Gov't of the Virgin Islands v. Lewis

• Decision Date: 08 September 2010
• Docket Number: No. 09–3245.,09–3245.
• Citation: 54 V.I. 882
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Michael LEWIS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

54 V.I. 882

GOVERNMENT OF the VIRGIN ISLANDS

v.Michael LEWIS, Appellant.

No. 09–3245.

United States Court of Appeals, Third Circuit.

Argued May 3, 2010.

Filed Sept. 8, 2010.

OPINION TEXT STARTS HERE

David J. Cattie, Esq. (Argued), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., St. Thomas, VI, for Appellant.

Ernest Bason, Esq., Richard S. Davis, Esq., (Argued), Office of the Attorney General of the Virgin Islands, Department of Justice, Charlotte Amalie, St. Thomas, VI, for Appellee.

OPINION

CHAGARES, Circuit Judge.

Michael Lewis was convicted of unlawful possession of a firearm in the Territorial Court of the Virgin Islands, and was sentenced to fifteen years in prison. He appealed to the District Court of the Virgin Islands, Appellate Division, which affirmed the conviction and sentence. He now appeals to this Court, arguing principally that the trial court committed plain error by failing, sua sponte, to instruct the jury on the affirmative defense of justification. For the reasons that follow, we disagree. We will affirm the conviction without prejudice to Lewis's right to challenge his trial counsel's effectiveness in a collateral proceeding.

I.

This case revolves around the fatal shooting of Mackellis George. At approximately 2:15 a.m. on September 29, 1998, Lewis drove to the Callwood Command police station on the island of St. Thomas and began yelling to Lieutenant Randolph DeSuza that someone had just shot his friend. DeSuza approached and discovered George, lying bloodied and fully reclined in the passenger seat of the car that Lewis was driving. DeSuza directed Lewis to follow him to a nearby hospital. Upon their arrival, DeSuza contacted George's family to inform them of the shooting.

At the hospital, Lewis told DeSuza and George's family that George had been shot in a drive-by shooting, but Lewis gave conflicting details about the incident. He first claimed that he had not seen the color or make of the vehicle the shooter had driven. He later claimed that the color of the shooter's car was white. Still later, he said that it was blue. Lewis's uncle, who was at the hospital, told police that his nephew obviously was lying, and suggested that his hands be checked for gunpowder—whereupon Lewis doused his hands with rubbing alcohol sitting on a nearby table. Meanwhile, a police officer overheard Lewis's grandmother mention that Lewis had shot and killed a dog earlier in the day. The dog's body was recovered, and forensic tests ultimately showed that George and the dog had been shot by the same gun. George died from the gunshot wounds.

Lewis was charged in a two-count information with first-degree murder, in violation of V.I.Code Ann. tit. 14, § 922(a), and unlawful possession of a firearm, in violation of V.I.Code Ann. tit. 14, § 2253(a). He testified in his own defense, proffering yet another version of events, which was as follows. Days before the shooting, George provided Lewis with a drink that caused him to fall asleep at George's residence. Lewis awoke to find George lying behind him, sexually assaulting him. Although he tried to avoid George after that incident, Lewis went to George's residence on the evening of September 28 to collect some of his personal belongings. When he arrived, George became enraged, accusing Lewis of telling others that he (George) was a homosexual. George pulled out a firearm, began “bursting” shots into the ground, and then, pointing the gun at Lewis, ordered him to get into the passenger's seat of George's car. Appendix (“App.”) 939.

Lewis testified that George began to drive, and at some point started insulting him and “pushing” the gun repeatedly into his (Lewis's) head. In response, Lewis testified, he grabbed for the gun and a struggle ensued. He claimed that the gun fired several times during the struggle, but that he ultimately gained control of it and shot George in self-defense. Lewis testified that he then put George in the passenger's seat. After “a while,” Lewis noticed that George “look[ed] ... dead” and that his shirt had ripped. App. 946–47. According to his testimony, this caused him to realize that others would want to know why George's shirt had been ripped. Consequently, he stopped at a roadside “garbage pan” and discarded the gun and George's shirt. App. 947–48. He then proceeded to the police station and, ultimately, the hospital. Lewis admitted at trial that he fabricated the phony drive-by shooting story because he did not think anyone would believe that he had shot George in self-defense.¹

At the close of trial, the Government and Lewis submitted proposed jury instructions to the trial court. Lewis specifically requested that a self-defense instruction be given to the jury with respect to the murder charge, but did not request that a justification instruction be given with respect to the unlawful possession charge. The trial court instructed the jury as Lewis requested. The jury thereafter acquitted Lewis of murder but convicted him of unlawful possession of a firearm, and the trial court sentenced him to fifteen years in prison. The Appellate Division affirmed the conviction and sentence, and Lewis filed this timely appeal.²

II.

