U.S. v. Willis

• Decision Date: 07 November 1994
• Docket Number: No. 93-5484,93-5484
• Citation: 38 F.3d 170
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kathy Evelyn WILLIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 170

38 F.3d 170

63 USLW 2324

UNITED STATES of America, Plaintiff-Appellee, v. Kathy Evelyn WILLIS, Defendant-Appellant.

No. 93-5484.

United States Court of Appeals, Fifth Circuit.

Nov. 7, 1994.

Rehearing Denied Dec. 20, 1994.

John Kermit Hill, Hill, Ellis, Walker, Hill & Shea, Sherman, TX (court-appointed), for appellant.

Traci L. Kenner, Asst. U.S. Atty., Tyler, TX, Bob Wortham, U.S. Atty., Beaumont, TX, Clifford Stricklin, Sp. Asst. U.S. Atty., Sherman, TX, for appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before JOHNSON, HIGGINBOTHAM and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

Appellant Kathy Evelyn Willis was convicted on a jury verdict for carrying a firearm during, and in relation to, the commission of a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1). She now appeals, assigning as error the trial court's exclusion of certain expert testimony concerning the battered woman's syndrome which she contends was relevant to her defense of duress. Also, Willis argues that the trial court erred in denying her motion for acquittal and in instructing the jury on her duress defense. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

In the fall of 1992, Officer Debbie Bond, working undercover for the Collin Area Narcotics Task Force, contacted Willis in an attempt to set up a narcotics transaction. The women exchanged pager numbers. On October 20, 1992, Willis paged Bond and arrangements were made to meet at a local restaurant in Plano.

Willis arrived at the restaurant in a maroon Mercury Cougar with a man, later identified as David Perez, in the passenger seat. Willis then got into Bond's car while Perez remained in the Cougar. At that time, Willis sold Bond 1/4 pound of marijuana for $375. Also during that transaction, the women discussed a later purchase of approximately ten pounds of marijuana in a couple of days.

The following evening, Willis contacted Bond and set up a meeting on the next day for a transaction involving four pounds of marijuana, which was all that Willis could acquire. This meeting was set for 2:00 p.m. on October 22 at a local Denny's restaurant. Both women said that they would be alone.

Surveillance of the restaurant revealed, however, that Willis arrived with Perez. As an informant had told the police that Perez always carried a gun, the officers decided to wait until Willis and Perez just got nervous and left the restaurant on their own. After about 45 minutes, Willis contacted Bond by phone and Bond made up the story that she had seen a police car pass nearby and that they should meet at a gas station a few blocks away.

Willis testified that when she came back from talking to Bond and told Perez what Bond had said, he replied that the police were already there. Further, according to Willis, Perez took a gun out of his pants and put it into her purse. The couple then proceeded into the parking lot and toward their car.

The police arrested Willis and Perez in the parking lot. ¹ Willis made no violent moves to resist the arrest, nor did she make any attempt to get into her purse. Moreover, after she was on the ground and handcuffed, Willis told the officer who subdued her that there was a gun in her purse. ² The officer then removed a loaded Lorcin .380 semi-automatic pistol from the handbag. ³

Willis was indicted for carrying a firearm during, and in relation to, the commission of a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1). Subsequently, she was brought before the U.S. Marshal for interrogation. During that interview, Willis signed a statement admitting that she and Perez planned to sell the four pounds of marijuana to Bond at the Denny's. The statement also declared that the gun that was found in her purse belonged to Perez and that he had placed it in her purse as they were leaving the restaurant. Lastly, Willis explained in this statement that Perez had brought the gun to protect the drug transaction but that he did not want to be caught with the gun because he was a convicted felon and was not allowed to possess a firearm.

At trial, Willis raised the defense of duress. She related that she greatly feared Perez because of the beatings she had received at his hands in the past. Accordingly, Willis argued that she believed that if she had protested when he put the gun in her purse, he would have beaten her right there in the restaurant. As a result of this fear, Willis contended that she did not knowingly, intentionally or voluntarily carry or use the firearm, but rather did so only under duress.

