No, not me.  My client.  Jury selection was this morning.  For real.

Defendant is charged with second degree murder after shooting alleged victim with a Ruger 10-22.  One shot, alleged victim died shortly after.

Facts:  Defendant in fear after having another guy pull a gun on him in a dispute over a girl.  Other guy, along with a friend of other guy, beat him up, stole his property and vandalized his house about five days earlier.

Client arms himself with a borrowed rifle.

Alleged victim comes over.  Client knows alleged victim is friends with previous assailant.  Client comes out of his house with rifle.  Alleged victim approaches him and backs him up into his own back yard.  Alleged victim closes distance grabs gun and client, client yelling at him to get back, get away.  Alleged victim persists and tries to wrestle gun from client.  Client falls to ground.  Fearing he's about to lose gun, client fires three shots.  One hit.  Assailant dies.  Client, who has no phone, runs across highway and calls cops.

Autopsy and witness interviews reveal alleged victim was on methamphetamine and alcohol.

One witness saw alleged victim back up defendant around defendant's residence, heard defendant yell at alleged victim, heard shots, but didn't see the shooting.

State's apparent theory is that defendant escalated the situation by bringing out a rifle, thus raising the level of force to deadly.  Defendant maintains if he didn't shoot alleged victim, alleged victim probably would have gotten gun and shot him.

Bad facts:  Defendant is a prohibited possessor, having a prior felony conviction for theft.  The Court has precluded the state from raising this issue.

You're on my jury.  Your vote?

Well, as long as the prior Felony is supressed and he can show that at the time he fired that he was in fear for his life. Which from what I see here, seems to be the case.

I would say: Not Guilty. Self-Defense.

The only problem I can see is the fact he had a gun in violation of the GCA. That will probably come back to haunt him later on. Even if the state doesn't charge him, the Feds still can.

yeesh. doesn't attorney client privilege mean anything?

Given the above facts: Not guilty.

If evidence allowed is, previous assualt by victim, victim is a current drug user and this was known by the alleged.

Then: Not guilty
Reason: Self-Defense

Any witnesses to the prior assualt? If so, were any threats made against the accused, by the victim or his friend?

He should have stayed inside the house and called out to people who might be able to call the police to come remove the perp for him...why do their work for them?  

Regardless of previous felony conviction, I say not guilty.  The fact that he illegally posessed the gun has nothing to do with whether or not the use was self-defense.

"Client comes out of his house with rifle"


Mistake!

Alleged victim is responsible for the escalation to deadly force.  The alleged victim could have left the scene at any time, but insisted to close with an armed citizen in flagrant disregard of the armed citizens demands to leave his private property.  In my opinion, the only reason for the alleged victim to close with the armed citizen would have been to inflict great bodily harm to, or murder the citizen.  

With the facts provided, I would vote your client to be NOT guilty of murder in the 2nd degree.



This is a classic example of a BS usage of the prohibited possessor for prior felony conviction.  If the "felon" can't be trusted with a firearm, then the "felon" should remain behind bars until they can behave in "polite society".

[b]Flame all you want.  You will only die with carpal tunnel syndrom![/b]  

No phone at his residence.  

You're trying your own case on the internet?

Defendent to Counsel, "What verdict did the guys at AR-15.com give?"

Counsel to Judge, "Your Honor, I have new a new exhibit, the poll results from AR-15.com!"

No phone? mistake #1

Coming outside? mistake #2

With no less-than-lethal stuff? mistake #3

Letting the high individual approach? mistake #4

By this time, if the high individual closes with you, you Are Forced To Shoot Him.

Reminds me of all the Discovery Channel documentaries where the narrator says, "An entire series of small mistakes led up to the tragic accident."

-------
"If Woody (Woodpecker) had called the police first, this never would have happened."

Dead guy Guilty as charged sentence to time served (get it[;D]??!!)

Alleged perp (Your CLient) Gets a medal for showing enough restraint to allow himself to be backed all the way in the back yard.

If it were me I never would have gone out of the house, let Mr. Dead break and enter, and shoot him several times while in my home.

Thank You and Good Night

Not Guilty...but.

I would have been the first or second strike on the state's list because during pre-selection questioning, I would have pointed out my interest in military style firearms.  

