State v. Johnson

majority opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-1000

Filed 16 September 2026

Wake County, Nos. 22CR336508-910, 22CR337107-910

STATE OF NORTH CAROLINA

STANLEY LEMONT JOHNSON

Appeal by defendant from judgment entered 28 April 2025 by Judge Paul C.

Ridgeway in Wake County Superior Court. Heard in the Court of Appeals

20 May 2026.

Attorney General Jeff Jackson, by Solicitor General Nicholas S. Brod, for the

State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L.

VandenBerg, for defendant.

ARROWOOD, Judge.

Following a jury trial in Wake County Superior Court, Stanley Lemont

Johnson (“defendant”) was found guilty of possession of a firearm by a felon, not guilty

of first-degree murder with malice, premeditation, and deliberation, and guilty of

first-degree felony murder, with the firearm charge as the predicate felony. The trial

court arrested judgment on the firearm charge but entered judgment for murder and

sentenced defendant to life without parole. Defendant appeals from the judgment.

I. Background

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A. Statement of Facts

In November 2022, defendant lived with his girlfriend, Tinisha Ratliff (“Ms.

Ratliff”) in a rooming house on Bragg Street in Raleigh. Defendant was 44-years-old

and has moderate intellectual disabilities, unable to read or write well. Defendant

has a lengthy criminal record, including felonies, and is therefore forbidden from

possessing any firearm.

Ms. Ratliff testified that they had been in an “off-and-on relationship” for two

years, and that defendant was “mentally, physically, emotionally” abusive. In

October 2022, Ms. Ratliff contacted police after defendant assaulted her and left her

with injuries. Jermiller Kernny (“Ms. Kernny”), Ms. Ratliff’s cousin, was aware of

the ongoing abuse, including the recent incident, and had previously confronted

defendant about his behavior. Ms. Kernny’s mother lived across from the Bragg

Street address. At about 4:00 a.m. on 4 November 2022, defendant’s sister picked

him up from Bragg Street so he could stay with family.

Late on 5 November 2022, or in the early morning hours of 6 November, Ms.

Ratliff and defendant had an altercation, the details of which were disputed at trial.

Ms. Ratliff testified that she returned to the rooming house to find her door

open, whereupon defendant appeared and “aggressively” asked to speak to her. She

stated that over the next 25 to 45 minutes the conversation escalated to shouting; Ms.

Ratliff claimed that defendant pointed a gun to her head. Ms. Kernny arrived and

attempted to intervene; as defendant left the house Ms. Kernny punched him in the

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back of the head and pushed him down, telling him to leave “before something else

happen[s]” to him. When Ms. Kernny pushed defendant onto his back, a gun fell out

of defendant’s pocket and into the street. Defendant grabbed the gun as he stood up

and shot Ms. Kernny.

The State introduced a video of the shooting from a neighboring house’s

security camera. It captures the sound of yelling and scuffling, which is obstructed

from the camera’s view by a tree. The video shows defendant dodge a blow by Ms.

Kernny as they circle each other, with defendant stumbling, and Ms. Kernny standing

still for several seconds before defendant shoots her from a few feet away. In

November 2022, defendant weighed 145 pounds. Ms. Kernny, who was 5’7” and 300

pounds, died from a single gunshot wound to her upper right chest. A toxicology

screen indicated there was alcohol and cocaine in her system.

In his testimony, defendant admitted that he was not supposed to have a gun

but claims he needed to protect himself because his environment is “violent.”

Defendant denied having been physically abusive towards Ms. Ratliff. As to his

mental state when he shot Ms. Kernny, he testified, “I didn’t want to pull the trigger,

but I did. It was just a spur-of-the-moment thing . . . [M]y mind was racing, and I

just – I reacted.”

The State called Iworthia Harris (“Ms. Harris”), who describes herself as Ms.

Kernny’s “godsister,” to testify in its rebuttal evidence. She described defendant’s

relationship with Ms. Ratliff as “volatile” with “a lot of physical abuse that [she]

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witnessed firsthand” including a violent altercation on the day before the shooting,

which left Ms. Ratliff with a black eye. On the night of the shooting, Ms. Harris was

at the Kernny home for a party, which ended by 1:15 a.m., when Ms. Ratliff knocked

on the door and told her and Ms. Kernny, “He said that tonight is the night that he’s

going to kill me. He has a gun. I really feel like he’s going to kill me. Please, please

help me.” Ms. Kernny replied that she was tired of sticking up for Ms. Ratliff because

she always returned to defendant, but agreed to cross the street after finishing her

video game, to help her get some clothes so she could spend the night. Ms. Harris

stated that during the altercation, she saw defendant stumble backwards, catch his

balance, raise his arm, fire his gun, and run away. She testified that Ms. Kernny had

not posed “any imminent danger” to defendant, who was “the aggressor from the

beginning.”

B. Indictments

Defendant’s indictment for murder charged that he “unlawfully, willfully, and

feloniously did of malice aforethought kill and murder Jermiller Kernny.” The

indictment for possession of a firearm by a felon charged that defendant “unlawfully,

willfully, and feloniously did possess and have in the defendant’s control a semiautomatic pistol, which is a firearm[,]” and that defendant was previously found

guilty of a felony (Obtaining Property by False Pretense) on 24 November 2020.

C. Charge Conference

At the charge conference, the trial court informed the parties that it would

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instruct the jury on first-degree murder based on premeditation and deliberation,

with self-defense and diminished capacity; second-degree murder, with self-defense;

voluntary manslaughter, with imperfect self-defense and provocation; and possession

of a firearm by a felon. The trial court also informed the parties of its intent to sua

sponte instruct the jury on felony murder, with possession of a firearm by a felon as

the underlying predicate offense.

The defense objected, arguing that our courts have never approved such a

charge and that the possession offense is not encompassed by the felony murder

statute. The defense also filed its objection in writing. The defense twice renewed its

objections to the court’s instructions and further objected to the felony murder charge

on due process grounds. The defense also filed an alternative request for two

instructions if the court did instruct on felony murder: (1) to define the underlying

felony offense as “possession of a firearm by a convicted felon while using the firearm

to threaten or assault someone other than the decedent”; and (2) to instruct on selfdefense to felony murder based on State v. McLymore, 380 N.C. 185 (2022). The trial

court denied both requests.

D. Jury Instructions and Verdict

Ultimately, the jury heard instructions on first-degree murder by malice,

premeditation, and deliberation, with self-defense and diminished capacity; firstdegree murder by felony murder using possession of a firearm by a felon as the

underlying felony, without self-defense or diminished capacity; second-degree

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murder, with self-defense; voluntary manslaughter by imperfect self-defense and by

provocation; and possession of a firearm by a felon. The court’s instruction for felony

murder read as follows:

First, that the defendant committed the offense of

possession of a firearm by a convicted felon. The felony

offense of possession of a firearm by a convicted felon

requires, first, that on November 24, 2020, [describes

details of Mr. Johnson’s obtaining property felony]; and

second, that after November 24, 2020, the defendant

possessed a firearm. Second, that while committing the

offense of possession of a firearm by a convicted felon and

with the use of said firearm, the defendant killed the

victim. And third, that the defendant’s act was a proximate

cause of the victim’s death. A proximate cause is a real

cause, a cause without which the victim’s death would not

have occurred.

The jury acquitted defendant of first-degree murder on the basis of malice,

premeditation, and deliberation. The jury found defendant guilty of possession of a

firearm by a felon and felony murder with possession of a firearm as the underlying

offense. The court entered judgment for felony murder, arrested judgment on the

possession offense, and sentenced defendant to life without parole. Defendant filed

written notice of appeal on 29 April 2025.

