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United States v. Garrett

United States Court of Appeals, Eighth Circuit

August 2, 2018

United States of America Plaintiff- Appellee
v.
Michael Anthony Garrett Defendant-Appellant

          Submitted: February 16, 2018

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          LOKEN, CIRCUIT JUDGE

         Shortly after midnight on December 28, 2014, Michael Garrett drove a minivan into the parking lot of the Grand Slam convenience store in Kansas City, Missouri. About 45 minutes later, off-duty Police Officer Michael Hamlett approached the van, found Garrett sleeping, and called for police assistance after attempting to wake him. Officer Douglas Davidson arrived, entered the van through an unlocked door, and found a handgun lying on the floorboard. Garrett was arrested for being a felon in possession of a firearm; search of the vehicle uncovered a mason jar with five plastic baggies containing a total of ten grams of marijuana and a black digital scale with green residue on it. After a three-day trial, a jury convicted Garrett of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2), possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(D), and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). The district court[1] sentenced Garrett to 240 months imprisonment. Garrett appeals his conviction and sentence. We affirm.

         I. A Theory-of-Defense Instruction Issue.

         At trial, Garrett admitted that he possessed the marijuana and scale but argued to the jury that the government failed to prove that he possessed the marijuana with intent to distribute and knowingly possessed the gun in furtherance of a drug trafficking crime. Garrett based this defense primarily on the following evidence:

         Officers Hamlett and Davidson testified that Garrett remained parked at a Grand Slam gas pump for forty minutes, was dazed and confused when awakened, and appeared intoxicated to Hamlett. The dash-cam video from Davidson's vehicle showed Garrett collapsing after exiting the minivan. The officers called for an ambulance (Garrett refused medical treatment when it arrived). The paddy wagon video showed him drifting in and out of sleep after being arrested and losing consciousness while attempting to exit that vehicle. A pharmacist testified that Garrett had current prescriptions for OxyCodone, Xanax, and Codeine. A detention center employee testified that, after his arrest, Garrett had a second degree burn on his thigh that correlated with a hole found in his pants and a burn mark found on the seat of the minivan where he had been sleeping. The inference suggested was that Garrett smoked a "blunt" sold by Grand Slam that he laced with marijuana.

         Before the final instructions conference, Garrett proposed the following theory-of-defense instruction:

One of the issues in this case is whether the defendant was intoxicated due to taking a drug or drugs at the time the acts charged in the Indictment were committed. Being under the influence of a drug, even one taken for medical purposes, provides a legal excuse for the commission of a crime if the effect of the drug negates the mental state required by the charged offense. Evidence that the defendant acted while under the influence of drugs may be considered by you, together with all the other evidence, in determining whether or not he did in fact have an intent to distribute marijuana and an intent to possess a firearm in furtherance of possession of marijuana with intent to distribute.

         Initially inclined to give the proposed instruction, the district court heard argument after the close of evidence and declined to give it, concluding that "a reasonable person would not conclude that the evidence supports the defendant's position so as to warrant the giving of the intoxication instruction." On appeal, Garrett argues the district court erred in refusing to give his requested instruction because it was an accurate statement of the law amply supported by the evidence at trial.[2]

         It is well established "that a criminal defendant is entitled to a theory of defense instruction if a timely request is made, the evidence supports the proffered instruction, and the instruction correctly states the law." United States v. Robertson, 709 F.3d 741, 747 (8th Cir. 2013); see Mathews v. United States, 485 U.S. 58, 63 (1988). The word "defense" in this context includes evidence that negates an affirmative element of the government's case, such as the mens rea element of the charged offense. 709 F.3d at 746. It is widely accepted by this court and others that "[a] defendant charged with a specific intent crime is entitled to an intoxication instruction when the evidence would support a finding that [the defendant] was in fact intoxicated and that as a result there was a reasonable doubt that he lacked specific intent." United States v. Kenyon, 481 F.3d 1054, 1070 (8th Cir. 2007) (quotation omitted).[3] To warrant an instruction, there must be "some evidence" that Garrett "was drunk enough to completely lack the capacity to form the requisite intent." Id., quoting United States v. Nacotee, 159 F.3d 1073, 1076 (7th Cir. 1998); see Stenzel, 261 F. at 163 ("incapable of entertaining" the specific intent required). We conclude the district court did not err in refusing to give the proposed instruction for three reasons.

         1. The proposed instruction did not correctly state the law. First, the instruction told the jury that Garrett lacked specific intent to distribute if he was intoxicated at the time of arrest. In physical or sexual assault cases such as Kenyon, when the intoxication defense most commonly arises, there need only be some evidence that defendant was sufficiently drunk or high when he committed the assault. See United States v. Fay, 668 F.2d 375, 377-78 (8th Cir. 1981) (error not to give intoxication instruction when evidence defendant intoxicated at the time of the assault may have negated intent to do bodily harm). But to prove possession with intent to distribute drugs that have not yet been distributed, the government can prove the requisite specific intent at any time after the defendant acquired possession until his arrest possessing the unsold drugs. An intoxication defense instruction that does not explain this to the jury does not accurately state the law. Second, instructing the jury that it may consider "that the defendant acted while under the influence of drugs" is not an accurate statement of the intoxication defense -- that defendant completely lacked the capacity to form the requisite intent.

         2. The district court concluded there was only speculative evidence that Garrett was intoxicated or under the influence of prescription medications or marijuana at the time of his arrest. We agree. See United States v. Phelps, 168 F.3d 1048, 1056 (8th Cir. 1999) (intoxication instruction that "is based on mere speculation" properly refused). Moreover, there was a total lack of evidence negating Garrett's specific intent to distribute when he acquired possession of the marijuana, packaged it in distribution-sized baggies, and set out with the marijuana baggies and a firearm on a drive that ended at the Grand Slam gas pump. Garrett did not testify at trial, and there was no other evidence as to how the marijuana and firearm came to be in the minivan with Garrett. No amount of evidence of intoxication at the time of arrest would negate the existence of intent to distribute marijuana and to facilitate that drug trafficking crime with a firearm ...


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