justification defense in North Carolina

2022From 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.

2022From 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.

2022SWINDELL 2022-NCSC-113 Opinion of the Court 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.

2022SWINDELL 2022-NCSC-113 Opinion of the Court 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.

2022However, 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.

2022However, 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.

2021SWINDELL 2021-NCCOA-408 Opinion of the Court 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.

2021SWINDELL 2021-NCCOA-408 Opinion of the Court 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.

2021Id. at 465 , 560 S.E.2d at 869 ; see also State v. Boston, 165 N.C.

2021Id. at 465 , 560 S.E.2d at 869 ; see also State v. Boston, 165 N.C.

1994“The justification for this exception is that the defendant’s right of confrontation is adequately protected by the opportunity to cross-examine afforded at the initial proceeding.” State v. Graham, 303 N.C. 521, 523 , 279 S.E.2d 588, 590 (1981).

1994“The justification for this exception is that the defendant’s right of confrontation is adequately protected by the opportunity to cross-examine afforded at the initial proceeding.” State v. Graham, 303 N.C. 521, 523 , 279 S.E.2d 588, 590 (1981).

2021See State v. Mercer, 260 N.C.

2021See State v. Mercer, 260 N.C.

2020See, 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).

2020See, 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).

2020The 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).

2020The 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).

2020It 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).

2020It 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).

2020See, 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).

2020See, 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).

2020“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).

2020“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).

2021Ct. 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.

2021App. 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.

2026See Farb, Tyner, & Welty, Arrest, Search, and Investigation in North Carolina. 267 n. 293 (6th ed. 2021) (asserting mobility “hardly has much force when the Court permits a warrantless search even after a vehicle and its contents have been immobilized”); see also Michigan v. Thomas, 458 U.S. 259, 261 , 73 L.

2026See Farb, Tyner, & Welty, Arrest, Search, and Investigation in North Carolina. 267 n. 293 (6th ed. 2021) (asserting mobility “hardly has much force when the Court permits a warrantless search even after a vehicle and its contents have been immobilized”); see also Michigan v. Thomas, 458 U.S. 259, 261 , 73 L.

2016The justification for this rule is a concern by courts that a second confession is so influenced by the first involuntary confession as to "deprive the defendant of his free will during subsequent confessions." Id. at 579 , 422 S.E.2d at 738 (citation omitted).

2016The justification for this rule is a concern by courts that a second confession is so influenced by the first involuntary confession as to "deprive the defendant of his free will during subsequent confessions." Id. at 579 , 422 S.E.2d at 738 (citation omitted).

2015See Johnson , --- N.C.App. at ----, 749 S.E.2d at 109 ("Defendant rebutted plaintiff's [ prima facie ] case [for wrongful discharge in violation of North Carolina public policy] by producing evidence of a legitimate, nondiscriminatory reason for plaintiff's dismissal[.]"). 3.

2014Therefore, I respectfully dissent. 2 See State v. Bush, 307 N.C. 152, 160 , 297 S.E.2d 563, 569 (1982) (“A defendant is entitled to an instruction on self- defense if there is any evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm.”). -12-

2014Therefore, I respectfully dissent. 2 See State v. Bush, 307 N.C. 152, 160 , 297 S.E.2d 563, 569 (1982) (“A defendant is entitled to an instruction on self- defense if there is any evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm.”). -12-

2003“It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a law when that reason utterly fails.” Patton v. United States, 281 U.S. 276, 306 , 74 L.

2003“It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a law when that reason utterly fails.” Patton v. United States, 281 U.S. 276, 306 , 74 L.

2002See U.S. v. Grittendon, 883 F.2d 326 (4th Cir. 1989).

2002See U.S. v. Grittendon, 883 F.2d 326 (4th Cir. 1989).

1989As our Supreme Court stated in Blades v. City of Raleigh, [t]he whole concept of zoning implies a restriction upon the owner’s right to use a specific tract for a use profitable to him *113 but detrimental to the value of other properties in the area, thus promoting the most appropriate use of land throughout the municipality, considered as a whole. 280 N.C. 531, 546 , 187 S.E.2d 35, 43 (1972).

1989As our Supreme Court stated in Blades v. City of Raleigh, [t]he whole concept of zoning implies a restriction upon the owner’s right to use a specific tract for a use profitable to him *113 but detrimental to the value of other properties in the area, thus promoting the most appropriate use of land throughout the municipality, considered as a whole. 280 N.C. 531, 546 , 187 S.E.2d 35, 43 (1972).

1985In State v. Smith, 291 N.C. at 524 , 231 S.E. 2d at 675 , Justice Huskins, writing for the Court, established the three-pronged test which must be met prior to the admission of the prior recorded *65 testimony of a witness at a subsequent trial as follows: “(1) The witness is unavailable; (2) the proceedings at which the testimony was given was [sic] a former trial of the same cause, or a preliminary stage of the same cause, or the trial of another cause involving the issue and subject matter at which the testimony is directed; and (3) the current defendants were present at that time and repre

1985In State v. Smith, 291 N.C. at 524 , 231 S.E. 2d at 675 , Justice Huskins, writing for the Court, established the three-pronged test which must be met prior to the admission of the prior recorded *65 testimony of a witness at a subsequent trial as follows: “(1) The witness is unavailable; (2) the proceedings at which the testimony was given was [sic] a former trial of the same cause, or a preliminary stage of the same cause, or the trial of another cause involving the issue and subject matter at which the testimony is directed; and (3) the current defendants were present at that time and repre