II. Discussion

Defendant first contends that possession of a firearm by a felon should be

categorically excluded as a felony underlying felony murder, based upon the plain

language, purpose, and legislative history of North Carolina’s felony murder statute,

as well as additional principles of statutory construction. Defendant contends that

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the court’s charge and jury instructions on felony murder violated his right to due

process. Defendant requests vacatur of his conviction and that his case be remanded

for a new trial.

Defendant properly preserved the above issues for appellate review by

objecting in open court and doing the same in writing. For the following reasons, we

reject defendant’s argument that the offense is categorically excluded from the

statute. However, we vacate defendant’s conviction on due process grounds and

remand his case for a new trial.

A. The Felony Murder Statute Does Not Categorically Exclude Possession of a

Firearm by a Felon as an Unenumerated Underlying Felony

The State did not expressly charge defendant with felony murder according to

the court’s theory in either its indictment or prosecute under a felony murder theory

in its case-in-chief. Moreover, possession of a firearm by a felon has never underlain

a felony murder conviction in North Carolina.

Accordingly, the trial court’s sua sponte decision to instruct the jury on this

novel and unprecedented interpretation of the felony murder statute, under which a

self-defense justification is inapplicable, raises an issue of first impression in North

Carolina. We begin by considering whether the statute permits this theory of felony

murder or categorically forecloses such convictions. We review questions of statutory

interpretation de novo. State v. Adams, 285 N.C. App. 379, 393 (2022) (citing State

v. Skipper, 214 N.C. App. 556, 557 (2011)).

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It is a felony for any convicted felon to “purchase, own, possess, or have” a gun.

N.C.G.S. § 14-415.1(a). “ ‘The offense of possession of a firearm by a convicted felon

has two essential elements: (1) the defendant has been convicted of a felony, and (2)

the defendant subsequently possessed a firearm.’ ” State v. Mercer, 373 N.C. 459, 462

(2020) (quoting State v. Floyd, 369 N.C. 329, 333 (2016)). Defendant admitted both

elements at trial pursuant to his defense to first-degree murder. The jury found him

guilty on this charge.

Felony murder is defined in the relevant statute as a murder which was:

committed in the perpetration or attempted perpetration of

any arson, rape or a sex offense, robbery, kidnapping,

burglary, or other felony committed or attempted with the

use of a deadly weapon.

N.C.G.S. § 14-17(a). Underlying felonies not expressly included must fall under the

catch-all: “or other felony committed or attempted with the use of a deadly weapon.”

To interpret an individual statutory provision, “we look first to the language of

the statute itself.” Walker v. Bd. of Trs. of N.C. Loc. Gov’tal Emps. Ret. Sys., 348 N.C.

63, 65 (1998) (quoting Hieb v. Lowery, 344 N.C. 403, 409 (1996)). If statutory

language is unambiguous, we read it in accordance with its plain meaning. State v.

Steen, 376 N.C. 469, 480 (2020) (citation omitted). Where the language is ambiguous

or without a clear meaning, “legislative intent controls the interpretation of a

criminal statute.” State v. Jones, 358 N.C. 473, 478 (2004) (citing State v. Hearst, 356

N.C. 132, 136–37 (2002)). To interpret ambiguous statutes, we use “judicial

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construction” to “ascertain the legislative will” and carry it out “to the fullest extent.”

Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209 (1990) (citations omitted).

The North Carolina Supreme Court has already held that this statute’s

language is clear and unambiguous. See State v. Wall, 304 N.C. 609, 614 (1982). That

holding controls and the statute’s plain meaning is straightforward, setting forth two

categories. The first encompasses murders committed as the defendant perpetrates

or attempts any of the enumerated felonies. Id. The second encompasses murders

occurring during the commission or attempt of an unspecified felony in which the

defendant uses a deadly weapon. Id. The question here is whether the second

category encompasses possession of a firearm by a felon among the unspecified

“other” felonies perpetrated with the “use of a deadly weapon.” But the fit between

this offense and this category is neither obvious nor intuitive. The language plainly

envisions a defendant who first possesses some deadly weapon and then uses it to

bring about some “other felony.”1

1 Felonious child abuse may underlie a felony murder charge where “the killing took place while the

accused was perpetrating or attempting to perpetrate felonious child abuse with the use of a deadly weapon.” State v. Pierce, 346 N.C. 471, 493 (1997) (citing N.C.G.S. § 14-17). Indeed, a defendant who, as a convicted felon, illegally possesses a firearm and is therefore already guilty of a first felony, properly faces a felony murder charge where he commits some second unenumerated felony, such as the sale of cocaine, if (1) he brings a deadly weapon to the sale and (2) during the transaction, someone is killed, either by the illegally-possessed firearm, another deadly weapon, or through some other means. See, e.g., State v. Squires, 357 N.C. 529, 534–36 (2003); State v. Freeman, 202 N.C. App. 740, 743–44 (2010). Further, if a victim dies because the felon used some other deadly weapon, such as a utility knife, to take felonious possession of his victim’s firearm, the felon is guilty of felony murder under the statute’s first category, with robbery as the underlying felony, as well as possession of a firearm by a felon.

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Here, it is undisputed that defendant committed a felony by possessing the

firearm as a felon. It is also undisputed that defendant used that deadly weapon to

shoot Ms. Kernny. However, defendant did not use the firearm in furtherance of any

other felony that could serve as a predicate; apart from the first-degree premeditated

murder charge, defendant was not charged with any felony as to the use of the

firearm. Nor did defendant use the firearm in furtherance of his felonious possession

of the firearm.2

However, we cannot agree with defendant that the felony murder statute

categorically excludes this possession offense from its “catch-all” category. It may

feasibly underlie a felony murder charge, but only under a highly specific, unusual,

and narrow set of facts.

For example, imagine the following hypothetical scenario: Mr. A, a convicted

felon, illegally possesses a firearm. Mr. B sneaks up behind Mr. A to take the firearm.

Mr. A and Mr. B begin to scuffle, and Mr. A manages to pull the trigger and shoot

Mr. B, in order to re-establish felonious possession of the firearm. Mr. B later dies

from his wounds. Under such a set of facts, it may be legally sound to consider the

possession offense the proper underlying felony. Absent other felonious objectives,

2 Unlawful use of the firearm is not an element of possession of a firearm by a felon; that crime is

complete when the defendant possesses the firearm. See Mercer, 373 N.C. at 462; N.C.G.S. § 14-415.1(a).

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Mr. A’s use of the deadly weapon was in furtherance of his felonious possession of the

firearm, since he killed Mr. B while taking back the gun.

As noted above, there is no analogous precedent in North Carolina. However,

the hypothetical represents a plausible set of facts which may fit within the statutory

requirements. So long as the facts show some unbroken chain of events between the

murder and the defendant’s commission or attempt to commit some felony not

specifically named in the statute, with the actual use of a deadly weapon, that felony

can properly underlie a felony murder charge, and is encompassed by the statute’s

“other felony” catch-all category. This is so regardless of whether the felony typically

requires the use of a deadly weapon. State v. Freeman, 202 N.C. App. 740, 743 (2010),

disc. rev. improvidently allowed, 365 N.C. 4 (2011). It is so regardless of whether the

felony is inherently dangerous. State v. Davis, 305 N.C. 400, 423 (1982). And it is so

even if the deadly weapon is not physically used in the felony’s commission. State v.

Fields, 315 N.C. 191, 199 (1985) (“If the defendant has brought the weapon along, he

has at least a psychological use for it: it may bolster his confidence, steel his nerve,

allay fears of his apprehension.”).

