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The Limited Power Of The New York Court Of Appeals: Mixed Questions Of Law And Fact

By Stephen N. Preziosi, October 24th, 2014

criminal appeals lawyer, limited jurisdiction, appellate review, exigent circumstances, emergency exception to the warrant requiremnet

People v. Rossi

2014 NY Slip Op 07006

New York Court of Appeals

Decided on: October 16, 2014

Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

The Emergency Doctrine Exception To The Warrant Rule: A Mixed Question Of Law And Fact.

Issue: Whether exigent circumstances continued to exist after police secured Defendant inside his home and continued to search the premises in order to secure the gun for the protection of the children who may have come across it.

Summary: Police responded to a 911 call from Defendants wife stating that he had shot himself in the hand. The Police entered the apartment where they saw Defendant bleeding from his hand. The officer’s frisked him, but no weapon was found. A third officer began searching the backyard, eventually discovering a loaded gun near a shed, and Defendant was arrested.

At the suppression hearing, Defendant argues that the search of his premises was unconstitutional because by the time the gun was discovered, the scene was secure and the emergency had ended. The Court of Appeals stated that there was record support from the Appellate Division that the search was lawful under the emergency exception and that any further review is beyond their jurisdiction because the emergency doctrine presents a mixed question of law and fact.

See Also: Searches Of Closed Containers Within A Home: Where No Exigent Circumstances Exist, Police Must Obtain A Warrant To Search Closed Container Within A Home.

Holding: The Court of Appeals held that application of the emergency doctrine involves a mixed question of law and fact that is beyond their review so long as there is record support for the findings from the court below. The Court noted that the Appellate Division held Defendant’s incoherence and evasive answers about the location of the gun and the presence of children on the premises, established an ongoing emergency and danger to life, justifying the search for and seizure of the gun.

Note to reader on the powers of the New York Court of Appeals:

The Court of Appeals does not have the power to review any questions of fact and is confined to the review of questions of law. The Court’s power of review is further limited by the requirement that a claim of error of law on the part of the courts below must, in general, have been duly preserved fir review by appropriate motion, objection or other action in the nisi prius court in order to be reviewable as a question of law. In that respect, the review power of the Court of Appeals differs from that of the Appellate Division, which has broad discretionary authority to grant certain relief ‘ in the interest of justice’ even on unpreserved claims of error. It is accordingly necessary, on an appeal to the Court of Appeals, to ascertain what issues of law, if any, are presented by the record.

Facts: Defendant’s wife called 911 and reported that Defendant had shot himself in the hand, but was unable to tell the officer’s the gun’s whereabouts. The officers entered into the apartment, where they saw Defendant bleeding profusely from his hand. The Defendant stated that he did not know where the gun was located and that his three children were in the residence. They drew their weapons and frisked Defendant, but found no weapon.

While an EMT was tending to Defendant’s wounds, a third officer began searching the backyard, eventually discovering a loaded gun near a shed and arrested Defendant. At the suppression hearing, Defendant argues that the search of his premises was unconstitutional because by the time the gun was discovered the scene was secure and the emergency had ended.

The Appellate Division affirmed and held that the Defendant’s incoherence and evasive answers about the location of the gun and the presence of children on the premise, established an ongoing emergency and danger to life, justifying the search for and seizure of the gun.

Legal Analysis: The Court of Appeals held that exigent circumstances involves a mixed question of law and fact that is beyond their view so long as there is record support for the findings of the court’s below People v. Doll, 21 NY3d 665, 671 2013.

Here, Defendant argues that the search of his premises was unconstitutional because by the time the gun was discovered, the scene was secure and the emergency had ended. At trial, the People established that the testimony established that for the protection of the children who may have come across the gun, the officers needed to secure it and did so contemporaneously with escorting the children from the residence.

A divided Appellate Division affirmed. The majority determined that Defendant’s incoherence and evasive answers about the location of the gun and the presence of children on the premises, established an ongoing emergency and danger to life, justifying the search for and seizure of the gun. The court further concluded that the suppression testimony established that the officer searching the backyard was aware that other officers were searching the residence, but was unaware that the children were secure and out of danger.

Because there is record support for the majority’s conclusion that the search was lawful under the emergency exception, any further review is beyond the Court of Appeal’s jurisdiction.

