United States v. Poole ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4231
DWIGHT BRADSHER POOLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-97-221)
Submitted: November 24, 1998
Decided: December 31, 1998
Before MURNAGHAN, NIEMEYER, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Walter T. Johnson, Jr., Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Lisa B. Boggs, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dwight Bradsher Poole appeals from his conviction of possession
of a firearm by a convicted felon, in violation of 18 U.S.C.A.
§ 922(g)(1) (West Supp. 1998). The only issue he presents on appeal
is whether the district court erred in granting the government's motion
in limine to preclude Poole from introducing evidence of previous
attacks on his life, which he asserts provided a justification defense
to the firearm offense. Finding no error, we affirm.
On July 3, 1997, having obtained an arrest warrant for Poole and
a search warrant for his residence, deputies from the Orange County
Sheriff's Department set up surveillance to attempt to locate Poole.
Deputy George Snowden observed Poole driving a green Toyota
Camry. When Deputy Snowden was unsuccessful in his pursuit of
Poole, he radioed to other officers for assistance. After hearing the
radio transmission, Deputy Nickles left his post on Compton Road
and assisted in setting up a vehicle roadblock on Carr Store Road.
Deputy Nickles traveled on Carr Store Road just moments before
Poole approached from the same direction and was stopped at the
roadblock. No other vehicles traveled on this road between Deputy
Nickles' car and Poole's car.
Major Donald Truelove began following Poole's vehicle after
Poole passed his location. Deputy Snowden fell in right behind Major
Truelove. Poole, the only occupant of the Toyota Camry, was seen
throwing an object from the vehicle. Deputy Snowden recovered a
loaded Charter Arms .44 special caliber revolver from the roadway.
After the officers advised Poole that he was under arrest for felon in
possession of a firearm, Poole stated, "You got me there . . . I threw
out the gun."
In support of his defense of justification, Poole sought to introduce
evidence that in July 1996, four men broke into Poole's residence,
shot him five times, bound him, and robbed him. Following this inci-
dent, Poole was hospitalized for nine days with gunshot wounds to his
chest, abdomen and both thighs.
2
In January 1997, Poole was attending a recreational basketball
game when two of the participants began to fight. Upon seeing the
fight, Poole proceeded to separate the participants. One of the partici-
pants then went outside, retrieved a handgun, and brandished it in
Poole's direction. Poole ran toward his automobile. While he was run-
ning, he was shot in the back of his thigh. Poole then retrieved a hand-
gun and returned fire.
In March 1997, a person or persons fired a weapon through the
plate glass windows of Poole's business, D.P. Fashions in Hillsbor-
ough, North Carolina. The store was not open at the time. The glass
sustained extensive damage. Poole subsequently received information
that the assailant in the January 1997 shooting threatened to kill him.
The district court granted the government's motion in limine to
exclude this evidence, finding that Poole failed to meet the "immedi-
acy" requirement for a justification defense to the charge of being a
felon in possession of a firearm. Following his conviction and sen-
tencing, Poole appeals this ruling.
We review de novo the district court's determination of whether to
instruct the jury on the defense of justification. See United States v.
Perrin, 45 F.3d 869, 871 (4th Cir. 1995). To warrant an instruction
on the justification defense, the defendant must produce evidence
that: (1) he "was under unlawful and present threat of death or serious
bodily injury;" (2) he "did not recklessly place himself in a situation
where he would be forced to engage in criminal conduct;" (3) he "had
no reasonable legal alternative (to both the criminal act and the avoid-
ance of the threatened harm);" and (4) there existed a "direct causal
relationship between the criminal action and the avoidance of the
threatened harm." United States v. Crittendon , 883 F.2d 326, 330 (4th
Cir. 1989) (citations omitted). Failing sufficient evidence as a matter
of law as to one of these elements, a defendant may be precluded
from presenting any evidence to support his claimed justification
defense. See United States v. Bailey, 444 U.S. 394, 416 (1980);
United States v. Sarno, 24 F.3d 618, 621 (4th Cir. 1994). This Circuit
construes the justification defense "very narrowly." Perrin, 45 F.3d at
875.
We agree with the district court that Poole failed to show that at
the time of the unlawful possession, he was under a present or immi-
3
nent threat of death or injury. See Crittendon , 883 F.2d at 330.
Poole's proffered evidence (1) that he had been shot in his home
nearly one year earlier, (2) that he had been shot while attending a
recreational basketball game six months earlier, and (3) that his place
of business was fired upon and his life threatened four months prior
to the possession does not justify his carrying a firearm in a vehicle
in which he was the sole occupant on July 3, 1997. Although Poole's
fear of an attack may have been reasonable, a generalized fear does
not support the defense of justification; rather, the "defendant must
show that a real and specific threat existed at the time of the unlawful
possession." Crittendon, 883 F.2d at 330. Compare Perrin, 45 F.3d
at 874 (finding no immediate threat where unlawful possession
occurred two days after threat made by individual who had gone to
apartment of defendant's cousin with shotgun in hand, looking for
defendant), with United States v. Paolello, 951 F.2d 537, 539, 542 (3d
Cir. 1991) (finding justification where defendant wrestled gun away
from man who had argued with defendant, struck defendant's stepson,
and then raised and fired gun in the air), and United States v. Panter,
688 F.2d 268, 272 (5th Cir. 1982) (finding unlawful possession of
firearm justified where defendant's illegal possession of firearm
occurred "in the actual, physical course of a conflict that he did not
provoke").
Because Poole cannot show more than a generalized fear at the
time he was stopped by officers from the Orange County Sheriff's
Department, he failed to produce evidence that he"was under unlaw-
ful and present threat of death or serious bodily injury." See
Crittendon, 883 F.2d at 330. Failing to present sufficient evidence as
to the first element of the affirmative defense, Poole was properly pre-
cluded from presenting any evidence to support his claimed justifica-
tion defense. See Bailey, 444 U.S. at 416; Sarno, 24 F.3d at 621. We
therefore uphold the district court's decision to grant the govern-
ment's motion in limine to exclude Poole's evidence as to his justifi-
cation defense and affirm Poole's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
4