Even where a defendant’s knowingly felonious possession of a firearm is

uninterrupted throughout a sequence of events including a killing, his mere

possession of that weapon cannot properly underlie a felony murder charge unless

there is some other interrelated felony in which he uses the firearm. However, the

charge may proceed where the State introduces sufficient evidence that the killing

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occurred where the defendant used a deadly weapon to establish or assume felonious

possession of his firearm and the elements of robbery are not met, as when, for

example, the victim was attempting to interrupt his felonious possession. Under the

statute’s plain meaning, such a charge may arise out of this type of evidence, but

whether the State can prove felony murder under this particular theory is a question

for the jury. Nevertheless, the controlling case law requires us to reject defendant’s

categorical argument.

B. The Jury Charge Violated Defendant’s Constitutional Right to Due Process

Although we have concluded that possession of a firearm by a felon is not

categorically excluded as a predicate for felony murder, the trial court’s failure to put

defendant on notice prior to the charge conference violated defendant’s right to due

process.

A criminal defendant’s right to due process in state court is ensured by both

the United States and North Carolina Constitutions. See U.S. Const. Amends. V,

XIV; N.C. Const. Art. I, § 19. “In all criminal prosecutions the accused must be

informed of the nature and cause of the accusation against him” and there can be no

“due process of law where the accused is not thus informed.” State v. Hunt, 357 N.C.

257, 271 (2003) (quoting Hodgson v. Vermont, 168 U.S. 262, 272 (1897)). The notice

must “acquaint him with the essential particulars of the offen[s]e, so that he may

appear in court prepared to meet every feature of the accusation against him.” Id. A

criminal defendant must be “allowed a reasonable time and opportunity to

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investigate and produce competent evidence, if he can, in defense of the crime with

which he stands charged and to confront his accusers with other testimony.” State v.

Baldwin, 276 N.C. 690, 698 (1970) (citations omitted).

For these reasons, “[t]he purpose of a bill of indictment is to put a defendant

on such notice that he is reasonably certain of the crime of which he is accused.” State

v. McGriff, 151 N.C. App. 631, 634 (2002) (citation omitted). An indictment must

assert “facts supporting every element of a criminal offense and the defendant’s

commission thereof with sufficient precision clearly to apprise the defendant or

defendants of the conduct which is subject of the accusation.” N.C.G.S. § 15A924(a)(5). The elements must be alleged such that the indictment “(1) identifies the

offense; (2) protects against double jeopardy; (3) enables the defendant to prepare for

trial; and (4) supports a judgment on conviction.” State v. Thomas, 153 N.C. App.

326, 335 (2002) (citation omitted).

Crucially, “[i]t is a rule of universal observance in the administration of

criminal law that a defendant must be convicted, if convicted at all, of the particular

offense charged in the bill of indictment.” State v. Jackson, 218 N.C. 373, 376 (1940).

“The failure of the allegations to conform to the equivalent material aspects of the

jury charge represents a fatal variance, and renders the indictment insufficient to

support that resulting conviction.” State v. Williams, 318 N.C. 624, 631 (1986)

(citation omitted). Further, “where the indictment for a crime alleges a theory of the

crime, the State is held to proof of that theory and the jury is only allowed to convict

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on that theory.” State v. Shearin, 170 N.C. App. 222, 231 (2005) (quotes and citation

omitted).

Bills of indictment may not be amended. N.C.G.S. § 15A-923(e). This provision

forbids changes substantially altering the charge the indictment sets forth. State v.

Reavis, 287 N.C. App. 322 (2022). To determine whether substantial alteration

occurred, the court must consider the multiple purposes served by indictments, the

primary one being to enable the accused to prepare for trial. State v. Silas, 360 N.C.

377, 379–80 (2006). “A change in an indictment does not constitute an amendment

where the variance was inadvertent and defendant was neither misled nor surprised

as to the nature of the charges.” State v. Hill, 185 N.C. App. 216, 224 (Tyson, J.,

dissenting), writ allowed, 361 N.C. 699 (2007), rev’d, 362 N.C. 169 (2008). Therefore,

whether defendant here received due process turns on whether the sua sponte jury

charge on felony murder substantially altered his bill of indictment, such that

defendant was either “misled” or “surprised” by the revised charge.

1. Defendant’s Indictment and the Court’s Harbison Inquiry

Here, the indictments charged two crimes: murder and possession of a firearm

by a convicted felon. The first charged that defendant “unlawfully, willfully, and

feloniously did of malice aforethought kill and murder” Ms. Kernny “in violation of

N.C.G.S. § 14-17.” The second charged that he was found guilty of a felony in 2020

and later “unlawfully, willfully, and feloniously did possess and have in the

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defendant’s control a semi-automatic pistol, which is a firearm . . . in violation of

N.C.G.S. § 14-415.1.”

The State argues that this was “sufficient to charge first-degree murder

without specifically alleging premeditation and deliberation or felony murder.” This

is correct. See State v. Garcia, 358 N.C. 382, 388 (2004) (“[A] short-form indictment

is sufficient to charge first-degree murder on the basis of felony murder committed

during an attempted rape.”). In principle, it would have been lawful for the State to

proceed under either theory at trial, and the court’s decision to instruct on felony

murder does not in itself substantially alter the indictment. But due process

jurisprudence illustrates that practice inevitably falls short of principle, obliging the

constant vigilance of appellate courts. Due process is “bound to fall differently at

different times and differently at the same time through different judges[,]” but “[t]he

vague contours of the Due Process Clause do not leave judges at large.” Rochin v.

California, 342 U.S. 165, 170 (1952).

In the instant case, the trial transcript illustrates that defendant was “misled

[and] surprised as to the nature of the charge[ ].” On the first day of trial, the court

conducted the standard inquiry required by the Due Process Clause and State v.

Harbison, 315 N.C. 175 (1985) in light of defendant’s admissions and his intention to

argue self-defense.

“A plea decision must be made exclusively by the defendant.” Harbison, 315

N.C. at 180. “Harbison applies when defense counsel concedes defendant’s guilt to

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either the charged offense or a lesser included offense.” State v. Alvarez, 168 N.C.

App. 487, 501 (2005) (citing State v. Wiley, 355 N.C. 592, 619–20 (2002)). Any

strategic concession to guilt may occur only with the defendant’s consent, and due

process requires that this consent be given voluntarily and knowingly, on the record,

and after a full appraisal of the consequences. State v. Perez, 135 N.C. App. 543, 547

(1999) (citations omitted). Accordingly, “the trial court must be satisfied that, prior

to any admissions of guilt at trial[,]” the defendant offers the admission “aware of the

potential consequences of his decision.” State v. Maready, 205 N.C. App. 1, 7, writ

denied, review denied, 364 N.C. 329 (2010). Counsel should also ensure the record

reflects whether the defendant’s consent is contingent upon presentation of a certain

defense. State v. Berry, 356 N.C. 490, 514–15 (2002).

Defendant expressly understood that his concessions were essential to the

strategic defense against the State’s first-degree murder theory. During the

Harbison inquiry, defendant’s counsel agreed that she would “admit certain elements

of the offense of first-degree murder in connection with [the] strategy to proceed on

self-defense or defense of others theory[.]” Defendant responded affirmatively to the

question: “If your counsel tells the jury that your actions, in fact, caused the death of

this victim, she would be admitting one of the elements of the offense of first-degree

murder, and that would relieve the State of its obligation to prove that element

beyond a reasonable doubt. Do you understand?” He agreed that he had discussed

the strategy and consented to the admission “of those things consistent with the

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defense of self-defense in this case, for example, the fact that your actions, in fact,

caused the death of this victim in this case.”