P389(no, not my real name[IMG]http://www.freakygamers.com/smilies/s/contrib/aahmed/biggrin.gif[/IMG]), you are excused from service...

 

As I understand it, the law requires you to flee if possible, except if you are within your home, in which case you can hold your ground. In this case, if he was backed against a wall or into a no escape situation, the ability to flee was non-existent and therefore he wasn't obligated to do anything other than fire when his life was threatened.

Right on the money.  Much better idea LtMac313, but defendant was still clearly in the right.  I second the motion to give him a medal for restraint, and further suggest that he receive a $50 reward for doing his part to cleanse the gene pool.

Your client would have been in a lot better shape if he stayed in his house, locked the door, and took cover.  It also doesn't look good that he brought the rifle outside.  In my mind, however, none of this negates that your client gave the victim ample opportunity to leave, and was seen backing away and heard yelling at the victim to "get back, get away."  It doesn't sound at all like the victim was acting in self defense when he approached your client; it sounds like he was trying to get your client's gun to shoot him with it.  I would vote not guilty.

The fact that victim was high is very helpful.

If I were on the jury, with the facts as described, I would have to say "not guilty".  Of course, we have not heard the prosecution's side of the story, or any witness' testimony.  I think your client did a dumb thing by coming out of the house, but from what you have stated, I would say under the circumstances that existed once he came out of the house, he had no choice....self defense.

I think there is way more to this, only time will tell.

Not Guilty

You neglect to mention if the rifle had a high capacity magazine and/or an assault style folding stock...[;D]

Now I don't know nuthin' 'bout no [i]voir dire[/i], but I do know most people, already cranky from having their daytime television viewing habits altered due to jury duty, will be easily seduced by the mighty sword of justice the judge is temporarily empowering them with (for many it will be the first time in their life to experience any sense of "power").  And since the average person is an idiot, what your peer's idea of what "common sense" may be might be troubling to say the least.

So, sad to say, your guy is [b]guilty[/b].

I would say 'Not guilty' as well, but, he did come out of the house already armed as if he expected trouble.  If he expected trouble, then he should have stayed inside and defended his home under the 'castle doctrine' (if it applies in AZ).  Coming out of the house armed would make it seem that he is the aggressor, and a prosecutor can say that the alleged victim came to apologize, but upon seeing the gun, preferred to 'disarm' him, and possibly not hurt him.  Prosecutors can think of any story (i.e. lie) to win their case.

Not guilty of murder in the 2nd.

If I were the DA, I'd accept a plea of Felony posession of a firearm.

Your client exited his residence, armed with a long arm for what reason?  To confront a trespasser?  I don't believe that threatened use of deadly physical force is justified for a simple trespass.  Threatened use of deadly physical force is justifiable for certain property related crimes, based on Title 13, chapter 4, but I really don't believe that trespassing is covered.

I would definately cover the legal reson why your client produced a weapon upon exiting his residence, and the rest becomes a matter of circumstances of fate (i.e. actions occurred beyond what your client could have reasonably known, and as such it put him in a position that he was forced to defend himself with deadly physical force, pursuant to the justifications within Title 13).  

If you client did in fact produce a weapon, outside of any lawful justification, and as such commited agravated assault in the least, he is in deep trouble.  He in fact placed the "deceased victim" in a position that he could have been in fear of death (which in fact occurred) or serious bodily injury, which could justify his actions in an attempt to disarm your client.  Which could mean that the jury would look at your client as the aggressor, and the deceased as a victim that was trying to legally use necessary force to protect himself.

I stand corrected:

13-407. Justification; use of physical force in defense of premises

A. A person or his agent in lawful possession or control of premises is justified in threatening to use deadly physical force or in threatening or using physical force against another when and to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises.



Points to clarify at trial, I would think:

1.  Your client was within the bounds of law, to believe that in order for him to prevent the criminal trespass he needed to threaten the use of deadly physical force.  It is reasonable to believe that the THREATENED use of deadly physical force would be necessary based on information known previously by your client (fill in the blank here), and in addition that he is known to be an associate of a person who previously placed your client in a position in which he could have been killed, or seriously injured.  Client also left the premises armed, beleiving that there was one KNOWN individual, but may have believed additional agressive individuals were nearby and possibly in hiding.

