U.S. v. Toney

• Decision Date: 24 June 1994
• Docket Number: No. 93-2809,93-2809
• Citation: 27 F.3d 1245
• Parties: 39 Fed. R. Evid. Serv. 1173 UNITED STATES of America, Plaintiff-Appellee, v. William V. TONEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1245

27 F.3d 1245

39 Fed. R. Evid. Serv. 1173

UNITED STATES of America, Plaintiff-Appellee, v. William V. TONEY, Defendant-Appellant.

No. 93-2809.

United States Court of Appeals Seventh Circuit.

Argued March 2, 1994.

Decided June 24, 1994.

Bradley W. Murphy, Asst. U.S. Atty., Peoria, IL, (argued), for plaintiff-appellee.

Rodney R. Nordstrom, Peoria, IL (argued), for defendant-appellant.

Before POSNER, Chief Judge, and CUMMINGS and MANION, Circuit Judges.

MANION, Circuit Judge.

A jury found William Toney guilty of possession of a firearm by a felon, see 18 U.S.C. Secs. 922(g), 924(a)(2), and the court sentenced him to three hundred and ten months in prison. On appeal, Toney challenges the jury instruction on coercion and the admission under Fed.R.Evid. 609(a) of his two prior convictions. We affirm.

I. Facts

On August 29, 1992, despondent and possibly contemplating suicide, Julie Shults went alone to the De-Rail's tavern in Galesburg, Illinois. She was soon joined by the defendant, William Toney. Sometime thereafter, an officer of the Galesburg Police Department responded to a disturbance call from a patron at the tavern: a fight had broken out in the parking lot and a gun had been fired. When the officer arrived at the tavern, he saw Toney walking down the street dragging Ms. Shults by the hair. The officer ordered the two to stop, at which point Toney threw Shults down, turned toward the officer with a gun in his hand and aimed the gun at the officer. After a struggle during which Toney tossed the gun into the weeds, Toney was arrested.

At trial, Toney chose to testify in his defense. Toney conceded his possession of the gun but raised the defense of coercion. In his opening statement, the defense attorney told the jury that Toney took the gun to prevent his girlfriend from committing suicide. Toney had followed Shults to the tavern. The two had already consumed a large quantity of alcohol that day and continued to drink heavily at the bar. A verbal altercation between the two ensued. At some point thereafter, Shults expressed her intent to commit suicide and opened her purse to reveal the gun. Toney immediately seized the gun and placed it in his trousers for safety. He then tried to convince Shults to leave. The two fought and Toney forcibly pulled Shults from the tavern. The struggle continued in the parking lot until Toney fired a single shot in the air. The police officers arrived shortly thereafter.

Toney maintains that he took possession of the gun to prevent Shults from committing suicide and for his own safety during what he describes as a "crisis" situation. His proposed theory of defense instruction included fear for his own safety as well as for others. The district court, however, limited the coercion instruction to prevention of suicide:

One of the issues in this case is whether the defendant was coerced. A defendant who has been coerced must be found not guilty.

If the defendant committed the offense charged only because he reasonably feared that immediate, serious bodily harm or death would be inflicted upon others if he did not commit the offense, and he had no reasonable opportunity to avoid the injury, then he was coerced.

The burden of proof is on the government to prove beyond a reasonable doubt the absence of coercion.

The fear of suicide of another is not a sufficient basis for coercion, unless the defendant took reasonable alternative steps to avoid the suicide. ¹

Toney cites three errors by the court: (1) by excluding self-defense the court limited his theory of defense to prevention of suicide; (2) the court gave an impermissible "reasonable steps" instruction; and (3) the court admitted into evidence his two prior convictions.

II. Analysis

A.

A defense of coercion, or duress as it is sometimes called, requires the establishment of three elements: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to avoid the threatened harm. See United States v. Tanner, 941 F.2d 574, 587 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 432 (1992); see also United States v. Santos, 932 F.2d 244, 249 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 592, 116 L.Ed.2d 617 (1991); United States v. Scott, 901 F.2d 871, 873 (10th Cir.1990); United States v. Charmley, 764 F.2d 675, 676 (9th Cir.1985). In other words, the defendant must have been under such duress that he had no alternative but to commit the crime in order to avoid the greater harm. As a prerequisite for presenting the defense of coercion to the jury, the defendant must produce sufficient evidence such that a rational jury could infer that he was coerced into committing the crime charged. Tanner, 941 F.2d at 587. The defendant does not, however, have to prove coercion. He is entitled to an instruction on the defense so long as he has produced "some foundation ... even though such evidence may be weak, insufficient or of doubtful credibility." Id. (quoting United States v. Patrick, 542 F.2d 381, 386 (7th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977)) (emphasis added).

