defendant himself demonstrated that there was no need for him


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                                   Morgan, J., dissenting



to possess a firearm during this altercation: defendant’s cousin Wardell Sherill had a

firearm which he displayed, defendant “hurried up and snatched it out of his hand”

after hearing “people cock their guns back” because “Wardell Sherill is my little

cousin,” and defendant subsequently returned the gun to its owner as he “threw it to

Mr. Sherill.” Through this testimony of defendant, it is apparent that he was not in a

position in which he had no reasonable legal alternative to violating the law, because

after he unilaterally and voluntarily took possession of the firearm from its owner,

defendant unilaterally and voluntarily returned the firearm to its owner when

defendant was finished with it. “Generalized fears will not support the defense of

justification.” United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). As stated

in United States v. Lewis:

              [a justification defense] does not arise from a “choice” of
              several sources of action; it is instead based on a real
              emergency. It may be asserted only by a defendant who was
              confronted with a crisis as a personal danger, a crisis that
              did not permit a selection from among several solutions,
              some of which would not have involved criminal acts.

628 F.2d 1276, 1279 (10th Cir. 1980) (emphasis added), cert. denied, 450 U.S. 924

(1981).

       It is needless for me to address whether any of the other Deleveaux factors

exist, since pursuant to my analysis regarding the sufficiency of the evidence to

invoke the affirmative defense of justification, the first and third factors fail to exist,

and all of them must be present for the jury instruction to be given.



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                                  Morgan, J., dissenting



      I would readily join the majority in the conclusion that the defense of

justification as an affirmative defense to a charge of possession of a firearm by a felon

under N.C.G.S. § 14-415.1 should be deemed to be formally established by virtue of

the present case. However, the “rare” and “most extraordinary” circumstances which

courts routinely require to be shown through a “high level of proof to establish the

defense of justification” have not been satisfied by defendant in this case in light of

the clear intent of the legislature to create a pervasive denial of the possession of

firearms by persons convicted of felony offenses and the resulting judicial

responsibility “to ensure that this strict prohibition is effectuated.” Through the

majority’s determination that defendant here merited a jury instruction at trial on

the affirmative defense of justification on the basis of the evidence presented in this

case, it has set a standard in this case of first impression which is far too low to

represent the appropriate evidentiary threshold. While the majority purports to have

copiously constrained the availability of the affirmative defense of justification in

cases involving N.C.G.S. § 14-415.1 to “narrow and extraordinary circumstances,” I

disagree. Accordingly, I would reverse the decision of the Court of Appeals on the

basis that there was not sufficient evidence to entitle defendant to a jury instruction

on justification as a defense to the charged offense under N.C.G.S. § 14-415.1 of

possession of a firearm by a felon.




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