United States of America, Plaintiff - Appellee, v. Tommy Lee Poe, Defendant - Appellant.
No. 05-2914
United States Court of Appeals FOR THE EIGHTH CIRCUIT
April 6, 2006
Submitted: January 11, 2006
JOHN R. GIBSON, Circuit Judge.
Tommy Lee Poe appeals from his conviction for being a felon in possession of a firearm, in violation of
I.
At approximately 6:10 a.m. on May 18, 2003, the Bettendorf, Iowa Police Department received a 911 call from Michelle Scott. Scott reported that Poe, her boyfriend, had stolen a weapon from her the previous day and was now standing outside her apartment building. She said she was afraid to go outside, and then told the dispatcher that Poe had entered the basement of her building. Three police officers responded to the scene and entered the basement, where they found Poe standing under the stairs. The officers handcuffed Poe, removed him from the building, and then searched the rest of the basement. They found a yellow plastic bag between some two-by-fours near the water heater, approximately 10 feet from where Poe had been standing. The bag contained a Smith and Wesson .38 caliber revolver and .38 ammunition.
Poe was charged with possessing a firearm on or about May 18, 2003 in violation of
Scott‘s trial testimony presented a different version of events from the one she recounted to the police. She stated that the reason she called the police and denied pulling the gun on Poe was because she was angry that he was leaving her for his ex-wife and she wanted to “hurt him.” She then admitted to pulling her gun out during the argument with Poe in an effort to prevent him from leaving. She testified that Poe grabbed the gun from her, told her she was crazy, and immediately left the apartment. She testified that she saw Poe go down into the basement before leaving, and that Poe later called her to tell her the gun was in the basement. Scott said she tried to correct her story with the police, but was unable to get in contact with Sergeant Fink and was also concerned that she could go to jail for admitting that she pulled the gun on Poe.
At the close of all the evidence, defense counsel again requested an instruction on justification, which the district court denied. The jury returned a verdict of guilty.
II.
A district court has broad discretion when formulating jury instructions, and a defendant is entitled to a requested instruction only if “it correctly states the law and is supported by the evidence.” United States v. Johnson, 278 F.3d 749, 751-52 (8th Cir. 2002). Whether there is sufficient evidence to support the submission of an instruction on an affirmative defense is a question of law which we review de novo. United States v. Hudson, 414 F.3d 931, 933 (8th Cir. 2005).
Although the Eighth Circuit has never recognized justification as a defense to a violation of
(1) that 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 defendant had not “recklessly or negligently placed himself in a situation in which it was probable that he would be [forced to choose the criminal conduct],” (3) that 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 and the avoidance of the [threatened] harm.”
Id. (alterations in original). To be entitled to a jury instruction on a justification defense, a defendant must show “an ‘underlying evidentiary foundation’ as to each element of the defense,” such that a reasonable person could conclude that the evidence supported the defendant‘s position. Hudson, 414 F.3d at 933 (quoting United States v. Kabat, 797 F.2d 580, 590-91 (8th Cir 1986)).
Poe argues that the district court should have instructed the jury on the justification defense because he faced an unlawful, imminent threat when Scott pulled her gun on him such that he had no reasonable alternative but to take it. After reviewing the record, we conclude that we need not reach the issue of whether justification is available as a defense to a violation of
No reasonable jury could find that Poe‘s possession of the gun on the morning of May 18 arose from a present, imminent, and well-grounded apprehension of death or serious bodily injury, because there is no evidence that Scott had threatened Poe that morning. Indeed, as the district court noted, Poe “experienced so little apprehension that he actually considered giving Ms. Scott her firearm back.” In Stover, we held that there was no imminent danger where the defendant seized a gun from his assailant and retained it approximately 10 minutes after the assailant fled the scene. 822 F.2d at 50. Poe was in possession of the gun overnight, long after the threatened harm had subsided. In addition, Poe had reasonable alternatives to possessing the gun on May 18 because he could have disposed of or abandoned the gun at any time after leaving Scott‘s apartment the night before. See Hudson, 414 F.3d at 934; see also United States v. Singleton, 902 F.2d 471, 473 (6th Cir. 1990) (“Corollary to the requirement that the defendant have no alternative to possession of the firearm is the requirement that the defendant get rid of the firearm as soon as a safe opportunity arises.“).
We affirm Poe‘s conviction.