Lewis argues that his conviction for unlawful possession of a firearm ³ must be vacated because the trial court failed to instruct the jury on the affirmative defense of temporary justified possession. He premises this argument on his theory that he possessed the gun only long enough to defend himself in the car. Thus, he argues, the jury should have been instructed to consider whether his possession of the firearm was a legal necessity. Lewis concedes that he did not request the trial court to give the instruction that he now claims was required, so we review only for plain error. Gov't of V.I. v. Fonseca, 274 F.3d 760, 765 (3d Cir.2001).⁴

The plain error “standard is met when there is an ‘error’ that is ‘plain’ and that ‘affects substantial rights.’ ” United States v. Wolfe, 245 F.3d 257, 261 (3d Cir.2001) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see alsoFed.R.Crim.P. 52(b). A court's deviation from a legal rule constitutes “error.” United States v. Turcks, 41 F.3d 893, 897 (3d Cir.1994). A “plain” error is one that is “clear” or “obvious.” Id. An error “affects substantial rights” if it was prejudicial—that is, if it affected the outcome of the trial proceedings. Id. Even if this standard is satisfied, Rule 52(b) leaves “the decision to correct the forfeited error” to our discretion. United States v. Tann, 577 F.3d 533, 535 (3d Cir.2009). We exercise that discretion “sparingly,” and will correct the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id.

We first consider whether the trial court erred by failing, sua sponte, to instruct the jury on the affirmative defense of justification. “As a general proposition, ‘a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.’ ” Gov't of V.I. v. Isaac, 50 F.3d 1175, 1180 (3d Cir.1995) (quoting Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)). We must, therefore, view the facts “in the light most favorable to” Lewis and “determine whether there was evidence presented to support the theory of justification....” United States v. Paolello, 951 F.2d 537, 539, 542 (3d Cir.1991).⁵

Our decision in Paolello is of central importance here, so we discuss the case in some detail. The defendant, Paolello, was involved in a physical altercation with another person outside a bar. Nearby police officers heard a gunshot and, upon approach, they heard a bystander yell, “he's got a gun.” Id. at 538. Moments later, the officers saw Paolello run into an alley. They gave chase, and saw that Paolello had a pistol in his hand. One of the officers yelled, “freeze, police,” and at some point thereafter Paolello stopped, turned around, and threw his weapon to the ground. Id. He was apprehended and charged with being a felon in possession of a firearm, and he requested at trial that the jury be instructed on the defense of temporary justified possession.

Paolello, along with his stepson, testified that he (Paolello) had been accosted by another man upon leaving the bar, and that the man had a gun. Paolello testified that the man punched his stepson in the face, fired a shot into the air, and that a struggle then followed. Paolello testified that he was able to knock the gun from the man's hand, at which time he grabbed it to avoid being shot, and then ran. He claimed that he immediately released the gun when he realized that police officers were behind him. The district court denied the requested justification instruction and the jury found Paolello guilty.

We vacated the conviction. We adopted a four-part test to determine whether a justification defense is available to a defendant charged under § 922(g) with unlawfully possessing a firearm. To meet this test, we explained, the evidence must demonstrate that a jury reasonably could conclude the following: (1) that the defendant was under an unlawful and present threat of death or serious bodily injury; (2) that he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that he had no reasonable legal alternative to both the criminal act and the avoidance of the threatened harm; and (4) that there was a direct causal relationship between the criminal act and the avoidance of the threatened harm. Paolello, 951 F.2d at 540–41.

We also explained that the test should be applied restrictively, requiring a “defendant [to] meet a high level of proof to establish the defense of justification.” Id. at 542;accord United States v. Alston, 526 F.3d 91, 94–95 & n. 5 (3d Cir.2008) (noting that the justification defense is “rarely granted” and “should be construed narrowly”). In...