Heard in the Court of Appeals February 25, 2014.
Gaston County. No. 12 CRS 5522-23. Yvonne Mims Evans, Judge.
Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State.
Mark Hayes for Defendant.
McGEE, Judge. Judge STEELMAN concurs. Judge STROUD dissents with separate opinion.
On writ of certiorari from judgment entered 11 April 2013 by Judge Yvonne Mims Evans in Superior Court, Gaston County. Heard in the Court of Appeals 25 February 2014.
Antonio Alonzo Monroe (" Defendant" ) was indicted for first-degree murder of Mario Davis (" Davis" ), possession of a firearm by a felon, and for attaining the status of an habitual felon. A jury found Defendant not guilty of first-degree murder but guilty of possession of a firearm by a felon and of attaining the status of an habitual felon on 10 April 2013. Defendant appeals from judgments entered upon his convictions.
The night before the offenses at issue, Defendant and Davis had an argument at the residence of Defendant's uncle. Antwan Cobb (" Cobb" ), a witness to the events, testified that " as we unlock the door to leave out, [Davis and another man] barge in[.]" An argument resulted, the police arrived, and the argument ended. The following day, 17 June 2011, Defendant and Davis had another brief argument outside the residence of Jah'Kwesi Gordon (" Gordon" ). Davis told Defendant he was going to " turn the heat up on" him, and Davis then left with O'Brian Smith (" Smith" ).
Shortly thereafter, Davis returned to the front yard of Gordon's residence, along with Smith. There was conflicting evidence as to whether Davis had a gun when he returned. Cobb testified that Davis said he was " going to stay out here until the door come open." Gordon retrieved a gun from his bedroom in the back of the house. While Defendant and Gordon were inside the house, Defendant took the gun from Gordon.
Gordon went outside the house to ask Davis to leave. Defendant remained in the house with the gun. Gordon testified that he was outside talking to Davis for less than five or ten minutes before Defendant came to the doorway. Gordon further testified that, when Defendant came to the doorway, " [h]e had a couple more words and then [Davis] hit" Defendant " towards the facial area." Defendant then shot Davis five times. Defendant and Cobb left in Cobb's car.
At trial, during the charge conference, Defendant asked the trial court to instruct the jury on self-defense as to the charge of possession of a firearm by a felon. Defendant submitted the requested instruction in writing in a document titled " Request for Special Jury Instruction on Duress or Justification." The trial court denied Defendant's request for the special instruction.
Defendant argues on appeal that the trial court erred by failing to instruct the jury on self-defense as to the charge of possession of a firearm by a felon. This Court addressed this argument in State v. Craig, 167 N.C.App. 793, 606 S.E.2d 387 (2005), in which we noted that " [f]ederal courts have recently recognized justification as an affirmative defense to possession of firearms by a felon." Id. at 795, 606 S.E.2d at 389 (citing U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000)).
I. The Deleveaux Test
" [T]he Deleveaux court limited the application of the justification defense to 18 U.S.C. § 922(g)(1) cases (federal statute for possession of a firearm by a felon) in 'only extraordinary circumstances.'" Craig, 167 N.C.App. at 796, 606 S.E.2d at 389 (quoting State v. Napier, 149 N.C.App. 462, 465, 560 S.E.2d 867, 869 (2002)). In Deleveaux, the United States Court of Appeals for the Eleventh Circuit cited three cases from other circuits, U.S. v. Paolello, 951 F.2d 537 (3rd Cir. 1991), U.S. v. Singleton, 902 F.2d 471
(6th Cir. 1990); cert denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990), and U.S. v. Perez, 86 F.3d 735 (7th Cir. 1996), to illustrate that the defense is available only in extraordinary circumstances. Deleveaux, 205 F.3d at 1297.
In Paolello, the United States Court of Appeals for the Third Circuit observed that the " restrictive approach is sound" and required that " the defendant meet a high level of proof to establish the defense of justification." Paolello, 951 F.2d at 542. In Singleton, the United States Court of Appeals for the Sixth Circuit held that " a defense of justification may arise in rare situations" in prosecutions for possession of a firearm by a felon. Singleton, 902 F.2d at 472. The Court observed that, although the language of 18 U.S.C. § 922 " gives no hint of an affirmative defense of justification, Congress enacts criminal statutes 'against a background of Anglo-Saxon common law.'" Id. (quoting U.S. v. Bailey, 444 U.S. 394, 415, 100 S.Ct. 624, 62 L.Ed.2d 575, 594 n.11 (1980)).
" In Bailey, the Supreme Court held that prosecution for escape from a federal prison, despite the statute's absolute language and lack of a mens rea requirement, remained subject to the common law justification defenses of duress and necessity." Singleton, 902 F.2d at 472. " Similarly, the Congressional prohibition of possession of a firearm by a felon does not eliminate the possibility of a defendant being able to justify the possession through duress or necessity." Id.
" Common law historically distinguished between the defenses of duress and necessity." Bailey, 444 U.S. at 409, 62 L.Ed.2d at 590. " Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law." Id. " While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils." Id. at 409-10, 62 L.Ed.2d at 590. " Modern cases have tended to blur the distinction between duress and necessity." Id. at 410, 62 L.Ed.2d at 590.
" [I]f a previously convicted felon is attacked by someone with a gun, the felon should not be found guilty for taking the gun away from the attacker in order to save his life." Singleton, 902 F.2d at 472. The Court held that the " justification defense for possession of a firearm by a felon should be construed very narrowly" and emphasized " that the keystone of the analysis is that the defendant must have no alternative--either before or during the event--to avoid violating the law." Id. at 472-73.
In Perez, the United States Court of Appeals for the Seventh Circuit observed that the " defense of necessity will rarely lie in a felon-in-possession case unless the ex-felon, not being engaged in criminal activity, does nothing more than grab a gun with which he or another is being threatened (the other might be the possessor of the gun, threatening suicide)." Perez, 86 F.3d at 737. The Court held that " the defendant may not resort to criminal activity to protect himself or another if he has a legal means of averting the harm." Id.
Under Deleveaux, " a defendant must show four elements to establish justification as a defense" to the charge of possession of a firearm by a felon:
(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.
Craig, 167 N.C.App. at 796, 606 S.E.2d at 389 (quoting Deleveaux, 205 F.3d at 1297); see also U.S. v. Crittendon, 883 ...