Welcome to a BONUS OPEN-ACCESS Law of Self Defense Cases of the Week show for August 12, 2020. Normally our Cases of the Week shows are MEMBERS-ONLY content, but occasionally we come across one we’d like to share with the broader community, and this case is one of those.
Tuesday, July 28, 2020
You’ll note that, as always, today’s decision is linked to the full-text version of the decision–we do that to encourage you to go read the whole thing yourself. It’s the single best way to understand how the actual law of self-defense is applied to real people in real cases.
Although this case happens to be out of California, don’t lose interest if you’re from another state—the legal principles discussed in this case are largely applicable to the other 49 states, and where they’re not, I’ll be careful to point that out. In short, there’s a lot to learn from this case even if you live in another state.
As always, we’ll step through our plain-English explanation of this case in six steps: Overview of the case, Facts of the case, Law as it was applied at trial, Analysis by the appellate court, Outcome of the appellate court decision, and my own additional Comments.
This is fundamentally a murder-for-hire case, but one in which the hired murderer argued at trial that his shooting of the victim was actually self-defense. The appellate decision here is very long, and involves a wide variety of legal issues. Given our space and time constraints in these Cases of the week Shows we can’t possibly cover every legal issue in this case, so even more than usual I encourage you to click the link above to read the full-text of this case.
The specific legal issue I’d like to cover in this Cases of the Week is how the Defendant in this case “opened the door” for the prosecutor to introduce before the jury very damaging character evidence, where that evidence would have been excluded from the court room and unseen by the jury if only the Defendant had not “opened that door” by his own self-serving testimony.
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Fundamentally, this case involves an angry ex-wife (whose last name, ironically enough, is “Lovejoy”) who pays her love interest, the Defendant in this case, to murder her ex-husband, the Victim in this case. (Amazingly, the sum paid for the murder was a mere $2,000, with only half that amount up-front.)
Lovejoy and the Victim were married in 2007, had a son in 2012, and were having serious marital difficulties by 2014. In that year Lovejoy obtained a temporary restraining order against the Victim, effectively throwing him out of the marital home and denying him unsupervised access to his son, but falsely accusing the Victim of having sexually assaulted both her and their son. These accusations were ultimately found to be lies, and the Victim was awarded 50% custody of their son.
Meanwhile, the couple continued to proceed through a contentious divorce proceeding, finally settling in June 2016. As part of that agreement Lovejoy was to retain the family home but pay the Victim $120,000 as his share of the equity within 90 days of the divorce settlement.
The prior year Lovejoy had met the Defendant in this case, Weldon McDavid, a firearms instructor (!). They would ultimately begin a romantic relationship. Some months prior to becoming romantically involved, however, Lovejoy and the Defendant were already forming a plan for the Defendant to lure the Victim to a secluded area and murder him. Lovejoy agreed to pay the Defendant $1,000 initially, and an additional $1,000 once the Victim was killed.
The trial involved considerable circumstantial evidence consistent with this narrative of murder-for-hire. For example, the Defendant instructed Lovejoy to buy a “burner phone” to facilitate their communications, and sure enough Lovejoy later purchased such a phone at a local Best Buy. A few days before the killing of the Victim was to take place, the Defendant performed surveillance of the secluded area to which he intended to lure the Victim. Afterwards, investigators would find the Defendant’s DNA at that location.
On the day the killing was to take place, a night specifically selected for a new moon, the Defendant had Lovejoy drive him to the secluded location, and told her he would call on the “burner phone” when he needed to be picked up after killing the Victim. The Defendant brought with him some items belonging to the Victim’s son. He then called the Victim, told the Victim he was a private investigator with important information about the son, and said he would share that information with the Victim at the secluded location.
After hanging up with the Defendant, the suspicious Victim called the local police department and shared his conversation with the Victim. They said it seemed odd, but did not seem concerned. The Victim, still suspicious, asked a male neighbor to accompany him to the secluded location. The Victim carried a flashlight to see in the near total darkness, and the neighbor carried a baseball bat. Neither had a gun.