Moreover, on the third day of trial, the court conducted another inquiry to

ensure defendant understood the consequences of his stipulation to possession of a

firearm by a felon. Judge Ridgeway explained:

[As to] the offense of possession of a firearm by a felon, it is

the State’s burden to prove each element of that offense

beyond a reasonable doubt. You can stipulate to certain of

those elements, if you wish, for strategic purposes . . . [B]y

so doing, you do relieve the State of its burden to prove each

of the elements that you’ve stipulated to[.]

Defendant also understood the consequences of this stipulation.

In sum, the defense admitted that defendant was a felon, that he possessed the

firearm, and that he used the firearm, causing Ms. Kernny’s death. These admissions

were indeed “consistent with the defense of self-defense” and, on these facts, essential

to his defense against the State’s first-degree murder theory. They were knowing and

voluntary admissions to every element of the charged possession offense and some

elements of first-degree murder. The trial court even noted the “strategic purposes”

of the stipulation.

However, the court accepted his admissions without providing notice of or

opportunity to prepare for the consequences that would later arise from them. The

court did not declare its sua sponte decision to instruct the jury on felony murder,

with firearm possession as the underlying offense, until the charge conference.

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Crucially, Judge Ridgeway’s decision followed the defense’s extensive impeachment

of the State’s key witness, Ms. Ratliff, who testified to a version of events in stark

contrast to her previous police interview and the testimony of other witnesses. The

defense further impeached Ms. Ratliff’s credibility in its cross-examination of

Detective Silvius, who testified that he “had to help her along to get her focused on

what [he was] trying to ask,” that she had been “vague about what happened” and

that it had been “difficult to make sense of her timeline . . . probably due to her

impairment.” He also affirmed on cross-examination that he knew, following his

interviews with neighbors, family, and friends, that “it was pretty typical for her to

be intoxicated.” The defense also presented sufficient evidence and testimony to

require instructions on self-defense and diminished capacity. The jury later

concluded that the State failed to prove defendant’s guilt as to first-degree murder

based on malice, premeditation, and deliberation, and the jury acquitted him under

that theory.

Nevertheless, to convict defendant for felony murder below, the court required

the State to prove only (1) that “the defendant committed the felony offense of

possession of a firearm by a convicted felon,” (2) “that while committing the offense

of possession of a firearm by a convicted felon and with the use of said firearm, the

defendant killed the victim,” and (3) “that the defendant’s act was the proximate cause

of the victim’s death[,]” defining proximate cause as “a cause without which the

victim’s death would not have occurred.” Furthermore, as we discuss in detail below,

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the State is not required to overcome a self-defense justification to prove felony

murder. State v. Juarez, 369 N.C. 351, 354 (2016).

In the instruction quoted above as to the third element, the court did not clarify

whether the “act” in question was possessing the gun or pulling its trigger. The latter

reading was both natural in context and consistent with the law of felony murder. As

previously discussed, North Carolina is not a proximate cause state, insofar as the

underlying felony is not the “but for” cause of the death. But this does not mean that

the felony murder analysis is entirely free of considerations of proximate cause.

Indeed,

[a] killing is committed in the perpetration or attempted

perpetration of a felony for purposes of the felony murder

rule where there is no break in the chain of events leading

from the initial felony to the act causing death, so that the

homicide is part of a series of incidents which form one

continuous transaction.

State v. Hutchins, 303 N.C. 321, 325 (1981) (emphasis added).

Accordingly, felony murder requires the State to show a proximately causal

relationship only between some act that occurs and causes the death, which are both

encompassed within a larger continuous transaction that also includes the

defendant’s underlying felonious conduct. Therefore, defendant’s strategic

admissions, standing alone, were sufficient to prove beyond a reasonable doubt that

defendant was guilty under the court’s theory of felony murder. No reasonable jury

following the court’s instruction would have been able acquit him under this theory.

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The court’s sua sponte charge instantly transformed defendant’s successful defense

against the first-degree murder case that the State prosecuted at trial into a de facto

admission to every element of felony murder.

Defendant admitted to this novel theory of felony murder before either he or

the State knew such a felony murder charge was forthcoming, or that his admitted

possession offense could constitute its underlying felony. The court retroactively

granted the State an illusory burden of proof and made conviction a foregone

conclusion, even though defendant had no knowledge of these consequences or any

ability to prepare for a trial from which such consequences could result.

The dissent claims we hold that the trial court’s Harbison inquiry was

inadequate. This is not our holding. The court’s Harbison inquiries are not the

matter at issue in this appeal, and Defendant made no argument based on either

Harbison or an ineffective assistance of counsel claim. We address due process

concerns of a different kind.

Instead, we have asked whether the court’s sua sponte amendment to the bill

of indictment after the close of evidence constituted a substantial alteration because

it was not “inadvertent” and either “misled” or “surprised” defendant. The proper

place to look for answers is the trial transcript, where the obvious sections of

importance are the court’s Harbison inquiries. Those inquiries clearly show what

Defendant knew about the charges against him, why he made strategic admissions,

and what he understood about the consequences. In doing so, we touch on the case

STATE V. JOHNSON

Opinion of the Court

law underlying Harbison inquiries, but not to ask whether those inquiries were

conducted properly at the time. We discuss Harbison because the court’s inquiries

and defendant’s responses were highly relevant and helpful in our analysis of the Due

Process issues.

Accordingly, our conclusion here is not, as the dissent states, that the court’s

Harbison inquiry was erroneous because the court and defense counsel failed to tell

defendant he would be admitting to every element of the court’s future sua sponte

felony murder charge. By turning to Harbison and ineffective assistance of counsel,

the dissent takes our holding and reads it backwards. We instead conclude that the

jury charge was erroneous because Judge Ridgeway charged a novel felony murder

charge sua sponte at the close of evidence, despite knowing, both from his earlier

Harbison inquiries and the trial as a whole, that by substantially altering the bill of

indictment in this way, he would blindside defendant and undermine the primary

reason any defendant is entitled to an indictment in the first place: to prepare a

defense strategy at trial. As we discussed above, the court and defendant both

understood what his defense strategy was and that his admissions absolved the State

of proving the facts admitted. But if in making those admissions, he fully admitted

to felony murder and not just possession of a firearm by a felon, the State had no

obligation to prove his guilt on each element of felony murder beyond a reasonable

doubt, and there was no need to submit the felony murder question to a jury.

STATE V. JOHNSON

Opinion of the Court

Moreover, the dissent relies on case law that undermines its own argument,

namely United States v. Cronic, 466 U.S. 648, 548 (1984). Therein, the Supreme

Court held that a defendant is prejudiced by ineffective assistance only in infrequent

and narrow circumstances “so likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658. Such

circumstances exist when “counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing.” Id. at 659–61. The dissent affirms that we must

consider IAC claims under the Sixth and Fourteenth Amendments in North Carolina

under both prongs of Strickland v. Washington, 466 U.S. 668 (1984) unless a narrow

Cronic exception applies.

However, defendant makes no claim of ineffective assistance of counsel under

the Sixth and Fourteenth Amendments, and the Cronic exception would have been

beside the point if he did so. This is because the defense counsel did indeed

meaningfully test the prosecution’s case: counsel argued self-defense and the jury

acquitted defendant of first-degree murder. But the prosecution never presented a

felony murder case, and one cannot argue that defense counsel “entirely fail[ed] to

subject” a case the State never presented “to meaningful adversarial testing.”