2.  As your client had no phone, he had no possible means of summoning help, withouth leaving his property.  As such he could not leave his property safely and needed a weapon to find a location from which he could summon help.

3.  Your client was within the bounds of law by defending his property with the threatened use of deadly physical force.  The victim, was in violation of statues prohibiting trespassing, pursued in agressive action against your client.  This then caused your client to exercise dedly physical force based on the justification of self defense.

A few other things to cover, but I can't type all day.

Based on Caliban law, you defendant is at fault for stepping outside of his house with a firearm.  Rule here is wait until intruder steps in house then shoot to kill.  It sounds like your DA likes Caliban law, pushing for 2nd degree murder. (Soon in your state too...Hahahaha)

In AZ I believe it's legal to pursue an intruder on your property, so not guilty.  Possession of firearm by felon can be wavered for self-defense reason.

Tough one.  Not guilty of 2nd Degree Murder.  Lesser included offenses such as one of the various flavors of manslaughter would depend on how you handle your end of the trial and your closing arguements.  Complete acquittal is a possibility.

Innocent.  Recommend for medal.  Donate money to opponent of prosecuter in next election.

I whish you were right. If an intruder breaks in and you can go out the back door.... in cali you beter pack yer bags and go. You have no right to self defense!

It sounds as if your client, once he came out of his home (not 'house'), armed for his own safety, considering the beating he had already received, retreated as far as he could before using deadly force to terminate the violent and perilous confrontation with the alleged victim!

The victim, seeing that your client possessed a weapon with which to defend himself and his home, nevertheless continued his aggressive advance toward your client to the point that he physically attacked your client.

Had your client been intent on taking the life of the victim, it could have been easily done in the front yard, or at any point up to the actual physical contact by the victim, by then, when no further retreat was feasible, your client acted solely to protect himself from certain death or great bodily injury!

And [b]no[/b] folks, client confidentiality has been maintained throughout this discussion - do you know the names of either of the parties, or have you been given information that would lead you to the identities of either of the two parties?

Eric The(Legal)Hun[>]:)]

Well, if this was an actual trial case and I was on the jury, you would get at least 1 person with a "not guilty" verdict. You're going to have a tough time convincing the rest of the jury members though. The questions that are going to go through my mind is why did he walk out of his house in the first place? What was his intent, when he came out with the rifle? If the client knew that he was being threatened, did he report all of this to the PD in the first place? (Yeah, I know there isnt anything the PD could do, but a paper trail is a good thing to have, for a lawyer to follow). If the client really was being threatened, why didnt he at least get/borrow a cell phone, pre-paid or otherwise to call the PD in such events? (A few years ago, you didnt even need to have a cell phone in service to be able to call 911, though that rule was in effect a couple of years ago, I am not sure if its still true today). How was he able to "borrow" a weapon? He is a felon. As a prosecuting attorney, these are just a few questions that I would have going through my mind. Now, liability court is going to be another matter. This guy is going to be paying somebody some money for an awful long time...

To the two "Nervous Nellies" referring to atty-client privilege, thank you for the concern but none is violated here.  Even if I named everyone involved none is violated here as this is all in open court and involves no confidentiality between my client and myself.  Most of this will be in the newspaper tomorrow following opening statements.

True, client should have stayed inside house.  Perhaps I should mention, however, that this "house" is really a cabover camper, situated on the ground, and the previous vandals had broken out all its windows.  Does that make coming out of the place, armed, more "reasonable?"

As someone suggested, I would dearly love to show the jury the results of the AR15 dot com poll, as I think only one of you has said "guilty" so far.

Today we heard from the witness who saw decedent backing up the defendant, and one of the responding officers.  Question of the day:  "Officer, would you shoot a man who was trying to take away your issued firearm by force?"  To which the prosecutor of course objected, indicating that lethal force from an officer is not the same thing as lethal force from a "regular" citizen.  Which is not true, as lethal force by both is justified only in the reasonable apprehension of death or serious physical injury to self or a third person.

Anyway, I was able to ask a variant of that question.  So far, so good.  I just would never want to be in defendant's shoes, no matter how this trial comes out.

There are several legal classes of killing:

Murder - Capital? (usually involves LEO or gov't official), 1st degree (premeditated), 2nd degree (acted out of anger)

Excusable homicide - while not innocent, this means a reasonable person with the knowledge that you had at the time would have done the same thing.  In other words, "Even though it wasn't right, I may have done the same thing myself."  This often applies to accidental discharges or mistaken identity shootings.  