Searches Of Closed Containers Within A Home: Where No Exigent Circumstances Exist, Police Must Obtain Warrant To Search Closed Container Within The Home

By Stephen N. Preziosi, October 23rd, 2014

criminal appeals lawyer, exigent circumstances, warrantless entry, fourth amendment, emergency doctrine

People v. Jenkins

2014 N Y Slip OP 07007

New York Court of Appeals

Decided on: October 16, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer 

Issue: Whether a police officer’s warrantless search of a closed metal box in Defendant’s home was reasonable under the exigent circumstances exception to the warrant requirement.

Summary:  Police arrived at an apartment building after hearing gunshots. Upon entering a hallway, they noticed Defendant holding a gun. When Defendant became aware of the police, he ran into an apartment. The Police broke down the door. The officers searched the apartment and found Defendant and his cohort hiding under a bed. The officers frisked and secured them.

The Police then searched the apartment and found a metal box.  They shook the box, and, upon hearing a sound, opened it and discovered a gun. At a pre-trial suppression hearing, the trial court found that the warrantless search of the apartment was proper, however, once Defendant was handcuffed and secured, the emergency had stopped. Therefore, the warrantless search of the box was improper.

The Appellate Division reversed and held that exigent circumstances justified the officer’s entry into the apartment and that the observation of Defendant holding a gun, justified the warrantless search for the gun. The Court of Appeals reversed the Appellate Division’s conclusion that exigent circumstances justified the search of the closed box because, by the time the Officer opened the box, any urgency justifying the warrantless search had abated.

See Also: Tampering With Witness On Facebook And Youtube: Posting “Snitches Get Stitches” Constitutes Witness Tampering.

Holding: The Court of Appeals held that exigent circumstances did not exist to justify the warrantless entry into a closed metal box in Defendant’s home.

The Court of Appeals held that the search was unreasonable as a matter of law because by the time the officer opened the box, any urgency justifying the warrantless search had stopped.

The exigent circumstances exception to the warrant requirement dictates that police may act without a warrant where they possess probable cause to search but urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction.

Facts: Police entered into an apartment building after hearing gunshots. When they entered in the hallway, they observed Defendant holding a gun; he then ran into an apartment. The officers broke down the door. Upon entering, they observed two women in the living room, who denied that anyone had entered the apartment.

The officers searched the apartment and located Defendant and his cohort hiding under a bed. Officer Brennon and another officer removed the men, frisked them, placed them in handcuffs, and joined them with the two women in the living room.

Officer Brennon then searched for the gun, without success. However, he found a box, shook it, opened it, and discovered a gun. He returned to the living room and placed Defendant under arrest.

At a pre- trial suppression hearing, the People argued that exigent circumstances justified the warrantless search of the box. The court concluded that the warrantless entry into the apartment was proper, but that once Defendant was handcuffed and secured, the exigency had abated and the warrantless search of the box was improper.

The Appellate Division reversed, concluding the same exigent circumstances that justified the officers’ entry into the apartment–the gunfire and the Defendant in plain-view holding a gun–justified the warrantless search for the gun. The Court of Appeals reversed the Appellate Division’s conclusion that exigent circumstances justified the search of the closed box because, by the time the Officer opened the box, any urgency justifying the warrantless search had abated.

Legal Analysis: The Court of Appeals held that subject to narrow exceptions, a warrantless search of an individual’s home is per se unreasonable and unconstitutional. People v. Knapp, 52, NY2d 689, 694 (1981). One exception, commonly referred to as the exigent circumstances exception, dictates that police may act without a warrant where they possess probable cause to search but urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction.

Here, the Court of Appeals held that when police arrived at Defendant’s apartment, the officers handcuffed the men and moved them into the living room where they remained under police supervision.

By the time one of the officers searched the box and discovered the gun, the police were in complete control of the house. At that point, there was no danger that Defendant would dispose of or destroy the weapon. Absent the presence of any other exception to the warrant requirement, such as a search incident to arrest or the gun being in plain view, the police were required to obtain a warrant prior to searching the box. Accordingly, the order of the Appellate Division should be reversed and Defendant’s motion to suppress the physical evidence granted.