The district court permitted Willis substantial latitude in introducing evidence to support her theory that she was actually in fear for her life when she committed the acts in question. Six witnesses, including two Dallas police officers, were called to testify about Perez's violent nature and Willis' fear of him. In addition, Willis called Dr. James Harrison, a clinical psychologist, to testify as to his conclusions and evaluations regarding Willis. Harrison testified that Willis had been the victim of a pattern of abuse that had its origin in a dysfunctional family wherein both of Willis' parents were alcoholics. This led to abuse by both Willis' mother and a series of stepfathers. This pattern of abuse continued through two marriages ⁴ to abusive men and escalated during the violent relationship with David Perez.

In addition to testifying about specific acts of violence against Willis, Harrison testified about her mental state. He stated that Willis was in a great deal of emotional turmoil and showed signs of anxiety and depression. Moreover, she was constantly experiencing tension due to a strong desire to be loved and a very intense fear that she might be harmed or humiliated in a relationship. Accordingly, Dr. Harrison testified that Willis' relationships fell into a very clear sort of classical pattern of a battered woman syndrome and an abusive relationship.

The prosecution objected to this testimony, however. The district court sustained this objection and instructed counsel that it would not hear any more testimony about the battered woman's syndrome. ⁵ Even so, Dr. Harrison did go on to testify that Willis was terribly afraid of Perez and would basically do anything that he wanted so as to keep any further violence away.

The district court instructed the jury on the defense of duress. The jury rejected this defense, though, and found Willis guilty of the charged offense. Accordingly, the district court sentenced Willis to the mandatory sentence of five years' imprisonment required under 18 U.S.C. Sec. 924(c)(1) followed by a two-year period of supervised release. Willis timely appealed.

DISCUSSION

I. DURESS AND THE BATTERED WOMAN'S SYNDROME

Willis' main argument on appeal is that the district court erred in excluding Dr. Harrison's testimony concerning the battered woman's syndrome in connection with her defense of duress. We review a district court's exclusion of expert testimony for an abuse of discretion. United States v. Triplett, 922 F.2d 1174, 1182 (5th Cir.), cert. denied, 500 U.S. 945, 111 S.Ct. 2245, 114 L.Ed.2d 486 (1991). Even if abuse is found, the error may be harmless. The test is "whether the trier of fact would have found the defendant guilty beyond a reasonable doubt with the additional evidence inserted." United States v. Roberts, 887 F.2d 534, 536 (5th Cir.1989), quoting United States v. Lay, 644 F.2d 1087, 1091 (5th Cir. Unit A), cert. denied, 454 U.S. 869, 102 S.Ct. 336, 70 L.Ed.2d 172 (1981).

The argument made by Willis herein compels this Court to consider the place of battered woman syndrome evidence to a duress defense to criminal liability. The duress defense is a common law concept that federal criminal law has incorporated. See United States v. Bailey, 444 U.S. 394, 409-10, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980). Under this defense, otherwise criminal behavior may be excused under narrow circumstances. To succeed with this defense, the defendant must show:

1. that the defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury;

2. that the defendant had not recklessly or negligently placed herself in a situation in which it was probable that she would be forced to choose the criminal conduct;

3. that the defendant had no reasonable legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm; and

4. that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm.

United States v. Liu, 960 F.2d 449, 453 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992); United States v. Harper, 802 F.2d 115, 117 (5th Cir.1986); United States v. Gant, 691 F.2d 1159, 1162-63 (5th Cir.1982).

These requirements are addressed to the impact of a threat on a reasonable person. The fear of death or serious bodily injury must be "well-grounded." There must be no "reasonable" alternative to violating the law. This objective formulation is in harmony with the analysis of duress in the Model Penal Code which recognizes duress as a defense if the threat of the use of unlawful force is such "that a person of reasonable firmness in his [or her] situation would have been unable to resist." American Law Institute, Model Penal Code Sec. 2.09(1) (1985); see also Gant, 691 F.2d at 1161-62, n. 3.

Evidence that the defendant is suffering from the battered woman's syndrome is inherently subjective, however. Such evidence is not addressed to whether a person of reasonable firmness would have succumbed to the level of coercion present in a given set of circumstances. Quite the contrary, such evidence is usually consulted to explain why this particular defendant succumbed when a...