Justifiable homicide - Righteous shoot.

Personally, I would tend to call this an excusable homicide.  The client contributed to the situation by leaving his residence and confronting the trespasser knowing it would likely erupt in conflict.  It's still very "excusable."  It's a tough call between excusable and justifiable (either way, the client walks).  

Please don't misunderstand me - if I saw someone trespassing in my yard I would confront them armed (hopefully with something better than a 10/22!!!).  I would avoid conflict and terminate trespasser if he poses unavoidable, immediate threat to my life.  If I knew someone had a beef with me and showed up in my front yard, I would not walk outside with my M-16 locked & loaded.  I would call police (not an option in this case), take pictures and barricade myself indoors.  In other words, suck up the macho stuff and wait for them to go away or put you in an unavoidable situation (B&E) so there's no question.  

If you have to shoot someone in self-defense, there is no winner - you just lose a little less.  Your post-shooting trauma (insomnia, impotence, nightmares, etc.), legal bills, possible jail time (you're trusting your fate to 12 randomly chosen non-gun-owners?) and other issues make you slightly better than dead.  You do not "win."  

I think the client was right, and hopefully learned a valuable lesson.  Hopefully we did as well?  

    Black Fox

A couple other things, the "prohibited possessor" charge was severed, meaning if defendant can walk on the murder charge, he will go back to trial on the prohibited possessor charge, where his chances are not as good.  But the "necessity defense" might help, given that defendant has no phone and lives in a rural area.  And if he gets convicted of that, at least he is not looking at double digit prison time.

Also helpful fact:  Previous assailants produced a gun, didn't point it at defendant, but one said, "one of these days I am gonna settle this whole thing."  Adding to defendant's reasonable apprehension of deadly threat.  Keep in mind, though, those people are not the same people as the guy defendant shot.  My client thought they were in cahoots, but no further known link.

Another helpful fact:  Decedent was 6-4 and 220, and a well-known "bully boy" around town.  We are seeking admission of reputation/character evidence.  Defendant is about 6 feet tall, but slight of build.

Thank you all for your comments, some of your insights may be helpful.

As far as bringing the weapon out side with him, did he "present" it in any way, or did it just happen to be in his hand? If he came out of the house ready to engage, that would count against him. I would consider the fact that he has no phone, and lives in a rural area, to be mitigating circumstances, so "I" would let him off the hook for the weapon charge. Disparity of force would cover the rifle vs unarmed assailant bit. As long as he didn't come out of the house with his weapon aimed at the other guy, I'd say not guilty. Even if he did present his weapon, everything else weighs very heavily in the defendants favor. Not guilty by reason of justifiable homicide.

Chairborne,

Hope you got paid up front - your boy, he's [b]guilty[/b]. He ought not have marched his ass outside. That was an escalation of the confrontation.

Don't worry - earn his trust - you can churn your client - work the appeals.

Good thing I am not on the jury, based on what you said - I'd thank him waxing the one asshole and then strap him down and inject him.

He needed to be a little brighter, lil more responsible.

Hope he didn't breed.

SIX, what the hell ?

Murder 2 means that he killed a person out of anger, etc. It means that he intended to kill the "victim" at the time he fired and that he did it for anger reasons, etc...

At the very most, if he did escalate the situation, which under AZ law, he had the right to confront the guy, the worst charge would be Manslaughter.

Manslaughter is when a person negligently kills another person, but didn't intend to kill them, it was an accident, or acted without a justifiable reason.

And SIX, If having a gun on you means that you are challanging a person, then every last CCW Holder according to you should be executed when they end up killing a person who attacks them. If the defendant did no threaten to murder the guy and point the gun at him, then he did nothing wrong. I sure as hell wouldn't have left my home unarmed. If he had had a Pistol under is jacket or in his pants, most would consider that OK. He only had a rifle, so he couldn't hide it from view when he confronted the guy.

Oh yeah, and we all seem to forget the SOB "Victim" was stoned on Methamphetamines, which are only slightly less potent than Crack-Cocaine. Meth Addicts have been shot and continued at the person before. Some have even killed the person after being mortally wounded themselves.