Tampering With Witness On Facebook And YouTube: Posting “Snitches Get Stitches” Constitutes Witness Tampering

By Stephen N. Preziosi, October 22nd, 2014

criminal appeals lawyer, witness tampering, sufficiency of evidence, Facebook, youtube, identifying confidential informant

People v. Horton

New York Court of Appeals

2014 NY Slip Op 07088

Decided on: October 21, 2014

Using Facebook And YouTube To Tamper With A Witness

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether there was sufficient evidence to show that Defendant attempted to prevent a confidential informant from testifying where Defendant posted video surveillance of a drug bust on Facebook and YouTube, which identified the confidential informant and caused a flurry of discussion on Facebook denouncing the informant as a snitch.

Summary: Defendant’s best friend Jackson was arrested and charged with a drug sale. During that videotaped drug sale, a confidential informant wired with a microphone arranged a meeting with Defendant and Jackson, bought a quantity of cocaine from Jackson where he was later arrested.

Defendant uploaded a clip of the surveillance video on YouTube and provided a link on his Facebook page denouncing the confidential informant. The confidential informant reported Defendant to the investigators and he was arrested for witness tampering, tried, and convicted and sentenced to one year in jail.

On Appeal, Defendant argues that there was insufficient evidence that he had any knowledge the confidential informant was about to testify. The Court of Appeals affirmed sating that there was sufficient evidence to show that Defendant knew that the informant would testify and that he wrongfully sought to stop her from doing so.

See Also: Unto The Sons Of Anarchy: Juror’s Must Follow The Law As Instructed By The Trial Court Or Face Expulsion

Holding: The Court of Appeals held that there was sufficient evidence that Defendant committed witness tampering because Defendant’s best friend was charged with a drug sale and he knew that the confidential informant had worked with police to secure that charge.

A person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, he wrongfully induces or attempts to induce such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding Penal Law 215.10

Facts: Investigators planned a controlled, recorded drug purchase. They recruited a young woman, the confidential informant, to make the actual buy. The confidential informant was wired with a microphone and a camera was concealed in the back seat of her car to videotape. She arranged a meeting with Defendant Horton and his best friend Jackson where Jackson sold her a quantity of cocaine, a transaction captured by the hidden camera and recorded by the wire.

Jackson was arrested and went to Horton’s house with a copy of the videotape. Horton uploaded a clip of the surveillance video to YouTube and posted a link to it on his Facebook page, identifying her as an informant. Many statements were made by Defendant and others denouncing snitches in general and the confidential informant, including warnings that “snitches get stitches” and “I hope she gets what’s coming to her.”

The confidential informant contacted one of the investigators and charged Defendant with witness tampering. Defendant was tried in Town Court and convicted as charged. Defendant appealed to County Court, arguing that there was insufficient evidence that he attempted to prevent the confidential informant from testifying; that motion was denied and County Court affirmed.

Defendant appealed to the Court of Appeals where the Court held that there was sufficient evidence that Defendant had knowledge that his best friend was charged with a drug sale, and knew that the confidential informant had worked with the police to secure that charge. The Court of Appeals affirmed.

Legal Analysis: The Court of Appeals held that the evidence, seen in light most favorable to the People, is sufficient to establish that Defendant knew that the confidential informant might testify in a proceeding.

Penal Law 215.10 states that a person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, he wrongfully induces or attempts to induce such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding.

Here, after Defendant learned about his best friend Jackson’s arrest and the confidential informant’s role as a witness against Jackson, Defendant immediately posted statements on the internet that the jury might have reasonably inferred were “coded threats” that were intended to induce the confidential informant not to testify. The Defendant made Facebook posts identifying the confidential informant and the confidential informant was able to see these posts and the comments from other Facebook users that the posts generated.

The Court of Appeals held that in addition to the public postings on Facebook and YouTube, Defendant was in contact via Facebook messages with the confidential informant and her mother.

Thus, the Court of Appeals held that there was sufficient evidence that Defendant knew the confidential informant might testify in a proceeding, and that he wrongfully sought to stop her from doing so. The Court of Appeals affirmed.

Unto The Sons Of Anarchy: Jurors Must Follow The Law As Instructed By The Trial Court Or Face Expulsion

By Stephen N. Preziosi, October 21st, 2014

criminal appeals lawyer, jury instructions, Federal rules of criminal procedure 23(b)(3), jury misconduct

U.S v. Ellis

United States Court of Appeals for the Eleventh Circuit

13-10184

Decided on: September 3, 2014

Federal Rules Of Criminal Procedure 23(b)(3) Allows 11 Jurors To Decide A Criminal Case

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether the District Court abused its discretion where the court replaced one juror during voir dire and whether the court committed an abuse of discretion under Federal Rule of Criminal Procedure 23(b)(3), which allows a court to remove and replace a seated juror before verdict, when it excused a sitting juror during deliberations for failure to follow the court’s instructions on the law.

