United States v. Hicks.
No. 23-7017. 9/9/2024. E.D.Okla. Judge Baldock. Marijuana Business—Controlled Substances Act—Standing to Enforce Judgment—Judgment Enforcement Order.
September 9, 2024
Buckley and his girlfriend Harjo attended a watermelon festival where they consumed a lot of alcohol, including fruit soaked in liquor. On the way home, they stopped at Buckley’s sister Elizabeth’s house around 11:00 p.m., where Buckley and others conversed around the back of a vehicle in Elizabeth’s driveway. Hicks was celebrating his birthday on the same night. Sometime before midnight, Hicks and his cousin Heneha walked down the street in front of Elizabeth’s house on their way to a party a few blocks away. When Hicks passed by the house, Buckley shouted for him to come over. Hicks felt obligated to comply because Buckley—who was 6´2˝ and 281 pounds—had a history of violence in the community when intoxicated, and according to Hicks, Buckley had assaulted him and his friends multiple times in the past. Initially, Hicks and Buckley laughed and joked together for a few minutes, but Buckley suddenly asked Hicks, “was you talking shit about me?” Hicks alleges that Buckley said he would kill Hicks if he heard that again. Buckley and Hicks then moved onto the street in front of Elizabeth’s house as their argument escalated. Harjo heard the argument, walked into the street, and stepped in between Hicks and Buckley to break up the impending fight. What occurred next is contested, but Hicks offered evidence that Buckley knocked out Harjo and then charged Hicks. Hicks then shot Buckley four times, killing him. Hicks fled the scene on foot and remained at large for almost four months after the shooting. Hicks was found guilty of second degree murder of Buckley in Indian Country, use of a firearm during a crime of violence in violation of 18 USC § 924(c), and causing the death of a person in the course of a § 924(c) offense.
On appeal, Hicks argued that the district court plainly erred in instructing the jury on Buckley’s character or reputation for violence by omitting his separate proposed instruction on Buckley’s prior violent acts. He maintained that this instruction incorrectly stated the law by implying that (1) the jury could only consider evidence of Buckley’s violent history to determine who the aggressor was and (2) Hicks had the affirmative obligation to prove Buckley committed the prior violent acts. However, Hicks failed to produce a Tenth Circuit or Supreme Court decision holding that a district court errs by failing to affirmatively instruct the jury that prior violent acts may be relevant to a defendant’s state of mind in a self-defense claim. Therefore, even assuming that the jury instruction was erroneous, the error was not plain.
Hicks also contended that the district court erred by instructing the jury on his flight after the shooting, asserting that the instruction unfairly highlighted his flight and constituted an impermissible comment by the trial judge on the weight of the evidence. Here, the district court’s instruction was consistent with Tenth Circuit precedent in informing the jury it could, but was not required to, consider Hicks’s flight as suggesting his consciousness of guilt. And the instruction further mitigated the risk of prejudice by inviting the jury to consider specific innocent reasons for Hicks’s flight. Therefore, the district court did not abuse its discretion.
Lastly, Hicks argued that, in their entirety, the district court’s instructions were inadequate because they failed to instruct the jury that he had no legal duty to retreat or consider alternatives before using deadly force. He asserted that the jury was thus left without legal guidance as to how the government’s evidence that he failed to retreat, fire a warning shot, call 911, or pursue other nonlethal alternatives related to his self-defense claim. Here, Hicks’s failure to retreat or pursue alternatives was a substantial component of the government’s argument against self-defense. Hicks was thus entitled to, and requested, a one-sentence instruction from United States v. Toledo, 739 F.3d 562 (10th Cir. 2014), informing the jury he had no legal duty to retreat or exhaust alternatives before acting in self-defense. By refusing to give the instruction, the district court deprived the jury of important law governing Hicks’s sufficiently raised self-defense claim and prejudiced his case.
The convictions were reversed and the case was remanded to the district court with instructions to set aside the convictions and grant a new trial.