Defendant challenged his conviction because the court charged him with an offense

the State was not obligated to prove beyond a reasonable doubt, not because his

defense counsel failed to contest a case that the prosecution did not make.

STATE V. JOHNSON

Opinion of the Court

Accordingly, to reach its conclusion that defendant received a fair trial free

from prejudicial error, the dissent ignores our actual holding to answer questions

which defendant did not raise, and which are unrelated and irrelevant to either the

facts of this case or the record on appeal.

2. Further Constitutional Considerations

“An unforeseeable judicial enlargement of a criminal statute, applied

retroactively, operates precisely like an ex post facto law, such as Art. I, § 10 of the

Constitution forbids.” Bouie v. City of Columbia, 378 U.S. 347, 353 (1964).

Elementary considerations of fairness dictate that

individuals should have an opportunity to know what the

law is and to conform their conduct accordingly; settled

expectations should not be lightly disrupted. For that

reason, the “principle that the legal effect of conduct should

ordinarily be assessed under the law that existed when the

conduct took place has timeless and universal appeal.”

Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (quoting Kaiser Aluminum &

Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring)). Due

process bars a judge’s application of “a novel construction of a criminal statute to

conduct that neither the statute nor any prior judicial decision has fairly disclosed

within its scope.” United States v. Lanier, 520 U.S. 259, 266 (1997).

The trial court’s application of the felony murder statute to defendant’s conduct

was manifestly unforeseeable. Our appellate courts have never approved the court’s

construction of the felony murder statute, and as discussed above, the illegality of

defendant’s conduct was “fairly disclosed” by neither the statute’s text nor any case

STATE V. JOHNSON

Opinion of the Court

law interpreting it. Moreover, had either party been able to foresee the court’s

enlargement of this statute, the State, defendant, and his counsel likely would have

prepared for a trial different in kind rather than degree, determining a different set

of issues. Indeed, neither party would have proceeded with its trial strategy: any

competent defense attorney would not have made these concessions, and any

competent prosecutor would have avoided this jury’s acquittal by prosecuting a felony

murder case.

Furthermore, if the felony murder statute were “on its face [ ] vague or

overbroad,” defendant would have had “some notice, by virtue of this very

characteristic, that a question may arise as to its coverage, and that it may be held

to cover his contemplated conduct.” Id. at 352. But it is already established that the

statute is neither ambiguous, vague, nor overbroad.

When a statute on its face is narrow and precise . . . it lulls

the potential defendant into a false sense of security, giving

him no reason even to suspect that conduct clearly outside

the scope of the statute as written will be retroactively

brought within it by an act of judicial construction. . . .

[T]he violation is that much greater when, because the

uncertainty as to the statute’s meaning is itself not

revealed until the court’s decision, a person is not even

afforded an opportunity to engage in such speculation

before committing the act in question.

Id. This is why due process forbids “the retrospective application of an unforeseeable

judicial modification of criminal law to the detriment of the defendant.” State v.

Barnes, 345 N.C. 184, 234 (1997) (citations omitted).

STATE V. JOHNSON

Opinion of the Court

Here, the court’s novel and erroneous construction of the felony murder statute

drastically altered this dynamic to the detriment of defendant. Where the only

underlying felony possible under the facts is this possession offense and the court

charges this construction of the felony murder statute, the court deprives felons, and

felons in particular, of a self-defense justification.

A self-defense justification is “not available to a person who used defensive

force and who . . . [w]as attempting to commit, committing, or escaping after the

commission of a felony.” N.C.G.S. § 14-51.4. This is because the State has a

compelling interest in “disallowing the use of self-defense when a person’s own

unprovoked, aggressive, and felonious acts set in motion an unbroken chain of events

leading to a killing or other injury[.]” McLymore, 380 N.C. at 197 (emphasis added).

However, depriving an individual of the right to defend his life “for other less

compelling reasons would be on much shakier constitutional ground.” Id. Hence,

outside of felony murder, to disqualify a defendant from a self-defense justification,

the State must “prove the existence of an immediate causal nexus between the

defendant's disqualifying conduct and the confrontation during which the defendant

used force.” Id. This requires evidence that “but for the defendant attempting to

commit, committing, or escaping after the commission of a felony, the confrontation

resulting in injury to the victim would not have occurred.” McLymore, 380 N.C. at

197–98 (cleaned up, quotes and citation omitted). This is in step with all theories of

STATE V. JOHNSON

Opinion of the Court

felony murder previously approved in North Carolina, where “self-defense is not a

defense to felony murder.” Juarez, 369 N.C. at 354.

Here, however, the court misplaced defendant’s conduct into the felony murder

context although (1) competent evidence suggested he used the firearm in selfdefense, and (2) his only other charged offense was possessing the firearm. By

erroneously charging the jury on this theory, the court ensured a murder conviction

by allowing the State to take advantage of a de facto self-defense disqualification,

requiring it to show proximate cause only between defendant’s finger pulling the

trigger and Ms. Kernny’s death, not between his felonious possession and the overall

confrontation. And as we know, the court retroactively disburdened the State of its

obligation to prove anything at all because defendant was a felon who had admitted

to pulling the trigger in self-defense, requiring the jury to convict.

Consider the following comparison. A hypothetical defendant, Mr. S, has no

criminal record, but all other circumstances and Mr. S’s active conduct are identical

to the instant case. Like defendant, Mr. S carried and used a concealed handgun

without a valid permit, but Mr. S is charged with first-degree murder and a firearm

possession misdemeanor rather than felonious possession. Following a Harbison

inquiry, Mr. S admits to the misdemeanor and claims self-defense. As in the instant

case, the jury acquits Mr. S of first-degree murder following self-defense and

diminished capacity instructions, convicting him of the possession offense. However,

STATE V. JOHNSON

Opinion of the Court

because the judge could not instruct the jury on felony murder, the jury proceeds to

consider whether Mr. S is guilty of second-degree murder or another lesser charge.

Crucially, every charge the jury considers in Mr. S’s case permits him to raise

a self-defense justification. It is for the jury, and only the jury, to determine whether

the killing was justified by virtue of Mr. S’s fundamental and inherent natural rights.

The first law of nature is that of self-defense. The law of

this state and elsewhere recognizes this primary impulse

and inherent right. One being without fault, in defense of

his person, in the exercise of ordinary firmness, has a right

to invoke this law and kill his assailant, if he has

reasonable ground for believing or apprehending that he is

about to suffer death or great or enormous bodily harm at

his hands. The danger or necessity may be real or

apparent. It is for the jury, and not the party setting up the

plea, to determine, under all the facts and circumstances,

the reasonableness of the grounds for the belief or

apprehension of the real or apparent danger or necessity.

State v. Holland, 193 N.C. 713, 718 (1927) (emphasis added).

However, in the instant case, the court erroneously introduced a charge

distinct from all other categories of murder that is, by definition, inconsistent with

self-defense claims, after presiding over a trial in which defendant’s case relied

specifically on self-defense. The court not only gave a different jury charge, against

which defendant had no opportunity to defend himself, but it took the crucial

determination of defendant’s self-defense claim out of the jury’s hands and, by issuing

improper jury instructions, prevented them from considering defendant’s guilt under

second-degree murder or any lesser indicted charge.

