717 F.2d 1536 (6th Cir. 1983), 80-5025, United States v. Guyon

Docket Nº:80-5025.
Citation:717 F.2d 1536
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Melvin Bay GUYON, Defendant-Appellant.
Case Date:September 26, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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717 F.2d 1536 (6th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Melvin Bay GUYON, Defendant-Appellant.

No. 80-5025.

United States Court of Appeals, Sixth Circuit

September 26, 1983

Argued July 26, 1983.

James R. Willis (argued), Cleveland, Ohio, for defendant-appellant.

James R. Williams, U.S. Atty., William J. Edwards, Asst. U.S. Atty. (argued), Cleveland, Ohio, for plaintiff-appellee.

Before EDWARDS, Chief Judge, and JONES and NICHOLS, [*] Circuit Judges.

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GEORGE CLIFTON EDWARDS, Jr., Chief Judge.

Appellant Melvin Bay Guyon appeals from his conviction by a jury for first degree murder of an FBI agent. Guyon was sentenced to life imprisonment under 18 U.S.C. Secs. 1111 and 1114 (1976). At the opening of the trial, the United States had stipulated that it would not ask the death penalty if Guyon was convicted of first degree murder.

Many of the facts in this case are undisputed. The FBI agent who was killed was Johnnie Oliver. He was one of six FBI agents who went to a house in Cleveland on August 9, 1979, with the federal fugitive arrest warrant in their possession for Guyon's arrest.

The following background facts were also stipulated by the parties at the beginning of the trial. In March of 1978 Guyon was indicted on two felony charges in Cleveland, Ohio. He was arraigned and released on bond. When he failed to appear for arraignment, an Ohio warrant for his arrest was issued and remained in effect until August 9, 1978. In the fall of 1978, three other felony warrants for the arrest of Guyon were issued by the state of Illinois and subsequent thereto on November 1, 1978 a federal unlawful flight warrant was issued by a U.S. Magistrate in the Northern District of Illinois and turned over to the Federal Bureau of Investigation. This warrant was in effect on August 9, 1978.

While the stipulations do not specifically detail Guyon's movements, the facts at trial showed without dispute that he left Ohio for Chicago, Illinois after the Ohio felony warrants and remained there until after the three Illinois felony warrants for his arrest were issued in Chicago. He thereafter reappeared in the neighborhood of Cleveland, Ohio where he had previously lived.

Cleveland agents gained information that Guyon was staying in an apartment occupied by one Katherine Little and her and Guyon's two small children. Prior to the FBI agents' entrance into the apartment on August 9, the FBI agents had told Little that the FBI was "looking for" Guyon. FBI agents had given a similar message to Guyon's mother and to his sister, and to his employer. The jury heard testimony that at least two of these had passed on this message to Guyon. The FBI agents also knew that Guyon constantly went armed--sometimes with two pistols.

Guyon had previously lived with Little. On his return to Cleveland from Chicago, he had discovered that one, Preston Mathis, was living with Katherine Little. After a confrontation between Guyon and Mathis, Mathis had informed the FBI that Guyon was staying at Little's apartment. When the agents approached the apartment door, (which was metal and had a peephole in it), they asked Mathis to get Little to open the door. This he agreed to do. It appears that within the apartment, Guyon first came to the door and saw Mathis through the peephole. He then told Little to go to the door, but not to tell Mathis that he, Guyon, was there, and Guyon retreated to a back room where the two children were. Mathis told Little he had some money for her and she opened the door, whereupon the FBI agents, standing nearby, shoved the door open and rushed in. Agents testified that they called out "FBI, FBI" as they entered.

Agent Oliver, with a shotgun in his hand led the charge. He met Guyon in the hallway. Guyon fired and mortally wounded agent Oliver by a shot through the heart. Oliver's shotgun shot did not hit Guyon. A number of shotgun and pistol shots were then fired in Guyon's direction, but he escaped by diving through a window and running away through a hail of gunfire. He first found refuge at his brother's house. Jessie Washington, the brother's wife, testified she met Guyon on the porch. Asked about conversation "at that point" she replied: "Well, all he said he had shot the FBI; he had shot the FBI and he shot back, and that was all." Guyon subsequently made his way by bicycle to Youngstown, Ohio, where, after another FBI encounter in which he again escaped under gunfire, he was arrested in a hospital.

