Wednesday, September 29, 2010

In trial for unlawful firearm possession, lack of jury instruction on affirmative defense of justification not plain error.

In Gov’t of V.I. v. Lewis, No. 09-3245 (3d Cir. Sept. 8, 2010), the Third Circuit refined its test for when a jury, in an unlawful possession of a firearm case, should be instructed to consider whether defendant’s possession was a legal necessity.

Lewis was involved in the fatal shooting of one Mackellis George, and was charged with first-degree murder and unlawful possession of a firearm. At trial, Lewis testified that after falling asleep at George’s home, he awoke to find George sexually assaulting him. Lewis left, returning a few days later to collect some belongings. When Lewis arrived, George became enraged. He brandished a firearm, fired shots into the ground, and ordered Lewis to get into the passenger seat of George’s car. While George was driving, he began insulting George and jabbing the gun into his head. A struggle ensued, the gun fired several times, Lewis gained control of the gun and shot George in self-defense.

At the close of trial, the Government and Lewis submitted proposed jury instructions. Lewis specifically requested that a self-defense instruction be given on the murder charge, but not on the unlawful possession charge. The court instructed as Lewis requested. The jury acquitted Lewis for murder, but convicted for unlawful possession. The Appellate Division affirmed the conviction.

On appeal, Lewis argued that his unlawful possession charge should be vacated. Lewis argued that he possessed the gun only long enough to defend himself in the car, and therefore the court should have instructed the jury on the affirmative defense of temporary justified possession. Because this issue was being raised for the first time, the Court reviewed it for plain error.

The Third Circuit ruled that it was not plain error for the trial court to fail, sua sponte, to instruct the jury on the affirmative defense of justification. In reaching that ruling, the Court examined its decision in United States v. Paolello, 951 F.2d 537 (3d Cir. 1991). In Paolello, the court adopted a four-part test to detemine the availability of a justification defense for an unlawful possession charge. The evidence must support a jury’s conclusion that: (1) the defendant was under an unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative to both the criminal act and the avoidance of the threatened harm; and (4)there was a direct causal relationship between the criminal act and the avoidance of the threatened harm. The Court further noted that this test must be applied restrictively, requiring a high level of proof to establish justification.

Applying the Paolello test to the record, the Court found that Lewis satisfied the first and second Paolello requirements. Discussing the third requirement, the Court agreed with Lewis that a jury could conclude that he could not have avoided the threat George posed without taking immediate possession of the gun while in the car. But the Court refined the third Paolello test to require that the defendant: (a) possess the firearm no longer than is absolutely necessary to avoid the imminent threat; and (b) must dispossess himself of the gun in an objectively reasonable manner once the threat has abated. Reviewing the record, the Court found that Lewis did not meet the third requirement because he did not immediately discard the firearm from the car, or hand the gun to police when he arrived at the police station – Lewis’s decision to discard the gun in a dumpster does not satisfy the dispossession requirement.

The Court thus concluded that under Paolello, as refined, the record evidence did not support a justified possession defense to the unlawful possession of a firearm charge. Therefore, there was no plain error in the trial court’s sua sponte failure to give the justification instruction.

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