STATE V. JOHNSON

Opinion of the Court

Indeed, under the court’s theory and the State’s argument on appeal, any felon

who uses a firearm to kill in self-defense can be charged with felony murder,

disqualified from arguing self-defense, and automatically convicted. “To accept the

State’s argument on this ground would be to effectively hold that all individuals with

a prior felony conviction are forever barred from using a firearm in self-defense under

any circumstances. This would be absurd.” McLymore, 380 N.C. at 199 (emphasis

added). Moreover, punishing a defendant for that which “the law plainly allows him

to do is a due process violation of the most basic sort, and for an agent of the State to

pursue a course of action whose objective is to penalize a person’s reliance on his legal

rights is patently unconstitutional.” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)

(cleaned up, citations and quotes omitted).

“If the appellate court finds that there has been reversible error which denied

the defendant a fair trial conducted in accordance with law, it must grant the

defendant a new trial.” N.C.G.S. § 15A-1447. Accordingly, because defendant’s right

to due process was violated, we must vacate defendant’s conviction and grant his

request for a new trial.

III. Conclusion

For the above reasons, we vacate defendant’s conviction and remand this case

to Superior Court for a new trial.

VACATED AND REMANDED FOR NEW TRIAL.

Judge STROUD concurs in result by separate opinion.

STATE V. JOHNSON

Opinion of the Court

Judge TYSON concurs in part and dissents in part by separate opinion.

No. COA25-1000 – State v. Johnson

STROUD, Judge, concurring in result.

I concur in result only. The trial court’s construction of the felony murder

statute was “novel,” but it was not erroneous. This case’s prejudicial error arose from

the timing of the trial court’s announcement of its intent to instruct on felony murder

and Defendant’s lack of opportunity to prepare for trial, not from the substance of the

law as the trial court stated in the jury instructions.

No. COA25-1000 – State v. Johnson

TYSON, Judge, concurring in part and dissenting in part.

I agree with the plurality’s opinions concluding possession of a firearm by a

felon can serve as the predicate felony to first-degree murder for purposes of the

felony murder rule. Instructing the jury on felony murder did not violate Defendant’s

right to due process. The trial court did not give constitutionally-inadequate notice

to Defendant. I disagree to award Defendant a new trial.

The plurality’s opinion improperly awards Defendant a new trial, after holding

the trial court’s Harbison inquiry into possession of a firearm by a felon was

inadequate. It asserts “his strategic admissions, standing alone, were sufficient to

prove beyond a reasonable doubt that [D]efendant was guilty under the court’s theory

of felony murder.” The plurality’s opinion further holds the trial court

“retrospectively” applied “an unforeseeable judicial modification of criminal law to

the detriment of the defendant” by “erroneously introduce[ing] a charge distinct from

all other categories of murder that is, by definition, inconsistent with self-defense

claims, after presiding over a trial in which [D]efendant’s case relied specifically on

self-defense.”

I discern and vote no prejudicial error occurred in the jury’s verdict or in the

judgment entered thereon. I concur in part and respectfully dissent in part.

I. Standard of Review

This Court reviews “a constitutional challenge to a criminal statute de novo.”

State v. Nanes, 297 N.C. App. 863, 866, 912 S.E.2d 202, 206 (2025) (citation omitted).

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

II. Defendant’s Harbison Inquiry

The trial court stated: “I do want to remind you that you have the right to

remain silent, anything you say can be used against you,” during pre-trial conference

before conducting the Harbison inquiry into Defendant’s self-defense plea and prior

to Defendant stipulated to being a convicted felon.

Defendant did not seek a bill of particulars. Our Supreme Court held “when

the factual basis for prosecution is sufficiently pled, a defendant must be prepared to

defend against any and all legal theories which [the] facts may support.” State v.

Garcia, 358 N.C. 382, 389, 597 S.E.2d 724, 732 (2004) (citing State v. Holden, 321

N.C. 125, 135, 362 S.E.2d 513, 522 (1987)).

The plurality’s opinion cites State v. Hill, 185 N.C. App. 216, 224, 647 S.E.2d

475, 480 (Tyson, J., dissenting), rev’d per curiam per dissent, 362 N.C. 169, 655 S.E.2d

831 (2008) to correctly assert “A change in an indictment does not constitute an

amendment where the variance was inadvertent and defendant was neither misled

nor surprised as to the nature of the charges.”

The plurality then asserts “In principle, it would have been lawful for the State

to proceed under either theory at trial, and the court’s decision to instruct on felony

murder does not in itself substantially alter the indictment.” From there is where the

plurality’s analysis errs. The plurality’s opinion wades into a Harbison analysis, 315

N.C. 175, 337 S.E.2d 504 (1985), yet asserts it does not, stating “we have asked

whether the court’s sua sponte amendment to the bill of indictment after the close of

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

evidence constituted a substantial alteration because it was ‘inadvertent’ and either

‘misled’ or ‘surprised’ Defendant.” The plurality goes beyond Defendant’s Harbison

responses and cites law, but then holds constitutional error occurred based in part on

its Harbison analysis.

The Supreme Court of North Carolina in State v. Farook recently examined

Harbison’s per se prejudice standard from United States v. Cronic, 466 U.S. 648, 658,

80 L. Ed. 2d 657 (1984), and after the Supreme Court of the United States’ opinion in

Florida v. Nixon, 543 U.S. 175, 160 L. Ed. 2d 565 (2004), Farook, __ N.C. __, __ S.E.2d

__ ,No. 457PA20-2, (N.C. August 14, 2026).

Our Supreme Court reiterated in order to show Ineffective Assistance of

Counsel (“IAC”), a defendant must satisfy the two-pronged test announced by the

Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 80 L.

Ed. 2d 674 (1984). The test in Strickland for IAC has been adopted by the Supreme

Court of North Carolina for state constitutional purposes. State v. Braswell, 312 N.C.

553, 324 S.E.2d 241 (1985).

To show a counsel’s purported deficient performance prejudiced him, a

defendant “must show that his counsel’s conduct fell below an objective standard of

reasonableness.” Id. at 561-62, 324 S.E.2d at 248 (citing Strickland, 466 U.S. at 688,

80 L. Ed. 2d at 693).

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

“counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable. Unless a defendant makes both showings, it

cannot be said that the conviction . . . resulted from a

breakdown in the adversary process that renders the result

unreliable.

Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693; accord Braswell, 312 N.C. at 561-62,

324 S.E.2d at 248.

In United States v. Cronic, the Supreme Court of the United States identified

“circumstances that are so likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658, 80 L. Ed. 2d

at 667. The Court recognized several differing examples: (1) when there is a

“complete denial of counsel . . . at a critical stage of [the] trial”; (2) when “counsel

entirely fails to subject the prosecution’s case to meaningful adversarial testing”; and,

(3) situations, such as when the identity of the counsel is unclear or occurs too close

to the start of trial to effectively prepare, in which competent counsel would be unable

to provide effective assistance. Id. at 659–61, 80 L. Ed. 2d at 667-69 (citations

omitted).

In State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985), our

Supreme Court held: where “counsel admits his client’s guilt without first obtaining

the client’s consent, the client’s rights to a fair trial and to put the State to the burden

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

of proof are completely swept away.” The Court stated the practical effect is the same

as if defense “counsel had entered a plea of guilty without the client’s consent.” Id.

Our Supreme Court in Harbison requires a defendant’s “on the record” consent

to allow his counsel's concession of defendant's guilt of one or more of the offenses for

which he is charged. An “[IAC], per se in violation of the Sixth Amendment, [is]

established in every criminal case in which the defendant’s counsel admits the

defendant’s guilt to the jury without the defendant’s consent.” Id. at 180, 337 S.E.2d

at 507-08.