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The most important disputes of fact before the jury were whether or not the FBI agents announced who they were before the shooting started, and who fired first. As to the first issue (as noted above), agents on the scene testified that as they entered the door, they were calling out "FBI." In addition, Katherine Little had testified before the Grand Jury that she heard someone say, "All right, Melvin, we are the FBI. We know you are in there; come on out." At trial, however, while she admitted signing a statement to this effect, she sought to disavow it, contending that she had signed it under pressure. Guyon denied hearing the FBI identification. An FBI agent, however, testified that he heard Johnnie Oliver call out the same words testified to by Little before the grand jury. There was also FBI testimony that Guyon subsequent to his arrest stated that he knew the FBI and the police were looking for him.

Guyon took the witness stand in his own defense and testified concerning the shooting of Agent Oliver: "He shot at me and I shot at him." Guyon's bullet went through Oliver's heart and lungs, causing his death. FBI agent Stiller testified that shortly after Guyon's arrest, Guyon gave him a statement in which he "did mention that as he was bringing the weapon up to shoot Oliver, that he thought Preston must have some very heavy friends to have a white guy here after him."

As to the question of who shot first, in addition to Guyon's statement, there was testimony from two FBI agents that they heard a shot from a small calibre weapon and immediately thereafter a shotgun blast and then a number of shots following thereafter. In the light of the District Judge's charge (which we quote below), the jury in returning its first degree murder verdict obviously resolved these fact disputes in favor of the prosecution.

Appellant's brief presents four stated issues--the most important of which we will deal with last. That issue concerns the District Judge's failure to charge upon a manslaughter verdict as requested by Guyon's counsel.

Turning to the first stated issue, a claim of violation of 18 U.S.C. Sec. 3109, it reads as follows:

Sec. 3109. Breaking doors or windows for entry or exit

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

While in its exact language this provision appears to apply to the execution of search warrants, it has also been held to apply to arrest by federal officers for violation of federal law. See Sabbath v. United States, 380 F.2d 108 (9th Cir.1967), rev'd on other grounds, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); United States v. Murrie, 534 F.2d 695, 697 (6th Cir.1976).

Appellant's contention is that the agents' failure to state authority and purpose before entering violated this statute and hence rendered their conduct both unlawful and unauthorized.

It is the government's claim that the exigent circumstances of this case, namely, that Guyon was known to be a fugitive from justice who was the subject of a federal fugitive arrest warrant, who knew that the FBI was looking for him and who was armed and dangerous, justified their entrance into Katherine Little's apartment by ruse and the force which was employed. The government points to the United States Supreme Court's holding in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), where the Court recognized that exigent circumstances might excuse failure to follow the letter of Sec. 3109, if announcement of identity and purpose prior to their entrance would unreasonably imperil the lives of the agents concerned. The government further maintains that whether or not the agents were in technical compliance with this statute, they were still engaged in the performance of their official duties, as set forth in Title 18, Sec. 1114. See

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also Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

We find in the record of this case exigent circumstances which would excuse the entry as made. We also point out that there was testimony from which the jury could have concluded, as it apparently did, that the FBI agents did announce their presence and further that appellant knew who they were. We agree with plaintiff-appellee that the FBI agents who entered the Little apartment were clearly and solely in the performance of their official duties and that under the circumstances their entrance was lawful.

Appellant's second stated issue is that the District Judge gave a fatally erroneous charge on intent and malice. The District Judge's charge in this respect was taken from 1 DEVITT AND BLACKMAR, FEDERAL JURY PRACTICE AND INSTRUCTIONS (3d Ed.1977) Sec. 14.13, as follows:

Intent ordinarily may not be proved directly, because there is no way of fathoming or scrutinizing the operations of the human mind. But you may infer the defendant's intent from the surrounding circumstances. You may consider any statement made by the defendant, and all other facts and circumstances in...

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