U.S. v. Newcomb

Decision Date07 October 1993
Docket NumberNo. 92-1529,92-1529
Citation6 F.3d 1129
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harold M. NEWCOMB, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Jennifer J. Peregord (argued and briefed), Charles F. Holman, III, Office of the U.S. Atty., Detroit, MI, for plaintiff-appellee.

Jonathan Epstein (argued and briefed), Rafael C. Villarruel, Federal Public Defenders Office, Detroit, MI, for defendant-appellant.

Harold M. Newcomb, pro se.

Before: MILBURN, RYAN, and NORRIS, Circuit Judges.

RYAN, Circuit Judge.

Harold M. Newcomb appeals from the judgment of conviction entered against him following a jury trial on two firearms-related counts. He argues that the district court's jury instructions warrant reversal because they failed to adequately instruct the jury on his theory that he was justified in possessing a firearm and ammunition. We agree, and for the reasons discussed below, we reverse.

I.

Harold Newcomb was indicted in May 1991 on one count of possession of an unregistered firearm, in violation of 26 U.S.C. Sec. 5861(d), and one count of being a felon in possession of ammunition, in violation of 18 U.S.C. Sec. 922(g)(1). The firearm was a sawed-off Remington .12 gauge shotgun with a 13-inch barrel and an overall length of 24 inches, and the ammunition consisted of four .12 gauge shotgun shells.

At trial, the witnesses for the government and for the defendant had slightly different versions of events on the night in question. Detroit Police Department Officer Thomas Boyle testified that he was patrolling the neighborhood of Woodward and Lawrence Streets the evening of May 5, 1991, when he saw two men and one woman standing in the entrance to an alley. As he drove toward them, the three began walking down the alley. The taller of the three was walking a couple of steps behind the other two. When Boyle drove into the alley, the three were approximately 30 yards in front of him. He saw the taller man put a dark object, approximately two feet long, into a couch that had been abandoned in the alley. Boyle identified Newcomb as that taller man. About ten seconds later, Boyle got out of his car and asked the three to stop. Boyle performed a pat-down of the defendant, and found four .12-gauge shotgun shells in his right coat pocket. Boyle returned to the couch, and observed the butt of a .12-gauge sawed-off shotgun sticking out about five inches from underneath a cushion in the couch. He then arrested Newcomb.

The defendant's theory of the case at trial argued a justification defense for his possession of the gun. According to the testimony of the defense witnesses, 1 Newcomb was watching television at the home of his girlfriend, Betty Benson, when she entered the room and told him that her son had just grabbed a gun and run outside, threatening to kill someone. Betty, her brother Darnell, and Newcomb left the apartment in search of Louis Benson, Betty's son. They were fearful that he would in fact harm someone, because he had shot people in the past. 2 Newcomb acknowledged that he had no fear of personal harm, because he felt protected by the presence of Louis's mother and brother; he felt, however, an obligation to prevent Louis's imminent violence toward an unknown third party.

According to Newcomb's evidence, he, Betty, and Darnell caught up with Louis in the alley. Louis, after an argument, handed his gun over to Newcomb. Newcomb unloaded the gun and put the shells in his pocket. Testimony differed over whether Louis then grabbed the gun from Newcomb or whether Newcomb then returned the gun to Louis. In either event, Louis next headed back down the alley, and discarded the now-useless gun by putting it in the couch. Heading back toward the apartment, apparently in search of another weapon, Louis declared, "Well, that's all right, I'm still going to get the motherf* * *er. I got something else." Newcomb tried unsuccessfully to catch Louis, and then rejoined Betty and Darnell in the alley. It was at this point, according to the defense, that the police arrived and arrested Newcomb.

The defendant requested that the jury receive a number of instructions, two of which are at issue in this case:

DEFENDANT'S REQUESTED JURY INSTRUCTION NO. 6

Necessity

One of the issues in this case is whether the Defendant acted out of necessity. Necessity occurs when circumstances beyond one's control force him to commit a criminal act. The defense of necessity is available when a defendant is faced with a choice of two evils and finds himself in a position where he must violate the law because it is the lesser of two evils. A defendant who acts out of necessity must be found not guilty.