Once the defendant meets this initial and threshold evidentiary burden he is entitled not only to an instruction on coercion but also a so-called "coercion-negation" instruction:

The burden of proof is on the government to prove beyond a reasonable doubt the absence of coercion.

The defendant is presumed coerced, therefore presumed innocent, unless the government disproves coercion beyond a reasonable doubt. See Johnson v. United States, 291 F.2d 150, 158 (8th Cir.), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961) (cited in Federal Jury Instructions for the Seventh Circuit, No. 4.05, pg. 61 (1980)); cf. United States v. Norton, 846 F.2d 521, 524-25 (8th Cir.1988) (failure to give negation instruction amounts to harmless error where coercion is raised as an affirmative defense).

A defendant in a criminal case is entitled to a particular theory of defense if he satisfies four requirements: (1) the defendant proposes a correct statement of the law; (2) the defendant's theory is supported by the evidence; (3) the defendant's theory of defense is not part of the charge; (4) the failure to include an instruction on the defendant's theory of defense would deny the defendant a fair trial. United States v. Douglas, 818 F.2d 1317, 1320-21 (7th Cir.1987). Toney tendered an instruction that included two alternatives to the coercion defense, harm to "him or others," meaning self-defense or suicide prevention. The district court determined that the government had not had adequate notice of Toney's intention to use the self-defense component of the coercion instruction. The district court thus limited the evidence to that supporting the suicide defense. Applying the Douglas four-prong test to the evidence and legal theories on trial, we conclude that Toney was not entitled to have his instruction presented to the jury. While Toney's proposed instruction is a correct statement of the law, see Federal Jury Instructions for the Seventh Circuit, No. 4.05 (1980), it is not supported by the evidence. At no point did Toney testify that he took the gun away from Shults to protect himself, nor did defense counsel allude to self-defense in his opening or closing arguments. Accordingly, Toney was entitled only to an instruction limited to harm to others.

Toney asserts that the court's refusal to include the self-defense language denied him a fair trial. The issue Toney is really raising, however, is his objection to the district court's evidentiary ruling barring testimony on self-defense. The district court limited the instruction to suicide because at the end of trial the court found that Toney's theory of the case did not include self-defense nor did the evidence support self-defense. This finding, however, was the direct result of the court's evidentiary ruling, made mid-trial, that Toney could not present evidence that he had acted in self-defense because he had not timely notified the government of the self-defense component of his defense. When making this ruling, the court stated that if Toney wished to proceed with the self-defense prong of the coercion defense a mistrial would be called. Toney agreed to proceed solely on the suicide prong and to limit the evidence accordingly.

To the extent that Toney now argues that the district court erred in this ruling, he has waived this issue by failing to object at trial. United States v. Angulo, 864 F.2d 504, 507 (7th Cir.1988). Moreover, on appeal he neither properly identifies any objection regarding the evidentiary ruling nor supports his argument with the applicable law. See Fed.R.App.P. 28(a)(5); Varhol v. National Railroad Passenger Corp., 909 F.2d 1557, 1566 (7th Cir.1990) (claim is waived on appeal when it is not supported by citation to relevant authorities); Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir.1986), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987).

In fact, it appears that the district court's ruling may have been in error. The facts surrounding the evidentiary ruling are as follows. During Toney's direct testimony, the judge requested a sidebar to clarify whether the defense was asserting coercion or necessity. Although Toney had filed a Federal Rule 12(b) statement with the court notifying the government that the defendant intended to raise "the defense of necessity, duress or justification," there was no proof that the government had received the statement. Both parties agreed, however, that the defense had notified the government by memorandum of its intention to raise those defenses. The parties had met and discussed the defenses, going so far as to look up jury instructions and find only a single applicable instruction couched in terms of coercion. See Federal Jury Instructions of the Seventh Circuit, No....