Opinion
Cr. No. 00-522-HA
May 3, 2001
Attorney for the Government:
Fredric N. Weinhouse, Assistant United States Attorney, Portland, Oregon
Attorney for Defendant:
Gerald M. Needham, Assistant Federal Public Defender, Portland, OR
OPINION AND ORDER
I. Introduction
The government has filed a motion in limine seeking to preclude Defendant Michael Chiles from presenting a justification/necessity defense at his trial on the charge of felon in possession of a firearm. See United States v. Moreno, 102 F.3d 994, 997 (9th Cir. 1996) (upholding preclusion of a duress defense through a pretrial motion in limine). A criminal defendant has no Fifth Amendment right to present such a defense. "The constitutional right to testify is not absolute but includes only `the right to present relevant testimony.'" Id. (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)) (emphasis in original). If the defendant cannot present a prima facie claim for the defense, evidence of it is not relevant and should be excluded by the trial court. Id. For the reasons stated below, the court concludes that defendant is not entitled to present his justification/necessity defense at trial.
II. Factual Background
On October 6, 2000, four young men, including defendant's brother Gabriel Chiles, were shot outside a Portland liquor store. Three of the victims, including Gabriel Chiles, were transported to Emanuel Hospital in Portland. On the evening of October 8, 2000, hospital staff became alarmed about the demeanor of a number of visitors for Gabriel Chiles. In addition, another victim, Walter Smith, became concerned when he thought he saw the person who shot him in the fourth-floor ward where he was being treated. Smith was assigned a security guard, and hospital staff called Portland Police Bureau Detective Sergeant Howe for assistance with the disturbance created by Gabriel Chiles and his visitors.
The background facts of this case have already been developed in detail during a motion to suppress. Defendant has also filed an offer of proof containing the basis for his duress defense. For purposes of this motion, the court has taken the facts alleged in the offer of proof as true within the context of the evidence developed during the suppression hearing.
Detective Howe, Portland Police Officer Michael Stradely, and Multnomah County Parole Officer Robert Anderson arrived at the hospital a short time later. As the officers were walking into the front door of the hospital, Officer Stradely recognized Defendant Michael Chiles walking out the door. Stradely and defendant knew each other because of defendant's past criminal history. When Stradely nodded to him, defendant hurried quickly away. As the officers entered the front area of the hospital, a trauma nurse pointed toward defendant and said that he was one of Gabriel Chiles visitors and had been acting as if he was armed. By this time, defendant had already exited the hospital and had proceeded across the parking lot. The officers decided that their first priority was quelling the disturbance on the upper floors and let defendant go. Gabriel Chiles, defendant's brother, was a patient on the fifth floor of the hospital. Chiles had had numerous visitors and had disrupted the hospital to such an extent that hospital staff moved him to the fifth floor from the fourth floor and listed him as a "no locate" patient, refusing to give out Chiles' location, room number, or telephone number to anyone other than family members.
Nonetheless, after he was moved and classified as a "no locate" patient, Chiles called a number of persons on his cell phone, and his room on the fifth floor soon filled with noisy visitors. The visitors played loud music and made intimidating comments to hospital-staff members. When one staff member told Chiles that the hospital was concerned about his security, one of Chiles visitors patted his waistband and said that Chiles had "his own security."
When the police arrived, hospital security requested that the police officers help them remove the visitors from the hospital. The police officers called for back-up and then went to the fifth-floor room. The officers took control of the room and removed the visitors one by one. As each visitor was taken from the room, they patted down the visitors for weapons in the fifth floor hallway and issued trespassing citations to prevent them from returning to the hospital. While the visitors were being searched for weapons and issued citations, defendant exited from the fifth-floor elevator. An officer recognized defendant as being a person suspected by the hospital staff of carrying a weapon. He was taken aside and searched. A loaded .380 caliber semi-automatic weapon was found in his waistband and 30 rounds of additional ammunition were also seized.
According to defendant, he was concerned that an accomplice of the shooter at the liquor-store robbery might be returning to "finish the job" by killing Gabriel Chiles. Defendant notes that Chiles had been moved to the fifth floor, in part, because another victim, Walter Smith, believed he had spotted the shooter's accomplice on the fourth floor. Defendant claims he was concerned that his brother's life was in danger and that his brother had asked defendant to bring him a gun.
According to defendant, the gun was seized as defendant was delivering it to his brother.
III. Discussion
In order to present a justification/necessity defense to the jury, the defendant must come forward with a prima facie case that (1) he was under an 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 activity, (3) he had no reasonable legal alternative, and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. United States v. Gomez, 92 F.3d 770, 775 (9th Cir. 1996); United States v. Lemon, 824 F.2d 763, 765 (9th Cir. 1987). "[I]t is essential that the testimony given or proffered meet a minimum standard as to each element" of the defense before it is submitted to the jury. See United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 637 (1980).
In this case defendant cannot meet the third element of the defense, which requires a showing "that he actually tried the alternative or had not time to try it, or that a history of futile attempts revealed the illusionary benefits of trying it." Lemon, 824 F.2d at 765. Defendant's offer of proof fails to contain any evidence that either he tried to avail himself of legal alternatives to avoiding the harm. First, Chiles had been moved to the fifth floor and classified as a "no locate" patient. Nonetheless, he called several persons on his cell phone, gave out his room number, allowed his room to become filled with visitors, allowed loud music to be played, and allowed loud conversations to take place. In addition, Chiles did not want a security guard to be stationed outside his door, even though the hospital stationed one outside Walter Smith's door. There is no evidence that defendant attempted to have the guests leave his brother's room or to quiet them, nor is there evidence that defendant requested a security guard to be placed outside his brother's room. Instead of taking these minimal steps to protect his brother's safety, defendant chose to bring a gun into the hospital.
Second, defendant is a convicted felon who is not allowed to carry a firearm. Even assuming that bringing a semi-automatic handgun into a hospital was a reasonable alternative (which it was not), there is no evidence that defendant attempted to have a non-felon to deliver the gun to Chiles.
Third, before attempting to bring his brother a gun, there is no evidence that defendant attempted to contact the police so that they could protect his brother. In fact, when defendant walked past the police officers as he was exiting the hospital, instead of stopping and asking for their assistance, defendant walked quickly away. As a result, defendant's justification/necessity claim fails as a matter of law. See United States v. Wofford, 113 F.3d 977, 980 (9th Cir. 1997) (felon in possession of a firearm not entitled to present defense when he failed to contact law enforcement for protection); Moreno, 102 F.3d at 997 (defendant not entitled to present the defense when he tried to escape when approached by police rather than asking for their assistance).
In Wofford, the defendant, who had been convicted of a prior felony, argued that he needed the firearm for protection from Hells Angels members. The court wrote,
Wofford admits that he did not approach the police or any other representative of law enforcement. Instead, he asseverates that he feared being branded a "snitch," and took other measures to avoid the threat-changing his phone number, putting his house up for sale, and talking to "people in the streets" and the man he believed responsible for the threat on his wife. These bland palliatives do not cure the defect in Wofford's offer of proof. He did not seek protection from law enforcement first, even though it was neither futile nor impossible for him to do so. He therefore cannot satisfy the third element of the justification defense.
113 F.3d at 981.
IV. Conclusion
For the foregoing reasons, the government's motion to strike defendant's justification/necessity defense and any related evidence, (doc. 24), is granted.
IT IS SO ORDERED.