Also, this guy had been attacked before and his house would have been vandalized by these punks. If you ask me, he did the world a favor by removing that SOB meth addict from the face of the earth.

BTW, Clairborne add a Poll to the Post. Make It Multiple Choices.

What is your opinion ?:

1) Not Guilty Of Murder-2
2) Not Guilty Of Felon Posessing A Gun
3) Guilty Of Murder-2
4) Guilty Of Manslaughter *
5) Guilty Of Felon Possessing A Gun

*Lesser Charge Thrown In To See How People Would Respond. Omit If You Intend To Use These Stats. For Anything Other Than Personal Reference.

Alright sorry - I am in one of those moods - so I did not phrase it very nicely.

However, until the asshole has entered into the defendant's home and presented themselves as a threat to their life - I don't think it is right to have wacked him.

Walking out into the yard - yeah - no question that is adding fuel to the fire.

The guy should be smart enough to understand that this was going to escalate the event. He didn't. I would imagine the scene was something like this -

Billybaddass - come on tough guy, you wanna shoot me - shoot me - or I gonna really kick your ass.

Defendant - backing up - get away man or I really am gonna shoot you.

The defendant should have never walked out of the home - he had the choice to arm himself. And if the dead asshole had broken in and come after him - by all means - shoot him - many times. Walking out, prior to the other guy laying a hand on him, and confronting him in the yard - nope.

Gotta be smarter, gotta be more responsible.

Sorry my opinion

*I don't know what he would be convicted of - but it doesn't much matter to me. To wrongfully kill someone is all the same to me. Sure there may be a legal distinction and *maybe* even a reason to keep some of these folks around (read forced labor) but it would be a hard sell for me. I believe the death penalty is not an effective deterent because we dont use it enough.

Once again - sorry if this offends anyone - IMHO

Looking at this strictly within the scope of the Force Continuum, your client's principal mistake is the direct path to a lethal force encounter - instead of making available to himself a "less lethal" option (viz. Mace, pepper spray, "enhanced" hand-to-hand thru the use of a baton or suchlike...)

Looking at the situation as a whole, here are the facts as I understand them so far...

1) Primary residence is a truck camper.  Common size is usually 5x8 with approx 5' of headroom.  Thus, NOT the place for any forcible encounter.

2) Client is victim of RECENT force enounters.

3) Client feels necessity for "enhanced" or lethal force, thus the possession of a firearm in violation of his status as a "prohibited possessor."  While a seperate charge, possibility exists for the use of the "necessity defence," but a question remains - how long was he in possession of the 10/22?  Immediacy is the keystone of the necessity defence...

4) Client's primary residence damaged in prior encounter, recency unknown.

5) Even with client exiting residence obviously armed, victim pressed the attack.  NOTE - Victim in altered state of mind with chemical help!

6) While inside residence, path of retreat not available.  While outside retreat, reasonable path of retreat available AND USED until CQB struggle...

7) Shots fired in anger while attempting to maintain control of lethal force weapon.  Justifiable, as reason to believe exists that if victim gains control of weapon, it would be used against client...

Verdict - Not Guilty (Self-Defence)

Pitfalls -
1) Client has prior Felony conviction, and therefore liable for possession of firearm (severed.)

2) Client created immediate step to lethal force encounter.  No provision made for escalation.

3) Conditions of retreat and termination thereof - did victim overtake your client while retreating, or did client decided to hold ground after a point?  Could be important in the mind of the jury...

4) Length of time client possessed firearm.  Immediacy?  Percieved need?  Detail and defend your answer....

Feel free to contact me backchannel for clarification or to try out arguments?  I make a decent Devil's advocate...  And, while I make no pretentions of being a legal professional or an expert witness, I have conducted informal training in the force continuum and escalation of force, as well as the legal and moral duties attending hte use of deadly force, and I may be able to see things you are missing...  I will treat any communications as privileged.  

FreeFireZone
[email protected]

Clairborne, If it becomes Necessary, Massad Ayoob is the Pre-eminent witness for using Lethal Force. I have several videos he put out basically overviewing Lethal Force, etc.