Summary: In a case of life imitating art imitating life, Godwin was inspired by the dictional motorcycle gang in Sons of Anarchy, itself modeled on the real life Hells angels, to form his own band of brigands called the Guardians. Under his leadership, tge Guardians terrorizes the citizens of Jacksonville, Florida, through a steady onslaught of home invasion robberies, armed bank robberies, and other crimes.

Defendant was convicted under the Racketeer Influenced and Corrupt Organizations Act (RICO) for racketeering, and conspiracy to commit racketeering. At jury selection, a member of the jury explained that she would be unable to serve on the jury because she couldn’t care for her child and the District Court replaced her with an alternate.

During deliberations, Juror 10 refused to follow the court’s instructions, which led him to be excused. On Appeal, Defendant contends that the District Court abused its discretion under FRCP 23(b)(3) in excusing two members of his jury. The Court of Appeals affirmed stating that a District Court may excuse a juror for good cause, which includes that juror’s refusal to apply the law or to follow the court’s instructions, as well as replace any jurors who are unable to perform or who are disqualified from performing their duties

See Also: Self-Defense: Charge To The Jury Requires Sufficient Evidence  

Holding: The Eleventh Circuit Court of Appeals held that the District Court did not abuse its discretion when it removed a juror who stated she would be distracted by her concern for her child and would not give the case her full attention..

A District Court may remove and replace a seated juror before deliberations begin whenever facts arise that cast doubt on that juror’s ability to perform her duties.

The decision to remove a juror and replace him with an alternate is entrusted to the sound discretion of the trial judge whenever facts are presented which convince the trial judge that the juror’s ability to perform his duties as a juror is impaired. See Fed R. Crim. P. 24(c).

The Eleventh Circuit also held that the District Court did not err when it excused a member of the jury when that juror refused to follow the court’s instructions.

A trial Judge may excuse a juror for good cause, which includes that juror’s refusal to apply the law of to follow the court’s instructions.

Facts: Defendant Godwin was convicted for racketeering, and conspiracy to commit racketeering. At the beginning of the selection of his jury, the court notified the potential jurors that the trial was expected to four-and-a-half weeks. One of the jurors explained that there would be an issue because she was the primary care giver for her son. The District Court found that she would be affected by her opposition to being away from her child and replaced her with an alternate.

During deliberations, the Judge instructed the jury of a substantive RICO offense and of conspiracy to violate RICO. The Judge stated that the jurors were bound to follow the law as the Judge explained, even if they did not agree with the law. A Juror sent out a note stating that Juror 10 refused to follow the court’s legal instruction and to apply those instructions to the evidence.

Nine of the eleven jurors explained that Juror 10 said that he doesn’t agree with the law and didn’t care what the law said. The Government then moved to excuse Juror 10 under Federal Rule of Criminal Procedure 23(b)(3). On Appeal, Defendant challenges the District Court’s decisions to excuse both jurors. The Eleventh Circuit affirmed the District Court’s decision.

Legal Analysis: The Eleventh Circuit Court of Appeals held that they review a District Court’s decision to excuse a juror only for an abuse of discretion. United States v. Register, 182 F.3d 820, 839-40 11th Cir. 1999. In this case, Defendant contends that the District Court erred in excusing two members of his jury.

First, he argued statements made from the juror’s father to the judge about how distressed she was about having to serve on the jury and not being able to take care of her fourteen-month-old son during the duration of the trial.

The Eleventh Circuit held that a District court may remove and replace a seated juror before deliberations begin whenever facts arise that cast doubt on that juror’s ability to perform her duties. United States v. Smith, 918 F.2d 1501, 1512 11th Cir. 1990. Here, when the court convened the next morning the Judge immediately notified the parties of the phone call and the father’s statements. After being notified of the father’s statements, Defendant had an opportunity to address them and object to the court’s consideration of them, but he did not.

