U.S. v. Deon

• Decision Date: 14 August 1981
• Docket Number: No. 80-2048,80-2048
• Citation: 656 F.2d 354
• Parties: UNITED STATES of America, Appellee, v. Earl Louis DEON, a/k/a Sonny Deon, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 354

656 F.2d 354

UNITED STATES of America, Appellee, v. Earl Louis DEON, a/k/a Sonny Deon, Appellant.

No. 80-2048.

United States Court of Appeals Eighth Circuit.

Submitted May 22, 1981.

Decided Aug. 14, 1981.

Ted L. McBride, Asst. U. S. Atty., Rapid City, S. D., for appellee.

Ann C. Jones, argued, Banks & Johnson, a Professional Corporation, Rapid City, S. D. (court-appointed), Terry L. Pechota, U. S. Atty., Ted L. McBride, John J. Ulrich, Asst. U. S. Atty., Rapid City, S. D., argued for appellant.

Before GIBSON, Senior Circuit Judge, ARNOLD, Circuit Judge, and McMANUS, District Judge. ^*

PER CURIAM.

Earl Louis Deon appeals from his conviction, pursuant to 18 U.S.C. § 1153 and 18 U.S.C. § 113(f), for assault resulting in serious bodily injury. Deon raises three points on appeal: (1) that the trial court ¹ should have directed a verdict in his favor, (2) that the trial court gave the wrong jury instruction on the issue of self-defense, and (3) that the trial court improperly determined as a matter of law that a shooting had occurred, at Pine Ridge, South Dakota, rather than leaving that factual inquiry, regarding the crime charged, to the jury. We affirm.

The facts established at trial revealed that on or about April 11, 1980, sometime after midnight, Chanfield Folson was shot, once in the left side and once in the back, while he was staying at his mother's house on the Pine Ridge Indian Reservation.

On the night in question, Mr. Folson heard some disturbance outside the house. He went out to investigate and saw Deon, with a gun. At that point Deon said he was looking for a Jerry Richards. Apparently Folson became angry at Deon for bringing a gun to his residence. Folson took the gun away from Deon.

Folson could not recall what happened next; Deon did not testify at trial; and there were no other witnesses to the events which ensued. Folson did testify that he was angry and that he sometimes gets physically violent when he gets angry. He testified that he might have struck Deon.

Folson remembered returning the gun to Deon. At that point, while the two were standing several feet apart from each other, Deon shot Folson. Folson then turned and began to run away. He was shot again, this time in the back.

Deon contends that Folson's testimony about having possibly struck Deon raised the issue of self-defense and thereby shifted the burden to the Government to prove beyond a reasonable doubt that Deon did not act in self-defense. Deon concedes that the district court "recognized the appropriate rule of law concerning the burden of proof on the issue of self-defense" but argues that the court "did not correctly apply this rule when considering the Defendant's Motion for a Directed Verdict." Appellant's brief at 8. Deon avers that there was no evidence presented on the issue of self-defense once the burden on the issue had shifted to the Government and that, thus, a verdict should have been directed in his favor.

Initially, we note that we "must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision." Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978) (citation omitted). We would be at liberty to reverse only if the prosecution had clearly failed to produce sufficient evidence. Id. There was no such failure in this case.

From the evidence, the jury could have reasonably inferred that, at the time of the first shot, Deon was not being threatened with injury from Folson, or that, even if Deon was threatened, the force Deon used in retaliation was excessive, or that the fact that Folson was shot in the back indicated that Deon was not acting in self-defense.

The verdict may be based in whole or in part on circumstantial evidence. The evidence need not exclude every reasonable hypothesis except that of guilt; it is sufficient if there is substantial evidence justifying an inference of guilt as found irrespective of any countervailing testimony that may have been introduced. If so, the issue of guilt or innocence has been properly submitted to the jury for its determination, and the motion for judgment of acquittal is properly denied. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Knife, 592 F.2d 472, 475 (8th Cir. 1979); United States v. Robinson, 71 F.Supp. 9, 10 (D.D.C.1947).

United States v. Lincoln, 630 F.2d 1313, 1316-17 (8th Cir. 1980).

Deon next contends that the jury instruction on the issue of self-defense was improper. The paragraph which he proposed and which was not given reads as follows:

A person who has been attacked and who is exercising his right of lawful self-defense is not required to retreat, and he not only may stand his ground and defend himself against the attack, but may also pursue his assailant until he has secured himself from danger if that course appears to him, and would appear to a reasonable person in the same situation, to be reasonably and apparently necessary; and this is his right even though he might more easily have gained safety by withdrawing from the scene.

The challenged portion of the self-defense instruction which was given states:

A person who has reasonable ground for believing, and does believe, that another person is about to inflict bodily injury upon him, need not retreat, but may stand his ground and defend the integrity of his person; and where in such self-defense of his person he injures his assailant, the law holds there is legal justification, provided he used no more or greater force or means than he in fact believed to be reasonably necessary, and would appear to a reasonable person, under like circumstances, to be necessary in order to prevent bodily injury to himself.

Deon argues that he was denied his right to have the jury instructed on his theory of the case, when...