The defendant in Garcia, asserted error occurred in a first-degree murder trial

where he had sought a bill of particulars and requested the State to identify “which

predicate felony it intended to prove at trial” by arguing before the trial court “[w]e

asked what is the state’s theory, whether it be premeditation, deliberation, or felony

murder, and if it is felony murder, what are the felonies upon which they rely?”

Garcia, 358 N.C. at 389, 597 S.E.2d at 732.

Our Supreme Court reasoned “[s]uch legal theories of the prosecution are not

‘factual information’ within the meaning of N.C.G.S. § 15A-925.” Id. The Court held

“[t]he State is not required to choose its theory of prosecution prior to trial.” Id. at

389-90, 597 S.E.2d at 732.

In Nixon, the defendant was indicted for first-degree murder, kidnapping,

robbery, and arson. Nixon, 543 U.S. at 180, 160 L. Ed. 2d at 574. The defendant’s

counsel attempted to arrange a plea deal for the defendant to avoid the potential

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

death penalty because the State’s evidence against the defendant was “overwhelming

and his guilt “was not subject to any reasonable dispute.” Id. at 180-81, 160 L. Ed.

2d at 574. The prosecutors refused the proposed deal. Id.

Based upon his extensive experience in capital trials, the defendant’s attorney

“feared that denying [the defendant’s] commission of the kidnapping and murder

during the guilt phase would compromise [his] ability to persuade the jury, during

the penalty-phase, [the defendant]’s conduct was the product of his mental illness.”

Id. at 181, 160 L. Ed. 2d at 574. The defendant’s attorney “concluded . . . the best

strategy would be to concede guilt, thereby preserving his credibility in urging

leniency during the penalty-phase.” Id.

However, when the defendant’s attorney attempted to explain this strategy to

the defendant, the defendant was “generally unresponsive” and never verbally

approved or protested” this strategy. Id. The defendant’s counsel proceeded with

this strategy, the defendant was convicted of all charges, and the trial proceeded to

the sentencing phase where the jury’s verdict and the court sentenced defendant to

death. Id. at 184, 160 L. Ed. 2d at 576.

In a motion for post-conviction relief, relying on Cronic, the defendant argued

a “presumption of prejudice ineffective-assistance of counsel claim.” Id. at 185, 160

L. Ed. 2d 577. Following an evidentiary hearing at the trial court, the Florida

Supreme Court held “no competent, substantial evidence . . . establish[ed] that [the

defendant] affirmatively and explicitly agreed to counsel’s strategy” and reversed and

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

remanded for a new trial. Id. (citation omitted).

The Supreme Court of the United States granted certiorari to decide “whether

counsel’s failure to obtain the defendant’s express consent to a strategy of conceding

guilt in a capital trial automatically renders counsel’s performance deficient, and

whether counsel’s effectiveness should be evaluated under Cronic or Strickland.” Id.

at 186-87, 160 L. Ed. 2d at 578.

Writing for a unanimous court, Justice Ginsburg observed:

The Florida Supreme Court’s erroneous equation of [the

defendant’s attorney]’s concession strategy to a guilty plea

led it to apply the wrong standard in determining whether

counsel’s performance ranked as ineffective assistance.

The court first presumed deficient performance, then

applied the presumption of prejudice that United States v.

Cronic, 466 U.S. 668, 80 L. Ed. 2d 657, 104 S. Ct. 2039

(1984), reserved for situations in which counsel has

entirely failed to function as the client’s advocate. The

Florida court therefore did not hold [the defendant] to the

standard prescribed in Strickland v. Washington, 466 U.S.

668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which would

have required [the defendant] to show that [his] counsel’s

concession strategy was unreasonable.

Id. at 189, 160 L. Ed. 2d at 579-80.

Justice Ginsburg distinguished the facts and holding in Cronic from those in

Strickland, holding:

Cronic recognized a narrow exception to Strickland’s

holding that a defendant who asserts ineffective assistance

of counsel must demonstrate not only that his attorney’s

performance was deficient, but also that the deficiency

prejudiced the defense. Cronic instructed that a

presumption of prejudice would be in order in

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

circumstances that are so likely to prejudice the accused

that the cost of litigating their effect in a particular case is

unjustified. The Court elaborated: “[I]f counsel entirely

fails to subject the prosecution’s case to meaningful

adversarial testing, then there has been a denial of Sixth

Amendment rights that makes the adversary process itself

presumptively unreliable.” [S]ee Bell v. Cone, 535 U.S. 685,

696–97, [152 L. Ed. 2d 914, 928,] 122 S. Ct. 1843, 1851

(2002) (for Cronic’s presumed prejudice standard to apply,

counsel’s “failure must be complete”). We illustrated just

how infrequently the “surrounding circumstances

justif[ies] a presumption of ineffectiveness” in Cronic itself.

Id. at 190, 160 L. Ed. 2d at 580 (citations and quotation marks omitted). The Court

in Nixon concluded unless the narrow exception in Cronic applies, IAC based upon a

defense counsel’s concession of guilt without consent must be viewed through a

Strickland analysis. Id.

In State v. Farook, Chief Justice Newby examined the continued viability of

Harbison and McAlister and held:

On the facts of Harbison, the defendant’s counsel did

precisely what Cronic forbade: failed to function as his

client’s advocate or to meaningfully test the State’s case by

“expressing his personal opinion that his client should not

be found innocent but should be found guilty of

manslaughter,” despite the defendant’s contention

throughout trial that he acted in self-defense. This Court

held that “when counsel to the surprise of his client admits

his client’s guilt, the harm is so likely and so apparent that

the issue of prejudice need not be addressed.” Although this

“surprise” concession fell within the “narrow exception” of

Cronic, Harbison went a step further and drew every

instance of a counsel’s unconsented-to concession of his

client’s guilt under the umbrella of Cronic: “ineffective

assistance of counsel, per se in violation of the Sixth

Amendment, has been established in every criminal case

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

in which the defendant’s counsel admits the defendant’s

guilt to the jury without the defendant’s consent.”

Harbison, 315 N.C. at 180, 337 S.E.2d at 507–08 (emphasis

added). This broad, blanket rule cannot be maintained

following Nixon; instead, Harbison’s per se prejudice rule

may only apply where Cronic permits.

Because the United States Supreme Court is the

final arbiter of federal law, we are compelled to follow that

Court’s guidance when considering IAC claims under the

Sixth and Fourteenth Amendments. Therefore, IAC claims

asserting that defense counsel conceded guilty without the

defendant knowing and voluntary permission are

evaluated under both prongs of Strickland, unless the

narrow exception recognized by Cronic applies.

Farook, __ N.C. at __, __ S.E.2d at __. State v. McAlister 375 N.C. 455, 847 S.E.2d

711 (2020).

The Court recognized in a footnote, “Infrequently, a defense counsel’s

concession of guilt without the defendant’s knowing and voluntary permission may

amount to a complete failure to function as the defendant’s advocate. On those

uncommon occasions, the “narrow” Cronic exception may be invoked, and the

prejudice prong may be presumptively satisfied.” Id. at __ n.5, __ S.E.2d at __ n5.

The plurality’s opinion here concludes its rule section relying on a concept and

reasoning similar to what the Court did in McAlister, 375 N.C. 455, 847 S.E.2d 711

(2020).

The Court in Farook, specifically mentions and chastises the reasoning in

McAlister as an example wherein the Supreme Court of North Carolina and this

Court have “continued to apply Harbison following the Supreme Court’s decision in

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

Nixon.” Farook, __ N.C. at __ n.4, __ S.E.2d at __ n4. This “per se” standard was

expressly overruled and the applicability of McAlister was severely limited, if not

overruled, in Farook. See Id. at __, __ S.E.2d at __ (Berger, J. concurring) (“If the

Court is searching for clarity, we should simply state that North Carolina follows

existing federal law in this sphere and overturn Harbison and McAllister to the extent

they presume prejudice from uncontested concessions because they insert a separate

question often unanswerable from the record: whether defendant knowingly

consented in advance?”).