The Eleventh Circuit held that the District Court did not solicit the father’s statements, it brought them to the parties’ attention, and neither side objected to the court considering those statements. Under those circumstances the court did not err or abuse its discretion in considering the father’s statements. United States v. Puche, 350 F.3d 1137, 1152053 11th Cir. 2003. The District court justifiably found that the juror would be affected by her opposition to being away from her child and would be unable or unwilling to focus on the trial. Not only was the District Court’s decision well within its direction, but the Defendant has also failed to demonstrate that he was prejudiced by the removal of the juror.

The Eleventh Circuit held that the decision to remove a juror and replace him with an alternate is entrusted to the sound discretion of the trial judge whenever facts are presented which convince the trial judge that the juror’s ability to perform his duties as a juror is impaired. The court may replace any jurors who are unable to perform or who are disqualified from performing their duties. The Eleventh Circuit held that they will not disturb a District Court’s decision to remove a juror before deliberations absent a showing of bias or prejudice, which includes removal without factual support, or for a legally irrelevant reason. United States v. Fajardo, 787 F.2d 1523, 1525 11th Cir. 1986.

Once deliberations have begun, a District Court may excuse a juror for good cause, which includes that juror’s refusal to apply the law or to follow the court’s instructions, Federal Rule of Criminal Procedure 23(b)(3).

      Defendant next argues that the District Court abused its discretion in removing Juror 10(the second juror) after the jury began its deliberations. He argues that the answers that the jurors gave about Juror 10’s behavior during the deliberations failed to establish that he was refusing to follow the court’s instructions on the law, and instead showed that he was a juror in the minority who was doing his best to interpret those instructions.

The Eleventh Circuit held that the District Court explicitly applied the correct standard, which was whether there was a substantial possibility that the juror who was removed was merely espousing the view that there was insufficient evidence to convict instead of refusing to follow the court’s instructions.

Because the District court did that, the only question is whether it clearly erred in finding that the juror was refusing to follow the instructions.

The Eleventh Circuit held that it is seldom easy to establish clear error. It is especially difficult to do so in this situation where the District Court was on the scene, viewed the jurors as they described the problem, and therefore was uniquely situated to make the credibility determinations that must be made whenever a juror’s motivations and intentions are at issue.

In conclusion, the Eleventh Circuit held that Defendant’s jury submitted two notes to the District Court, both of which stated that one juror did not agree with the court’s instructions on the law. The District Court specifically found that the statements of every juror but Juror 10 were unequivocal, specific, consistent and credible, that Juror 10 refused to follow the court’s instructions, and that there no substantial possibility that Juror 10 was basing his disagreement or his decision on the sufficiency of the evidence. Accordingly, the Eleventh Circuit Court of Appeals affirmed the conviction.

Self Defense: Charge To The Jury Requires Sufficient Evidence

By Stephen N. Preziosi, October 20th, 2014

criminal appeals lawyer, jury instructions, sufficient evidence, self defense

U.S v. Feather

United States Court of Appeals for the Seventh Circuit

2014 WL 4803128

Decided on: September 29, 2014

Jury Instructions And Justification Defense Requires Sufficient Evidence

Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether the District Court erred when it refused to allow a jury instruction of self-defense when Defendant claimed he disemboweled the unconscious victim because he claimed he was faced with an imminent threat of physical harm.

Summary: Defendant and his cellmate had an argument that resulted in the cellmate’s death. At trial, Defendant asked to present his

testimony in support of self-defense; the Judge declined to instruct the jury on self-defense, concluding as a matter of law, the Defendant failed to support each element of the defense with some evidence. Defendant appealed to the Court of Appeals for the Seventh Circuit where it was affirmed.

See Also: Sinking The Boat Of Exculpatory Evidence: The First Circuit Goes On A Fishing Expedition Looking To Excuse The Government’s Bad Faith Destruction Of Evidence.

Holding: The Seventh Circuit held that the District Court did not err when the Judge declined to instruct the jury on self defense because there was no evidence that the victim was imposing an imminent threat of harm or deadly force when he laid unconscious on the cell floor and Defendant sliced into his abdomen with the razor.

A Defendant is entitled to a jury instruction if, among other things, the instruction reflects a theory that is supported by the evidence, and the failure to include the instruction would deny the Defendant a fair trial.

The Seventh Circuit held that in order to offer a defense of self-defense, a Defendant must, as a condition precedent, establish that he faced an imminent threat and had no reasonable legal alternatives to avoid that threat.