When the Victim and neighbor arrived at the secluded location they become increasingly suspicious and used the flashlight to scan the area. The Victim spotted the Defendant about 60 feet away, dressed in camouflage clothing and pointing a rifle at him. As the Victim and neighbor turned to run, the Defendant began shooting, hitting the Victim once in the back, and continuing to fire as the two men fled back to their car. Once in the car and driving away the Victim realized he had been shot, pulled over, and called 911. He would survive the gunshot wound to the back.
The Defendant then called Lovejoy on the “burner phone” and had her pick him up, telling her that he had “messed up.”
Investigative officers would find a piece of rifle brass and the Defendant’s DNA at the scene. They also learned that the phone used to call the Victim and lure him to the secluded area had been purchased at a Best Buy, and tracked surveillance data of the purchase to identify Lovejoy as the buyer.
A search of the Defendant’s home found an AR-15 hidden under foam and sleeping bags in the garage. A “brass catcher” was attached to the AR-15, and several pieces of brass were found in the “brass catcher.” They also found a camouflage jacket with dirt and plant material on it.
Lovejoy and the Defendant were collectively charged with conspiracy to commit murder and an additional count of premeditated attempted murder.
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At trial the prosecution’s narrative of guilt was one of murder-for-hire, as described above.
The Defendant’s defense was somewhat convoluted. He conceded shooting the Victim but, first, argued that he did so in self-defense when he perceived the Victim was about to shoot him, and second, that he could not have intended to kill the Victim because he’d been trained as an expert marksman by the Marine corps and if he’d wanted the Victim dead the Victim would have been killed.
It is this second part of the defense, the Defendant’s repeated and extensive references to his time and training in the Marine Corp, that led directly to the primary issue we’re discussing in this Cases of the Week: the opening of the door by the Defendant to very damaging character evidence that would otherwise have been excluded.
The damaging character evidence was that although it was true that the Defendant had served in the Marine Corp, he had ultimately been tossed from Corp under less than honorable conditions. The reasons for this dishonorable discharge were numerous, but key among them was additional damaging character evidence that the Defendant while serving had been convicted of two misdemeanor counts of unlawfully carrying a concealed firearm.
Normally character evidence not directly related to the criminal charges is excluded from a trial on those charges. Any Defendant is supposed to be judged by the evidence against him that’s directly tied to the charges he’s facing, not on some unrelated misconduct he might have engaged in at some prior date. So, under normal circumstances the Defendant’s dishonorable discharge from the Marine Corp and two misdemeanor gun convictions would have been excluded from the jury’s knowledge in this conspiracy to murder and attempted murder case.
There are, however, circumstances in which normally excluded character evidence is instead admitted into evidence. One of the ways this can happen is if a defendant himself “opens the door” to such evidence.
Say, for example, that a defendant had been convicted of misdemeanor theft some years prior, character evidence that would normally be inadmissible in a later assault case. In that assault case, however, that defendant introduces evidence at trial of his law-abiding character.
Well, if the defendant claims a law-abiding character, that “opens the door” to the prosecution to introduce the evidence of the theft convictions to rebut the defendant’s claim of being law-abiding. Had the defendant not claimed to be law-abiding the theft convictions would have been inadmissible, but by making that claim the defendant “opened the door” to those theft convictions being admissible.
In this particular case, the Defendant introduced considerable evidence of his time in the Marine Corp for two purposes, one specific and one general.
The specific purpose was to support his claim that had he intended to kill the Victim, the Victim would be dead, because he’d been trained as an expert rifleman by the Marine Corp. To this point he introduced as witnesses who were actively serving Marines who testified as to his expert skill with a rifle.
The general purpose was to have those same witnesses talk about his Marine Corp service in an effort to polish his apparent character in front of the jury. This trial was taking place in the San Diego CA area, proximate to the Marine Corp base at Camp Pendleton. Accordingly, there is a large Marine presence in the community, and the Marine Corp generally and marines in particular are generally held in high esteem.
