STATE OF NORTH CAROLINA v. QUACEY JAMAR MCFADDEN

On 2 December 2013, defendant was indicted for possession of a firearm by a

felon in violation of N.C. Gen. Stat. § 14-415.1.

Defendant’s trial commenced at the 11 November 2014 criminal session of

Mecklenburg County Superior Court, the Honorable Richard Doughton, presiding.

Defendant was convicted of the felony of assault with a deadly weapon

inflicting serious injury in violation of N.C. Gen. Stat. § 14-32(a) in July 2008. The

evidence at trial tended to show that on the morning of 17 November 2013, defendant

was in the parking lot of a gas station and convenience store located at 6065 Clanton

Road in Charlotte, North Carolina. Surveillance video captured from the scene

demonstrated that a man named “Mr. Alvarez” approached defendant and attacked

defendant. Carl Albanese (“Albanese”), with the Charlotte-Mecklenburg Police

Department (“CMPD”), testified that from the video footage, Mr. Alvarez “was clearly

there for [defendant].” Albanese testified that the scene “[l]ooked like a drug deal

gone wrong[.]”

Defendant testified that he did not have a gun in his possession when he

arrived at the gas station. However, Mr. Alvarez had a gun in his possession when

he approached and attacked defendant. Defendant testified that “the tussle for the

firearm began inside of my vehicle. He struck me inside of my vehicle. He proceeded

to fight us for the firearm outside of my vehicle when he struck me again. That is

when I grabbed him and defended myself.” Defendant believed he was threatened

and that there was a risk of serious bodily injury or death. Defendant testified that

it was a “do-or-die situation” and that he was attempting to “get away from it there

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at the gas pump, and I shot him with it -- his own firearm.” Thereafter, Mr. Alvarez

moved away from defendant and defendant entered the convenience store. Defendant

informed the clerk “that I had just been a victim of an attempted armed robbery and

for them to call the police to let them know that this situation just took place.”

Defendant exited the convenience store and observed Mr. Alvarez leaving the scene.

Subsequently, defendant left the scene in his vehicle with Mr. Alvarez’s gun in his

possession. As he was driving down Independence Boulevard “towards the Bojangles

Arena, I tossed it out of the car.”

Christopher Hall (“Hall”), with the CMPD, responded to a call that a shooting

had taken place at a gas station and convenience store located at 6065 Clanton Road

in Charlotte, North Carolina. After arriving on the scene, Hall observed a tennis shoe

that “had been knocked over[,]” “a couple of droplets of blood on the ground,” and a

spent shell casing on the ground.

Eric Herron (“Herron”), an officer with the CMPD, testified that he served a

warrant on defendant on 18 November 2013. Heron drove defendant out to

Independence Boulevard, “looking for a gun that had been thrown out of the

vehicle[.]” The gun was not found.

Albanese testified that he assisted in serving a warrant on defendant at

defendant’s residence. Defendant’s mother was also at defendant’s residence.

Albanese observed a vehicle in the rear of the residence and defendant’s mother gave

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consent to search the vehicle. Inside the vehicle, Albanese observed “[b]lood drops,

the door well when we opened it. Dry blood around the door frame.”

Defense counsel requested a special jury instruction on justification as a

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

request for this special instruction.

On 14 November 2014, a jury found defendant guilty of possession of a firearm

by a felon. Defendant was sentenced at a prior record level III to 17 to 30 months

imprisonment. Defendant appeals.

II. Standard of Review

In North Carolina, requests for special jury instructions are allowable under N.C.G.S. § 1-181 and 1A1, Rule 51(b) of the North Carolina General Statutes. It is well settled that the trial court must give the instructions requested, at least in substance, if they are proper and supported by the evidence. The proffered instruction must . . . contain a correct legal request and be pertinent to the evidence and the issues of the case.

State v. Edwards, __ N.C. App. __, __, 768 S.E.2d 619, 620 (2015) (citations and

quotation marks omitted).

III. Discussion

Defendant’s sole argument on appeal is that the trial court erred by denying

his request for a special jury instruction on justification as a defense to the charge of

possession of a firearm by a felon.

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The North Carolina courts “have not recognized justification as a defense to a

charge of possession of a firearm by a felon.” State v. Napier, 149 N.C. App. 462, 464,

560 S.E.2d 867, 869 (2002). Nonetheless, defendant requests that we review his case

under the factors set out in United States v. Deleveaux, 205 F.3d 1292 (11th Cir.), cert

denied, 530 U.S. 1264, 147 L. Ed. 2d 988 (2000), for determining the applicability of

the justification defense to possession of a firearm by a felon. The Deleveaux court

set out four factors that must be shown:

(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 1297. However, the Deleveaux court specifically limited this defense to 18

U.S.C. § 922(g)(1) (the federal statute for possession of a firearm by a felon) cases in

“only extraordinary circumstances.” Id.