If the defendant committed the offense charged only because he reasonably feared that immediate, serious, bodily harm or death could be inflicted upon himself or another if he did not commit the offense, and he had no other reasonable opportunity to avoid that harm, then he acted out of necessity.

The government has the burden of proving that the defendant did not act out of necessity. Unless the government proves beyond a reasonable doubt that defendant did not act out of necessity, you must find him not guilty.

....

DEFENDANT'S REQUESTED JURY

INSTRUCTION NO. 7

Theory of Defense

....

The defense says Mr. Newcomb acted out of necessity. Mr. Newcomb argues that he acted in taking the firearm away from Louis Benson and removing the shotgun shells to avoid a greater harm or evil to society, that being an assault and possibly a murder. Mr. Newcomb acted at the behest of Louis Benson's mother, Betty Benson, who pleaded with Mr. Newcomb to stop her son from commiting [sic] a criminal act that would ruin his life. Mr. Newcomb believes that because of the situation that was unfolding before him he had to act quickly and choose between stopping this armed and angry young man and violating the law by temporarily possessing the firearm and ammunition and that he chose the lesser of two evils.

Following the close of the evidence, the district court refused to give an instruction like Defendant's Requested Jury Instruction No. 6, reasoning that "[i]t's per se illegal, per se contrary to the law for a person convicted of a felony to have in his possession a gun. There can be no innocent possession." The court consented, however, to instruct the jury generally on the defendant's theory of the case. The instructions, in relevant part, were as follows:

[T]he defendant in this case contends that he acted only because of the circumstances in which he found himself on that particular evening. He contends that he acted, in taking the firearm away from one Louis Benson and removing the shotgun shells, in order to avoid greater harm or evil; that being his belief and knowledge, that Louis Benson was about to commit an assault and a possible murder. He contends, in other words, ... that he acted at the behest of Mrs. Newcomb [sic] when she asked that he stop her son from committing a criminal act that would ruin his life. Defendant contends that because of the situation that was developing and had developed, he had to act quickly and he acted without any intent to violate the law.

The court also instructed the jury "that the length of time that an individual possesses any particular firearm or ammunition is immaterial. The offense is made out if the possession is just for a very, very brief, brief time."

The jury convicted Newcomb on both counts. He was sentenced to 51 months' imprisonment and two years' supervised release on each count, to be served concurrently. Newcomb timely appeals.

II.

This court reviews the jury charge as a whole to determine whether it fairly and adequately submits the issues and the law to the jury. United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.1991). A refusal to give requested instructions is reversible error only if (1) the instructions are correct statements of the law; (2) the instructions are not substantially covered by other delivered charges; and (3) the failure to give the instruction impairs the defendant's theory of the case. Id. Although a jury instruction " 'should not be given if it lacks evidentiary support or is based upon mere suspicion or speculation,' " United States v. James, 819 F.2d 674, 675 (6th Cir.1987) (citation omitted), so long as there is even weak supporting evidence, "[a] trial court commits reversible error in a criminal case when it fails to give an adequate presentation of a theory of defense." United States v. Plummer, 789 F.2d 435, 438 (6th Cir.1986).

III.

Newcomb contends that the court refused to adequately instruct the jury on his theory of the case--that is, that Newcomb was justified in breaking the law--and that this failure constitutes reversible error. The court's summary of Newcomb's theory was inadequate to instruct the jury, he argues, because it failed to articulate the law of justification and failed to offer the defense as a basis for acquittal.

A.

The government initially argues that the particular jury instruction submitted by the defendant contains an erroneous statement of law, because it assigned to the government "the burden of proving ... that Newcomb did not act out of necessity." It reasons that it cannot, therefore, be reversible error for the district court to have elected not to give the instruction.

The government is correct only insofar as it points out the error of law; it was not the government's burden to prove beyond a reasonable doubt that the defense did not apply to this case. SeeUnited States v. Wolak, 923 F.2d 1193, 1198 (6th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991). But the government misinterprets the dictate of Williams and other cases--in which the court stated that a district court's "refusal to deliver a requested instruction is reversible only if that instruction is ... a correct statement of the law," Williams, 952 F.2d at 1512--...

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