He goes over exactly how fast a person, especially a drug-crazed maniac can:

1) Reach You
2) Gain Control Of Your Gun
3) Kill You

He gave a number of examples including a guy in NY who killed an attacker, who was charging him with a knife. The guy was convicted of Murder-2 because he didn't know the guy could have closed the distance in less than a second and therefore was not in immediate fear for his life. An appeals court knocked it down to Manslaughter and at the time the video was released he was still in a NY Prison.

I've never heard a corpse get called an "alleged victim" before.  Are you sure you're a lawyer??

I mean, seriously, some guy is dead.  He's obviously a victim.  The question is whether your client is guilty of murder or committed a justifiable act of self-defense.

Me, I'd say self-defense.  And even if the old crime came out somehow, who cares -- he's not on trial for illegal possession.

Thanks for your opinion, 71-hour.  He may be a "victim" at *your* house.  At my house, and at my client's house, he's a perpetrator.  "Victim" is short, in this case, for "victim of a crime."  He isn't.  Glad you are not on my jury.  If you were ever the defendant in such a case, I'll be happy to call your assailant, whom you thought was going to kill you, the "victim."

Thank you to the rest of you for your insights, especially Joe Black and FreeFireZone.  Trial resumes this afternoon.

Here's another interesting wrinkle:  Cops tested for powder blast from the rifle, to try and determine the range of the shot.  The cops, found only one piece of unburned powder on the decedent's clothing.  However, the presence of blood makes it harder to find powder evidence.  Also, defendant used ammo headstamped "U" and cops used CCI ammo, headstamped "C" for their tests.  Different ammo means different amounts of blast?

Has he been in trouble since his conviction.If not lets see:

1.Alleged victim showed intent to harm by beating the crap out of him and in greater numbers[friend] Had a firearm pulled on him.

2.Client knows alleged victim has a firearm so he didn't esculated he just matched it to protect himself.

3.No phone to call the police

4.He was about to lose the firearm.He had every indication it would be used on him.Just ask any of the arresting officers what they would do then.


Let me guess is the prosecuter running for office or just a dick.

Different ammo means many things, but primarily it means that most likely a different powder could have been used, as well as a different amount of powder could have been used, or even a different weight of bullet could have been used.  Even different casings have an affect on pressures/velocity/powder burn amounts.  Temperature also affects how powder burns (hotter temperatures typically means the powder burns a bit faster.  If the incident occured in summer, but the tests were done in fall/winter I would definately bring this up)

Different powders, burn at different rates.  If the police ammo is a faster burning powder (or less powder), there would be less unburnt powder residue, even at closer distances.  Bullet weight can also affect burn rates, but most commonly it means that a different weight of powder would be used.  Typically with a heavier bullet, less powder is used.  With less powder used, there would be less residue.

The foresnic evidence resultant from these tests, and provided by the state, cannot be valid. In order for it to be a valid test, they should attempt to duplicate the temperature, and at a minimum the exact weapon and ammo that was used in the original incident.  I would also question whether or not the individuals who conducted this testing have any background, training, or certification from the feds or independent laboratories.  If it is a small town, why didn't they refer it to AZDPS as is customary?  If it is a larger town, which has the ability to conduct it's own testing, why didn't they follow common forensic procedure?

I am sorely tempted to comment but I won't . . .

The rifle testing was conducted approximately two weeks from the shooting, which was in early February.  Shooting was at about 8:30 p.m., testing was in the afternoon, probably warmer but unknown.

The detective has no certification to perform this type of test.  And he used the wrong ammunition.  My own experience, particularly with .223, shows that different ammo has different amounts of blast, related to, I think, the burn rate of the powder.

The cops did send other materials to the DPS lab, including particularly the decedent's clothing.  On the clothing is where they found the *one" piece of gunpowder residue.  The lab tech will testify though that the heavy presence of blood makes it less likely to find such materials.  The detective in his test was of course shooting at a nice clean piece of white cardboard, not shooting at cloth, then soaking it in blood.  But that goes to weight, not admissibility.

This same detective didn't bother to fingerprint the rifle for presence of alleged victim's prints on the barrel because he "was pretty sure it already had been contaminated."  He'll hear about that one.

[b]Chairborne[/b]:

How did the tox screen on your horse come back?

Does billybadass have a history with violence and firearms?

Did Billybadass have a firearm on his person?

What is the background on the woman's involvement with the two men.

Did your horse have a history of abuse with the woman?