Metropolitan News-Enterprise


Tuesday, April 1, 2008


Page 1


Styrofoam Knife a ‘Dangerous Weapon,’ Court Says


By SHERRI M. OKAMOTO, Staff Writer


A jury instruction on the charge of assault with a deadly weapon stating that a defendant had used a prison-made knife and advising the jury of the conditions under which a prison-made knife could constitute a deadly weapon did not unconstitutionally alter the prosecution’s burden of proof,  the Ninth U.S. Circuit Court of Appeals held yesterday.

Affirming Malik Smith’s conviction for assault with a deadly weapon by a vote of two to one, the Ninth Circuit held that the district court’s instruction properly charged the jury with determining whether a defendant’s jailhouse attack using a Styrofoam knife satisfied the elements of a charge of assault with a deadly weapon.

Witnesses said Smith attacked George Jeffries in the recreation yard at the federal penitentiary in Lompoc  with a prison-made knife. The knife was about six inches long, and was made by melting down Styrofoam food trays to form a hard, flat plastic object, sharpened to a point at one end. The knife broke during the attack, and Jeffries only sustained mild lacerations and abrasions.

The government charged Smith with assault with a dangerous weapon, in violation of 18 U.S.C. § 113(a)(3). Tracking Ninth Circuit Model Criminal Jury Instruction 8.5, District Judge Percy Anderson of the Central District of California instructed the jury that in order for Smith to be guilty, the government had to prove that Smith struck Jeffries, that Smith intended to harm Jeffries, and that Smith had used a prison-made knife beyond a reasonable doubt.

Anderson then said: “A prison-made knife is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.”

Smith objected to the instructions as erroneously usurping the jury’s role of fact-finder regarding whether the knife qualified as a “dangerous weapon.”  The jury convicted Smith, and Smith appealed.

Writing for the appellate court majority, Judge Diarmuid F. O’Scannlain acknowledged that the instructions could have been clearer, but said they were not defective.

Because the trial court listed the elements of the offense and then supplied the definition of a “dangerous weapon,” in “directly adjacent sentences,” he reasoned that the “latter instruction logically appears to clarify the former.”

U.S. District Judge Robert C. Jones of Nevada, sitting by designation, joined O’Scannlain in his opinion.

Judge Dorothy W. Nelson dissented, pointing out the jury instructions did not explicitly require that the jury find beyond a reasonable doubt that the plastic and Styrofoam knife was capable of causing death or serious bodily injury or that Smith used a “dangerous weapon,” even though the use of such an instrument is an element of the crime. Nelson suggested that the jury could have interpreted the final instruction as a legal conclusion, “that this prison-made knife was a dangerous weapon,” which would have “completely usurped the jury’s role as fact-finder regarding the principal element for which Smith mounted a defense.”

Further, she wrote, the jury also may have thought that the district court’s definition of a “dangerous weapon” was “merely intended to clarify an element of the offense without requiring strict adherence to the beyond-a-reasonable doubt standard.” Citing Medley v. Runnels (9th Cir. 2007) 506 F.3d 857 (en banc) and United States v. Brooksby, (9th Cir. 1982) 668 F.2d 1102, which the majority had differentiated from Smith’s situation,

Nelson concluded that the trial court erroneously took the issue of whether Smith used a “dangerous weapon” away from the jury, and relieved the state of its burden of proof on whether a prison-made knife is a “dangerous weapon.” Nelson also expressly disapproved the continued use of Model Criminal Jury Instruction 8.5.

Deputy Federal Public Defender Davina T. Chen, who represented Smith also agreed that the model instructions should be amended.

“If the instruction is bad enough that the Ninth Circuit thinks the [model instructions] should be changed, then my client should benefit from the change….[because] the question of whether the knife was dangerous was actually litigated here…. If relief isn’t granted in this case, I can’t imagine relief will be granted in any case,” she said.

Chen said she will probably file a petition for a rehearing en banc. Assistant U.S. Attorney Craig H. Missakian, who prosecuted the case against Smith said: “Although the opinion said [the jury instructions] could have been improved, we felt the jury instruction read as a whole correctly stated the law…. We are grateful the majority saw it our way.”

The case is United States v. Smith, No. 05-50375.


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