In advancing this purpose, for example, one defense witnesses, an active-duty Marine name Kyzer who had been the Defendant’s supervisor in the Corp. Kyzer routinely referred to the Defendant as “Staff Sergeant [Defendant],” and testified that the Defendant was an expert shooter while in the Marine Corp.
The Defendant also took the stand and testified on his own behalf, focusing particularly on his expert rifle skills as trained in the Marine Corp as purportedly undercutting the prosecution’s claim that he’d intended to kill the Victim.
On cross-examination, the prosecution began to expose the fact that the Defendant had been tossed out of the Marine Corp on the basis of a less than honorable discharge. Rather than expose the normally inadmissible character evidence directly, the prosecution attacked it from the flanks.
The prosecution asked if the Defendant was still entitled to wear a Marine uniform, which an honorably discharged Marine would, but a dishonorably Marine would not. To this the Defendant responded in a misleading fashion that “[I]f I wanted to wear a Marine uniform, no one would stop me.”
The prosecution then asked if the Defendant would be privileged to re-enlist in the Marines if he wished, which an honorably discharged Marine would, but a dishonorably discharged Marine would not. To this the Defendant responded again in a misleading fashion, saying, “No, I’m too old now.” When pressed if age was the only reason the Defendant would not be permitted to re-enlist, the Defendant responded vaguely that another reason was “the re-enlistment code.”
At this point the prosecution got tired of the Defendant deflecting these questions touching upon the reasons for his discharge, and asked directly: “You were forced out of the Marine Corps against your wishes, correct?” This this the Defendant finally responded, “Yes.”
The prosecution would later also share with the jury the Defendant’s two prior convictions for misdemeanor unlawful concealed carry of a firearm, which contributed to the Defendant’s less than honorable separation from the Marine Corp.
Defense counsel objected to this exchange over the reasons for the Defendant’s departure from the Marine Corp, as well as the evidence of the two prior misdemeanor convictions, arguing that it was inadmissible character evidence.
The prosecution, in turn, argued that it was the Defendant’s continued references to his Marine Corp service as testament to his rifle skills and good character that “opened the door” to this normally inadmissible character evidence.
The trial court agreed with the prosecution, explaining its rational in some detail—specifically, that the court concluded that the defense had presented the Marine Corp evidence for precisely the reasons claimed by the prosecution, and that the Defendant had been less than honest in cross-examination. This conduct by the defense effectively “opened the door” to the admission of the bad character evidence.
The trial court therefore allowed the evidence to stand. Nevertheless, the defense objections preserved this character evidence issue for appeal.
During the Defendant’s testimony in his own behalf, he also provided his own narrative of innocence to contest the conspiracy to murder and premeditated attempted murder charges against him.
First, the Defendant conceded that he’d lured the Victim to the secluded area, but said that he did so not to kill the Victim but in an effort to get the Victim to implicate himself in child abuse. Specifically, the Defendant said that he falsely told the Victim that he had evidence the Victim had committed child abuse, and that the Victim could collect that evidence at the secluded area. Only someone guilty of child abuse would come to collect such evidence—a person innocent of child abuse would know that no such evidence existed—and thus the Victim’s appearance would be evidence of his guilt.
Second, the Defendant testified that when the Victim in fact showed up at the secluded area, having been informed by Lovejoy that the Victim owned a gun, the Defendant had brought his own AR-15 with him for personal protection. The Defendant testified that he only fired his rifle at the Victim when he perceived the Victim first pointing a firearm at him, thus making his shooting of the Victim an act of self-defense.
Ultimately, the trial jury declined to buy this narrative of innocence, and instead found both the Defendant and ex-wife Lovejoy guilty of conspiracy to commit murder and premeditated attempted murder.
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The Defendant appealed his conviction in part on the grounds that the trial court committed reversible error when it allowed the prosecutor to present evidence of his two prior misdemeanor convictions for carrying a concealed firearm as well as evidence of his involuntary separation from the Marine Corp.
