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Government of the Virgin Islands v. Lewis

September 8, 2010

GOVERNMENT OF THE VIRGIN ISLANDS
v.
MICHAEL LEWIS, APPELLANT



On Appeal from the District Court of the Virgin Islands, Appellate Division (Crim. No. 2002-56) Judges: Hon. Raymond L. Finch, Hon. Curtis V. Gomez, and Hon. Patricia D. Steele.

The opinion of the court was delivered by: Chagares, Circuit Judge.

PRECEDENTIAL

Argued May 3, 2010

Before: SMITH, CHAGARES, and JORDAN, Circuit Judges.

OPINION

Michael Lewis was convicted of unlawful possession of a firearm in the Territorial Court of the Virgin Islands, and was sentenced to fifteen years in prison. He appealed to the District Court of the Virgin Islands, Appellate Division, which affirmed the conviction and sentence. He now appeals to this Court, arguing principally that the trial court committed plain error by failing, sua sponte, to instruct the jury on the affirmative defense of justification. For the reasons that follow, we disagree. We will affirm the conviction without prejudice to Lewis's right to challenge his trial counsel's effectiveness in a collateral proceeding.

I.

This case revolves around the fatal shooting of Mackellis George. At approximately 2:15 a.m. on September 29, 1998, Lewis drove to the Callwood Command police station on the island of St. Thomas and began yelling to Lieutenant Randolph DeSuza that someone had just shot his friend. DeSuza approached and discovered George, lying bloodied and fully reclined in the passenger seat of the car that Lewis was driving. DeSuza directed Lewis to follow him to a nearby hospital. Upon their arrival, DeSuza contacted George's family to inform them of the shooting.

At the hospital, Lewis told DeSuza and George's family that George had been shot in a drive-by shooting, but Lewis gave conflicting details about the incident. He first claimed that he had not seen the color or make of the vehicle the shooter had driven. He later claimed that the color of the shooter's car was white. Still later, he said that it was blue. Lewis's uncle, who was at the hospital, told police that his nephew obviously was lying, and suggested that his hands be checked for gunpowder - whereupon Lewis doused his hands with rubbing alcohol sitting on a nearby table. Meanwhile, a police officer overheard Lewis's grandmother mention that Lewis had shot and killed a dog earlier in the day. The dog's body was recovered, and forensic tests ultimately showed that George and the dog had been shot by the same gun. George died from the gunshot wounds.

Lewis was charged in a two-count information with first- degree murder, in violation of V.I. Code Ann. tit. 14, § 922(a), and unlawful possession of a firearm, in violation of V.I. Code Ann. tit. 14, § 2253(a). He testified in his own defense, proffering yet another version of events, which was as follows. Days before the shooting, George provided Lewis with a drink that caused him to fall asleep at George's residence. Lewis awoke to find George lying behind him, sexually assaulting him. Although he tried to avoid George after that incident, Lewis went to George's residence on the evening of September 28 to collect some of his personal belongings. When he arrived, George became enraged, accusing Lewis of telling others that he (George) was a homosexual. George pulled out a firearm, began "bursting" shots into the ground, and then, pointing the gun at Lewis, ordered him to get into the passenger's seat of George's car. Appendix ("App.") 939.

Lewis testified that George began to drive, and at some point started insulting him and "pushing" the gun repeatedly into his (Lewis's) head. In response, Lewis testified, he grabbed for the gun and a struggle ensued. He claimed that the gun fired several times during the struggle, but that he ultimately gained control of it and shot George in self-defense. Lewis testified that he then put George in the passenger's seat. After "a while," Lewis noticed that George "look[ed] . . . dead" and that his shirt had ripped. App. 946-47. According to his testimony, this caused him to realize that others would want to know why George's shirt had been ripped. Consequently, he stopped at a roadside "garbage pan" and discarded the gun and George's shirt. App. 947-48. He then proceeded to the police station and, ultimately, the hospital. Lewis admitted at trial that he fabricated the phony drive-by shooting story because he did not think anyone would believe that he had shot George in self-defense.*fn1

At the close of trial, the Government and Lewis submitted proposed jury instructions to the trial court. Lewis specifically requested that a self-defense instruction be given to the jury with respect to the murder charge, but did not request that a justification instruction be given with respect to the unlawful possession charge. The trial court instructed the jury as Lewis requested. The jury thereafter acquitted Lewis of murder but convicted him of unlawful possession of a firearm, and the trial court sentenced him to fifteen years in prison. The Appellate Division affirmed the conviction and sentence, and Lewis filed this timely appeal.*fn2

II.

Lewis argues that his conviction for unlawful possession of a firearm*fn3 must be vacated because the trial court failed to instruct the jury on the affirmative defense of temporary justified possession. He premises this argument on his theory that he possessed the gun only long enough to defend himself in the car. Thus, he argues, the jury should have been instructed to consider whether his possession of the firearm was a legal necessity. Lewis concedes that he did not request the trial court to give the instruction ...


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