Opinion
No. COA11–1365.
2012-05-15
STATE of North Carolina v. Robert Marshall PONDER, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant.
Appeal by defendant from judgment entered 19 July 2011 by Judge Laura J. Bridges in Rutherford County Superior Court. Heard in the Court of Appeals 1 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant.
STEELMAN, Judge.
Where there was a time period in which the defendant, a convicted felon, was under no threat while possessing a firearm, the trial court did not err in refusing to instruct the jury on the defenses of duress, compulsion, and necessity.
I. Factual and Procedural Background
On 28 July 2010, Robert Marshall Ponder (“defendant”) shot Kevin Calhoun with a .22 rifle. Defendant was subsequently indicted for possession of a firearm by a felon and for being an habitual felon. On 19 July 2011, a jury found defendant guilty of possession of a firearm by a felon and of being an habitual felon. Defendant was sentenced to 145–185 months imprisonment.
Defendant appeals.
II. Denial of Request for Instruction on Defense of Duress, Compulsion, or Necessity
In his only argument on appeal, defendant contends that the trial court erred in denying defendant's written request for an instruction on the defense of duress, compulsion, or necessity. We disagree.
With regard to requests for jury instructions, this Court has held:
In North Carolina, requests for special jury instructions are allowable pursuant to G.S. §§ 1–181 and 1A–1, Rule 51(b). 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. However, the trial court may exercise discretion to refuse instructions based on erroneous statements of the law.
State v. Napier, 149 N.C.App. 462, 463–64, 560 S.E.2d 867, 868–69 (2002) (citations omitted) (internal quotation marks omitted) (alteration in original). Federal courts have adopted a defense of duress or necessity to the federal offense of being a convicted felon in possession of a firearm, which has also been called a defense of justification. U.S. v. Deleveaux, 205 F.3d 1292, 1295–97 (11th Cir.2000).
The appellate courts of North Carolina have never recognized duress, compulsion, necessity, or justification as defenses against the offense of possession of a firearm by a felon. When presented with these defenses, we have concluded that, assuming they do apply in this state, the facts of the case would not support an instruction. See, e.g., State v. McNeil, 196 N.C.App. 394, 405–07, 674 S.E.2d 813, 820–21 (2009). Without deciding whether these defenses are applicable to the charge of possession of a firearm by a felon, we held in State v. Craig that the defendant was not entitled to an instruction because there was a “time period where [the d]efendant was under no imminent threat while possessing the gun.” 167 N.C.App. 793, 797, 606 S.E.2d 287, 389 (2005).
When viewed in the light most favorable to defendant, the evidence presented at trial tends to show the following. Defendant was playing cards with Calhoun, among others, at the residence of Matt Manis. Calhoun became upset with defendant because defendant was beating him. Calhoun punched defendant, so defendant collected his money and went home.
An individual at Manis's residence, “Amanda,” telephoned defendant. Speaking to Amanda over the phone, defendant said he and Calhoun should meet up and settle their dispute. Calhoun overheard this statement over the phone's speaker. Defendant went next door to his grandmother's house, woke up his brother, got a rifle, and told his brother that there was going to be a fight.
Shortly thereafter, Calhoun, Manis, and several other persons arrived in two vehicles. They parked at a convenience store parking lot across from defendant's home. When they arrived, defendant was standing in the field behind his house. Calhoun and defendant were “hollering back and forth.” Defendant warned Calhoun not to come towards him. Calhoun disregarded the warning and ran into the field towards defendant while holding a knife. Defendant shot Calhoun, who was injured but not fatally wounded.
Defendant was not under an imminent threat when he acquired the gun. Calhoun and his entourage were not waiting for him outside of his grandmother's house. Defendant chose to leave the residence and stand in the field, waiting to confront Calhoun. Defendant could have telephoned the police before obtaining the weapon. Thus, there was a “time period where [d]efendant was under no imminent threat while possessing the gun.” Craig, 167 N.C.App. at 797, 606 S.E .2d at 389. Without deciding whether the asserted defenses apply to the crime of possession of a firearm by a felon, we hold that defendant was not entitled to an instruction on these defenses under the specific facts of this case.
This argument is without merit. Accordingly, we hold that defendant received a fair trial, free from error.
NO ERROR. Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).