UNITED STATES COURT OF APPEALS September 9, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-7017

ELIJAH DEWAYNE HICKS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00379-BMJ-1) _________________________________ Stuart W. Southerland, Assistant Federal Public Defender (Scott Graham, Interim Federal Public Defender, and Robert Ridenour, Assistant Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Muskogee, Oklahoma, for Defendant- Appellant. Lisa C. Williams, Special Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with her on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee. _________________________________ Before BACHARACH, BALDOCK, and KELLY, Circuit Judges. _________________________________ BALDOCK, Circuit Judge. _________________________________

Defendant Elijah Dewayne Hicks shot and killed his cousin Timothy Ray Buckley in the middle of a residential street. Defendant knew Buckley had a long Appellate Case: 23-7017 Document: 55 Date Filed: 09/09/2024 Page: 2

history of violence in the community when intoxicated, as he was at the time of the shooting. Defendant offered evidence that Buckley knocked out his own girlfriend and then charged after him. Defendant shot Buckley four times and claimed self-defense. The Government, on the other hand, theorized Defendant intentionally murdered Buckley because he had disrespected him, pointing to a plethora of non-lethal alternatives Defendant could have exercised. Defendant recognized the issue as critical to his defense and requested a one-sentence instruction from our decision in United States v. Toledo, informing the jury he had no legal duty to retreat or exhaust alternatives before acting in self-defense. 739 F.3d 562 (10th Cir. 2014). The district court refused. We hold that refusal deprived the jury of important law governing Defendant’s sufficiently raised self-defense claim and prejudiced his case. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for a new trial.

I.

Timothy Buckley, his mother, Eugenia Holahta, and his girlfriend, Jessica Harjo attended the Watermelon Festival in Hanna, Oklahoma. Buckley and Harjo had been drinking “a lot” of alcohol, including fruit soaked in liquor. On the way home, Buckley and the others stopped by a store in Hanna so Buckley could buy a six pack of beer. Continuing their journey, they stopped at Buckley’s sister Elizabeth’s house around 11:00 p.m. After visiting inside for a while, Buckley and the others gathered around the back of their vehicle in Elizabeth’s driveway to converse.

Defendant celebrated his birthday that same evening. Sometime before midnight, Defendant and his cousin Jaylon Heneha walked down the street in front of

2 Appellate Case: 23-7017 Document: 55 Date Filed: 09/09/2024 Page: 3

Elizabeth’s house on their way to a party a few blocks away. As Defendant passed by the house, Buckley shouted something to the effect of: “Hey, get over here.” Buckley intimidated Defendant. He was 6’2” and 281 pounds. Defendant knew he had a reputation for violence when drunk. He