The appellate court notes that the defense at pre-trial had moved in limine (meaning, an motion to exclude specific evidence from a trial) to prohibit the prosecution from introducing the involuntary separation from the Marine Corp and the prior misdemeanor convictions of the Defendant.
The court agreed to exclude this evidence, but on the condition that if the defense introduces evidence of the Defendant’s good character then the prosecution would be free to introduce the evidence of the involuntary separation and prior convictions.
As already noted above, the defense ended up introducing considerable evidence of his Marine Corp career in an effort to buttress his apparent character before the jury.
The appellate court also notes that trial courts are given broad discretion in making evidentiary rulings, and that the evidentiary decisions of the trial court will be reversed only if they are an abuse of the trial court’s discretion—meaning, that the trial court “exercises its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice.”
Here, however, the appellate court found that the trial court did not decided to admit the evidence of less than honorable separation and prior convictions in an arbitrary, capricious, or patently absurd manner.
To the contrary, the trial court’s stated reasons for admitting that bad character evidence fell directly in line with the long-standing allowance for permitting such normally inadmissible evidence to be admitted—that the defense “opened-the-door” to bad character evidence by first introducing evidence purported in support of the Defendant’s “good character.”
We conclude that the trial court properly allowed the prosecutor to question [the Defendant] about the reasons for his involuntary separation from the Marine Corps, and specifically, his two prior misdemeanor convictions. As the trial court explained, [the Defendant] initially opened the door to the admission of that evidence by presenting in his defense case [active-duty Marine witness] Kyzer’s and his own testimony regarding his Marine Corps training. Kyzer, an active duty Marine, testified regarding Marine Corps training in shooting and, in particular, [the Defendant’s] skills as a shooter while he was in the Marine Corps. Kyzer twice referred to [the Defendant] as “Staff Sergeant.” The trial court reasonably concluded that, by so testifying, Kyzer had painted a picture of [the Defendant] as being a “good Marine.
[The Defendant’s] testimony also implied that he had been a good Marine. He testified that he was a Marine from 1997 to 2009 and extensively described his training as a Marine. The trial court could have reasonably concluded that the testimony of Kyzer and [the Defendant], which was presented in the main defense case, created a positive image of [the Defendant] as having been a good Marine in general, and not just as a skilled shooter.
To counter that positive image created during the defense case, the prosecutor reasonably questioned [the Defendant] on cross-examination regarding whether he was permitted to wear a Marine uniform or eligible to reenlist in the Marine Corps. [The Defendant] answered: “No. I’m also too old now.” That incomplete and misleading answer opened the door to the prosecutor’s further questions regarding the circumstances of [the Defendant’s] separation from the Marine Corps, which resulted in his admission that the separation was not voluntary.
The appellate court also noted other misleading responses by the Defendant to questions about his separation from the Marine Corp.
The court of appeal affirmed the Defendant’s convictions for conspiracy to commit murder and premeditated attempted murder. (The court of appeal did, however, find some errors in the Defendant’s sentencing, and the case was remanded for the limited purposes of adjusting the sentencing accordingly.)
Bottom line, I wanted to share this case with all of you as a model for how normally inadmissible evidence that they jury would never see, and that could be really harmful to your defense if the jury does see it, can nevertheless suddenly be made admissible if you “open the door” to such evidence through your own testimony or the testimony of other defense witnesses.
Criminal defense is a strategic game folks, make sure you have a world-class strategist on your legal team to avoid these kinds of catastrophic failures.
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But what if you’re subject to a politically motivated prosecution? What if you do everything right, and yet you’re still having to go to trial?
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Remember: Hard to Kill, Hard to Convict
With that, I’ll let you all go except to remind all of you to remember, that if you carry a gun so that you’re hard to kill, make sure you also know the law so that you’re hard to convict.
Alright folks, I’m Attorney Andrew Branca for law self-defense.
Until next time, stay safe
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program