Unpublished Disposition, 896 F.2d 556 (9th Cir. 1987)

MEMORANDUM^* 

Terrell appeals from his conviction of first-degree murder in violation of 18 U.S.C. § 1111. We affirm.

* The parties do not dispute the pertinent underlying facts. On July 4, 1985, defendant Terrell and one Alexi Perez were inmates at the United States Penitentiary at Lompoc, California. Following a dispute between the two, Terrell, who had access to the hallways, reached into Perez's cell and, after a struggle, stabbed Perez. Perez died from the wound.

Terrell was convicted of first-degree murder by a jury in federal district court. Terrell now alleges eight errors by the district court and asks that his conviction be reversed.

II

Terrell first argues that the district court erred in refusing to instruct the jury on self-defense. We do not agree. To be entitled to a jury instruction, a defendant's theory of the case must have a foundation in the evidence. United States v. Makhlouta, 790 F.2d 1400, 1405 (9th Cir. 1986). Here, however, Terrell failed to carry his burden of producing evidence that his alleged fear of imminent bodily harm was objectively reasonable. He also failed to carry his burden of producing evidence that his alleged belief in the necessity of using deadly force was objectively reasonable. He was therefore not entitled to a jury instruction on self-defense; the theory did not have a foundation in the evidence.

Second, Terrell argues that the district court erred in instructing the jury that it might find malice if it found, in the absence of explanatory or mitigating circumstances, that Terrell had used a deadly weapon in the commission of a homicide. We are not persuaded. The instruction allowing a permissive inference was not error. See United States v. Washington, 819 F.2d 221, 225-26 (9th Cir. 1987) (upholding use of an instruction containing a permissive inference that "malice aforethought may be inferred from evidence of use of a deadly weapon").

Third, Terrell argues that the district court erred in refusing to instruct the jury on the import of any finding by it that Terrell had been provoked. We see no error in this instance. The district court fully instructed the jury on the lesser-included offenses of second-degree murder and voluntary manslaughter. The jury instructions given adequately covered the import of provocation. The district court did not abuse its discretion in refusing to give the proposed instruction. See United States v. Marabelles, 724 F.2d 1374, 1382-83 (9th Cir. 1984) (denials of jury instructions are reviewed only for abuse of discretion if instructions given fairly and adequately cover the issues presented).

Fourth, Terrell contends that the district court erred in refusing to instruct the jury that if Terrell had an honest but unreasonable belief in the necessity of defending against imminent peril to life, then he could have not killed with malice (an essential element of first-degree murder). We reject the contention. The proposed jury instruction was not supported by federal law, and the district court therefore did not err in refusing to give it. See Makhlouta, 790 F.2d at 1405 (9th Cir. 1986) (to be entitled to a jury instruction, defendant's theory of the case must have some support in federal law); see also 18 U.S.C. § 1111 (defining first-degree murder).

Fifth, Terrell argues that the district court erred in excluding certain extrinsic evidence of Perez's character trait of violence. We disagree. The district court allowed in certain evidence of Perez's character trait of violence; it did not, however, permit the introduction of such things as a copy of Perez's conviction for manslaughter. We are satisfied that the district court did not abuse its discretion in excluding the challenged evidence. See United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir. 1986).

Sixth, Terrell contends that the district court erred in denying in part his discovery motion, which sought any and all statements made by inmates or prison staff concerning Perez's death. Specifically, he contends that he had a right to pre-trial discovery of an FBI report of an interview with an inmate whom Terrell later called to testify. We reject Terrell's contention. He had an unviolated right to discovery of " 'evidence favorable to [him] ... where the evidence is material either to guilt or [to] punishment.' " United States v. Lehman, 792 F.2d 899, 901 (9th Cir.), cert. denied, 479 U.S. 868 (1986) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)) (emphasis and emendations ours). By his own characterization, the FBI report was extremely unfavorable to Terrell; he therefore had no right to Brady discovery of it.

Seventh, Terrell contends that the district court erred in permitting the United States to impeach him by raising during cross-examination his three prior felonies. We disagree. We are satisfied that the district court did not abuse its discretion in permitting impeachment in this manner; the court properly weighed the appropriate factors in reaching its decision in this matter. See Fed.R.Evid. 609(a) (governing the admissibility of evidence of prior convictions for the purposes of attacking the credibility of a witness); United States v. Givens, 767 F.2d 574, 579 n. 2 (9th Cir.) (setting forth five factors to be considered in determining such admissibility), cert. denied, 474 U.S. 953 (1985); Order (Mar. 18, 1987) (articulating district court's consideration of those five factors in making determination in the instant case).

Finally, Terrell argues that there was insufficient evidence of premeditation to support a jury verdict of first-degree murder. We disagree. The evidence at a minimum demonstrates that Terrell threatened to kill Perez and later armed himself, walked down the hallway, and stabbed Perez in the latter's cell. Viewed in the light most favorable to the government, see United States v. Power, 881 F.2d 733, 736-37 (9th Cir. 1986), there was substantial evidence of premeditation to support Terrell's first-degree murder conviction.

AFFIRMED.