Defendant was cautioned and warned by the trial court prior to purportedly

allowing his counsel to admit to him being a felon in possession of a firearm. “[T]his

Court engages in a presumption that trial counsel’s representation is within the

boundaries of acceptable professional conduct.” State v. Roache, 358 N.C. 243, 280,

595 S.E.2d 381, 406 (2004) (citation omitted). Applying Farook and Strickland,

Defendant cannot show prejudice from the stipulations and admissions to necessitate

a new trial.

Our Supreme Court also stated it “ordinarily do[es] not consider it to be the

function of an appellate court to second-guess counsel’s tactical decisions[.]” State v.

Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986). Defense counsel’s stipulation

may well have been a strategic decision to keep the jury from hearing Defendant’s

extensive criminal history, as he was found to have accumulated 22 prior record

points and a prior record level VI at sentencing.

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

III. Self-Defense and Felony Murder

The plurality concludes:

Accordingly, felony murder requires the State to show

proximately causal relationship only between some act

that occurs and causes the death, which are both

encompassed within a larger continuous transaction that

also includes the defendant’s underlying felonious conduct.

Therefore, defendant’s strategic admissions, standing

alone, were sufficient to prove beyond a reasonable doubt

that defendant was guilty under the court’s theory of felony

murder. No reasonable jury following the court’s

instructions would have been able to acquit him under this

theory.

A. State v. Richardson

The tension and interplay between self-defense and the felony murder rule was

extensively examined by our Supreme Court in State v. Richardson, 341 N.C. 658,

668, 462 S.E.2d 492, 499 (1995). Our Supreme Court also reasoned “By not requiring

the State to prove the elements of murder, the legislature has, in essence, established

a per se rule of accountability for deaths occurring during the commission of felonies.”

State v. Bell, 338 N.C. 363, 386, 450 S.E.2d 710, 723 (1994). The Court held selfdefense is available in felony murder cases only to the extent the assertion of selfdefense relates to and applies to the “underlying felonies.” Richardson, 341 N.C. at

668, 462 S.E.2d at 499.

Defendant was free to argue a defense to the felon in possession of a firearm

charge. Id.; See N.C. Gen. Stat. § 15A-905(c)(1) (2025). The plurality holds “the State

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

is not required to overcome a self-defense justification to prove felony murder” citing

State v. Juarez, 369 N.C. 351, 354, 794 S.E.2d 293, 297 (2016). However, the Court

in Juarez, re-affirms Richardson’s holding, “[p]erfect self-defense, however, may be a

defense to the underlying felony, which would thereby defeat the felony murder

charge.” Id. (citations omitted).

B. State v. Mercer

Our Supreme Court has also allowed the common law defense of justification

to be an affirmative defense to possession of a firearm by a felon. See State v. Mercer,

373 N.C. 459. 463, 373 S.E.2d 359, 363 (2020) (“We now hold that in narrow and

extraordinary circumstances, justification may be available as a defense to a charge

under N.C.G.S. § 14-415.1.”).

IV. Unforeseen Judicial Enlargement

The plurality’s opinion views this case as an “unforeseen judicial enlargement”

of the felony murder rule. The plurality cites Bouie v. City of Columbia, 378 U.S. 347,

353, 12 L. Ed. 2d 894, 899 (1964). In Bouie, the Supreme Court of the United States

examined a challenge to the application of a South Carolina trespassing statute by

two college students at a civil rights “‘sit-in’ demonstration” at a lunch counter in an

Eckerd’s Drug Store. Id. at 348, 12 L. Ed. 2d at 896.

The Supreme Court of South Carolina affirmed the convictions for trespass

where the statute in question defined the prohibited conduct as “entry upon the lands

of another . . . after notice from the owner or tenant prohibiting such entry[.]” Id. at

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

349, 12 L. Ed. 2d at 897 (citation omitted). “The South Carolina Supreme Court, in

affirming petitioners’ convictions, construed the statute to cover not only the act of

entry on the premises of another after receiving notice not to enter, but also the act

of remaining on the premises of another after receiving notice to leave.” Id. at 350,

12 L. Ed. 2d at 898.

The Supreme Court of the United States reversed, holding:

There was nothing in the statute to indicate that it also

prohibited the different act of remaining on the premises

after being asked to leave. Petitioners did not violate the

statute as it was written; they received no notice before

entering either the drugstore or the restaurant

department. Indeed, they knew they would not receive any

such notice before entering the store, for they were invited

to purchase everything except food there. So far as the

words of the statute were concerned, petitioners were given

not only no “fair warning,” but no warning whatever, that

their conduct in Eckerd's Drug Store would violate the

statute.

Id. at 355, 12 L. Ed. 2d at 901.

The plurality’s opinion cites Bouie for the well-trodden maxim: “[A]n

unforeseeable judicial enlargement of a criminal statute, applied retroactively,

operates like an ex post facto law, such as Art. I, § 10 of the Constitution forbids.” Id.

at 353, 12 L. Ed. 2d at 899. Justice Brennan, writing for the majority in Bouie

examined the application of vague statutes to expound the rule: “If a judicial

construction of a criminal statute is ‘unexpected and indefensible by reference to the

law which had been expressed prior to the conduct in issue,’ it must not be given

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

retroactive effect.” Id. at 354, 12 L. Ed. 2d at 900. The plurality’s opinion does not

square this analysis with the Supreme Court of the United States’ language.

Here the plurality acknowledges the felony murder statute is clear and

unambiguous. See State v. Wall, 304 N.C. 609, 614, 286 S.E.2d 68, 72 (1982). The

U.S. Court of Appeals for the Second Circuit acknowledged “The first use of a

longstanding statute to prosecute defendants engaged in a particular type of conduct

. . . does not necessarily violate the Constitution.” United States v. Moseley, 980 F.3d

9, 24 (2d Cir. 2020). “[A]ll the Due Process Clause requires is that the law give

sufficient warning that men may conduct themselves so as to avoid that which is

forbidden.” State ex rel. Gilchrist v. Hurley, 48 N.C. App. 433, 442, 269 S.E.2d 646,

652 (1980) (citation omitted).

The provisions of the felon in possession of a firearm, and underlying felonies

not expressly included in N.C. Gen. Stat. § 14-17(a), falls under “or other felony

committed or attempted with the use of a deadly weapon”, are straightforward, and

applies here. N.C. Gen. Stat. § 14-17(a)(2025). Defendant’s argument is properly

overruled.

V. Conclusion

The plurality’s opinion awards Defendant a new trial by improperly applying

Harbison, and the reasoning from the discredited McAlister, and their progeny. Their

opinions further erroneously conclude the trial court “retrospectively” applied “an

unforeseeable judicial modification of criminal law to the detriment of the defendant.

STATE V. JOHNSON

TYSON, J., concurring in part and dissenting in part

The pluralities’ opinions erroneously vacates Defendant’s jury conviction and

remands for a new trial.

Defendant received a fair trial, free from prejudicial errors he preserved and

argued. No reversible error occurred or is shown in the jury’s verdicts or in the

judgments entered thereon. I concur in part to hold possession of a firearm by a felon

is a permissible “catch all” predicate felony under first degree felony murder, and

respectfully dissent from the award of a new trial.

State v. Johnson

Authorities cited

Opinion · public domain