Facts: Defendant Cleveland “White Feather” and his cell mate Robert “Running Bear” got into an argument, which resulted in Bear’s death. Feather wanted to keep the lights on to finish writing a letter while Bear wanted the lights off. Feather claims that Bear came at him brandishing a blade and his intent was to “kill him”.

In Feather’s initial statement to FBI, Feather stated that he rendered Bear into a chokehold until he was unconscious and while he was unconscious, he retrieved a razor and cut open his abdomen. At trial, the District Court reserved its ruling and allowed Defendant to present his testimony in support of self-defense. At the close of evidence, the Judge declined to instruct the jury, concluding that the victim was not imposing an imminent threat of harm or deadly force and the jury found him guilty.

On Appeal, Defendant argues that the District Court erred when it refused to instruct the jury on self-defense. The Court of Appeals affirmed and found a lack of evidence of an imminent threat.

Legal Analysis: The Seventh Circuit Court of Appeals held that they review de novo a District Court’s refusal to allow a jury instruction on a defendant’s theory of defense.

The Seventh Circuit held that a Defendant is entitled to a jury instruction if, among other things, the instruction reflects a theory that is supported by the evidence, and the failure to include the instruction would deny the Defendant a fair trial. United States v. Jackson, 598 F.3d 340, 345 7th Cir. 2010.

The District Court may properly refuse a jury instruction on an affirmative defense if the Defendant has failed to support each element of the defense with some evidence. United States v. Tokash, 282 F.3d 962, 969 7th Cir. 2002.

In this case, at trial, the District Court reserved its ruling and allowed Defendant to present testimony in support of self-defense at trial. At the close of evidence, the judge declined to instruct the jury on self-defense, concluding, as a matter of law, that the victim was not imposing an imminent threat of harm or deadly force when he laid unconscious on the cell floor and Defendant sliced into his abdomen with the razor.

The Seventh Circuit held that in order to offer a defense of self-defense, a Defendant must establish that he faced an imminent threat and had no reasonable legal alternatives to avoid that threat. Tokash, 282 F.3d at 969-71. Self-defense is a viable legal justification only if the Defendant was faced with an actual, imminent threat of physical harm. This is so even in prisons where threats and violence are common.

The Seventh Circuit held that they recognize three “lesser evil” defenses that may justify otherwise unlawful action: duress, necessity, and self defense. United States v. Haynes, 143 F.3d 1089, 1091 7th Cir. 1998. Each of these defenses rests on the belief that a person facing harm is justified in performing an act, otherwise illegal, less injurious than the impeding loss. To warrant a jury instruction on a lesser-evil justification defense, the Defendant must present evidence that he faced actual, imminent harm and had no reasonable legal alternatives to avoid it.

The Seventh Circuit held that imminence is an essential element for self-defense because the threatened harm may, in fact, be avoidable. If the threat is not imminent, a retreat or similar step avoids injury. Significantly, the Court held that a Defendant’s subjective belief that he had no available legal alternatives—even if objectively reasonable—is not enough to proceed with a justification defense if the evidence is insufficient to establish an actual, imminent threat of physical harm.

Here, the District Court held that Defendant lacked evidence of an imminent threat. The Seventh Circuit held, even if the victim was the initial aggressor, he was unconscious when Defendant dragged him out from the bed and attacked him with the razor. An unconscious adversary does not pose an imminent threat of death or serious bodily harm. The Seventh Circuit held, by Defendants own account, the victim was still unconscious when he dragged him out from the bed and cut his abdomen open. That alone defeats the claim of self-defense.

            The Seventh Circuit held that Defendant also failed to present evidence that he had no alternatives to the use of deadly force. A Defendant seeking to justify his actions as a lesser evil must avail himself of reasonable legal alternatives to the use of unlawful force.

The Seventh Circuit noted that Defendant had several legal alternatives to the use of deadly force. The Court held that the cell was equipped with a duress button, and the Government presented ample evidence about the operation of the duress signal and how it was designed to require prison guards to respond to the source of the alarm.

The Seventh Circuit held that the Officer on duty that night testified that the unit was very quiet and if an inmate yelled or banged on his cell door, a guard would hear and immediately respond. Also, during any of the several periods of time when the victim was unconscious, Defendant could have yelled or banged on the cell door and asked for help but simply did not. Because no evidence supports Defendant’s claim of self-defense, the Seventh Circuit Court of Appeals held that the District Court properly refused to instruct the jury on the defense.