Use of the Justification Defense in a North Carolina Charge of Firearm Possession By a Felon
July 18th, 2019
Contributor: R. Mark Warren
North Carolina law prohibits firearm possession by a person convicted of a felony. While federal courts and many other state courts recognize justification as a defense to this type of gun possession charge, North Carolina courts previously did not recognize availability of the defense. A North Carolina Court of Appeals decision in August 2018 makes it clear that the defense may be available in specific circumstances.
What Is the Justification Defense?
In cases involving a charge of illegal possession of a firearm by a person convicted of a felony, courts outside North Carolina have recognized availability of the justification defense for a number of years. In asserting the defense, a defendant essentially claims that the possession was necessary to defend himself or herself from serious harm or death.
The most common name for the defense is “justification.” Defendants and courts sometimes describe it as duress, coercion, necessity, or self-defense.
When the defense is available in a case, the jury determines whether justification existed, based on the facts produced as evidence during the trial. To enable the jury to make the decision, the trial judge instructs the jury about what constitutes justification.
A leading federal court of appeals case states strict criteria for a defendant to be entitled to a jury instruction about the defense. Federal and state courts across the country use the guidelines in this leading case. These same criteria appear as a footnote in the North Carolina pattern jury instructions for criminal cases.
The criteria, as set out by the leading case of U.S. v. Deleveaux (a case in the United States Court of Appeals for the Eleventh Circuit), state that for a defendant to be entitled to a jury instruction on the justification defense, the defendant must show:
- that the defendant was under unlawful and present, imminent and impending threat of death or serious bodily injury;
- that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct;
- that the defendant had no reasonable legal alternative to violating the law; and
- that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
North Carolina courts discussed these criteria in a number of previous cases, always concluding that the defendant did not meet the requirements for receiving the jury instruction. No North Carolina court ever recognized that a defendant meeting the criteria would be entitled to assert the defense and therefore entitled to the jury instruction — until now.
Recognition of Availability of the Justification Defense in North Carolina
In August 2018, the North Carolina Court of Appeals recognized availability of the justification defense in the case of State v. Mercer. In that case, the Court determined that the trial judge committed prejudicial error by failing to instruct the jury on the justification defense.
The facts of the Mercer case are rather complicated. Following is an abbreviated summary of the evidence presented at trial, as described in the Court of Appeals decision.
A group of 15 people confronted the defendant (a convicted felon) and others at the defendant’s home. Several members of the confrontational group visibly carried guns. The defendant said that at least one person shot at him. At that point, the defendant took possession of a gun from a member of his own group. He fired a single shot over the heads of the confrontational group and returned the gun to its owner.
According to the Court’s opinion, the situation leading up to the defendant firing the shot indicated that he felt an imminent thread of death or seriously bodily injury at the time. The decision detailed the evidence presented at trial relating to the justification defense and the criteria in the Deleveaux case.
At the trial, the defendant’s attorney asked the judge to instruct the jury on the justification defense. The trial judge refused to give the instruction.
During deliberations, the jury sent a note to the judge asking if possession of a firearm by a felon could ever be justified. The judge declined to answer the question directly. Instead, he referred the jury to the instructions on reasonable doubt and the offense of possession of a firearm by a felon.
The Court of Appeals reviewed the criteria in the Deleveaux case in light of the evidence produced in Mercer’s trial. The Court did not conclude that possession of the firearm was justified. However, the decision stated that based on the evidence presented at trial, the defendant was entitled to a jury instruction on the justification defense. The trial judge’s refusal to provide the jury instruction constituted reversible error. The Court of Appeals granted a new trial.
Under the Mercer decision, it is now clear that the justification defense may be available to a North Carolina defendant facing a state charge of gun possession by a felon. If the defendant produces evidence meeting the Deleveaux criteria, the trial judge must instruct the jury on the justification defense. Whether justification existed will be for the jury to determine.
Talk With an Experienced North Carolina Criminal Defense Lawyer
At The Twiford Law Firm, we represent individuals in criminal matters in both state and federal courts. Regardless of what type of charge you face, we aggressively represent you and assert all available defenses.
With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.
Categories: Criminal Defense