Without deciding whether the justification defense was available in North

Carolina, in State v. Napier, 149 N.C. App. 462, 560 S.E.2d 867 (2002), our Court held

that the evidence did not support a conclusion that the defendant was entitled to a

justification instruction. Id. at 465, 560 S.E.2d at 869. In Napier, the defendant was

involved in an on-going feud with his neighbor and neighbor’s son. Id. at 462, 560

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S.E.2d at 868. The neighbor’s son continued to shoot a shotgun in the air over the

defendant’s property for a span of a few days. Id. at 462-63, 560 S.E.2d at 868. The

defendant, with a 9 millimeter handgun attached to his hip, walked over to his

neighbor’s house and an altercation ensued. Id. at 463, 560 S.E.2d at 868. Police

were called to the scene. Id. After officers restored order and left the scene, the

defendant fired a gun and hit the neighbor in the arm. Id. Our Court held that the

evidence demonstrated that the defendant “while armed, voluntarily walked across

the street and onto [the neighbor’s] premises; defendant asked [the neighbor and

neighbor’s son] if they wanted him to take the gun home; and defendant, while armed,

stayed on [the neighbor’s premises] for several hours talking to [the neighbor] before

the fight ensued.” Id. at 465, 560 S.E.2d at 869. Accordingly, our Court held that the

evidence did not support a conclusion that the defendant was under a present or

imminent threat of death or injury. Id.

In addition, without ruling on the availability of the defense of justification in

North Carolina, our Court held in State v. Craig, 167 N.C. App. 793, 606 S.E.2d 387

(2005), that the evidence did not support giving a special instruction on justification.

In Craig, the defendant was involved in an altercation at an auto garage where he

fired a pistol. Id. at 794, 606 S.E.2d at 388. After leaving the scene of the altercation,

the defendant kept the gun and took it with him to a friend’s house. Id. at 796-97,

606 S.E.2d at 389. Our Court held that the evidence did not support a special

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instruction on justification “because there was a time period where Defendant was

under no imminent threat while possessing the gun.” Id. at 797, 606 S.E.2d at 389.

In State v. McNeil, 196 N.C. App. 394, 674 S.E.2d 813 (2009), our Court held

that, as in Napier and Craig, the evidence did not support giving a special instruction

on justification. Id. at 406-407, 674 S.E.2d at 821. In McNeil, the evidence tended to

show that the defendant exited his house and approached the victim outside. The

two parties got into an oral argument. Id. at 396-97, 674 S.E.2d at 815. The

defendant then walked into his house, and returned, carrying a shotgun. Id. at 397,

674 S.E.2d at 815. The defendant approached the victim and shot him. Thereafter,

the defendant walked back toward his house, then turned and walked into the street,

stood over the victim, and shot the victim a second time. Id. at 397, 674 S.E.2d at

815-16. The defendant then walked toward his house again, got into his vehicle, and

left the scene. Id. at 397, 674 S.E.2d at 816. The defendant testified that he was

afraid of the victim and believed that the victim had a weapon. Our Court held that

because the evidence indicated that the defendant possessed the shotgun inside his

home and away from the victim “at which time there was no imminent threat of death

or serious bodily injury,” the evidence did not support an instruction on justification.

Id. at 406-407, 674 S.E.2d at 821.

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Defendant argues that unlike the circumstances found in Craig and McNeil,

defendant “remained under the threat of death or serious bodily injury for some

period of time after [Mr.] Alvarez left the convenience store parking lot.” We disagree.

Assuming, without deciding, that for purposes of defendant’s appeal that the

justification defense to possession of a firearm by a felon is available in North

Carolina and that the Deleveaux rationale applies, the evidence in the present case

demonstrates that there was a time period where defendant was under no present or

imminent threat of death or injury while in possession of the gun. Once defendant

had taken possession of the gun, he observed Mr. Alvarez leave the gas station,

driving away in his vehicle. At this point, defendant was no longer under imminent

threat but still maintained possession of the gun. Furthermore, defendant left the

scene in his vehicle with the gun in his possession. As such, we hold that the trial

court did not err by denying defendant’s request for a special jury instruction on

justification.