This week’s Cases of the Week, for the week ending March 20, 2020, includes the four most important and interesting appellate court decisions (case law) on use-of-force cases in the last week out of the following states:
Arizona, Idaho, Louisiana, and Texas
If your state wasn’t in that list, don’t lose interest, you can likely learn a lot from those cases even if your state is not listed, because the general principles of self-defense law are about 80% the same across the 50 states (naturally, the 20% difference matters, too).
At the text version of this content over at the Law of Self Defense website (lawofselfdefense.com) for each of these cases we provide a hyperlink to read the full-text of the court decision, which I urge you to do! Reading these kinds of appellate court decisions is how lawyers themselves learn how use-of-force law is likely to be applied to their real-world clients in real-world use-of-force cases. It’s also how the law is likely to be applied to you!
Issues covered in this week’s Cases of the Week include:
- Admissibility of character evidence and prior bad acts evidence in self-defense cases
- Manslaughter as a lesser-included offense of murder
- Voluntary manslaughter v. involuntary manslaughter
- Self-defense as legal defense to felon-in-possession charge
- Re-trial on some but not other charges if trial results in mixed verdict
- Conditions for a trial verdict being reversed and remanded for new trial
- Common law v. statutory law (in text)
- Threshold for receiving self-defense jury instruction at trial
We’ll be breaking down, or “briefing,” each of these cases in five major segments, to make them easier to digest and understand:
Facts: What happened in the use-of-force event.
Law: What use-of-force laws were applied at trial, what legal arguments were presented by the state and the defense, and what were the verdict and sentence at trial.
Analysis: The basis on which the defendant appealed his conviction, and the appellate court’s analysis of the claimed error.
Outcome: The appellate court’s conclusion.
Notes/Comments: Additional thoughts I have on the case.
This new format is a bit of an experiment, so I encourage all of you to provide feedback and let me know how you like it. Better, more value, prefer it this way, on the one hand, or simply too long, too detailed, too time-consuming, on the other. Let us know! Thanks!
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I’d also like to mention our sponsor, CCW Safe, a provider of legal membership services (what many mistakenly refer to as “self-defense insurance”). In effect, CCW Safe commits to covering your legal expenses if you’re involved in a use-of-force event, subject of course to their conditions of membership.
I’m a member of CCW Safe myself, as is my wife, and I encourage you to consider them as a means of ensuring you have the legal resources you need to win the legal fight if you’re ever involved in a use-of-force event. You can learn more about them by clicking the image or link below:
FREE! 5 Elements of Self-Defense Law Infographic
If you’re new to Law of Self Defense you’ll find us talking quite a lot about the 5 elements: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. These are the five legal building blocks of any claim of self-defense. For a prosecutor to destroy your claim of self-defense, and have a easy walk to your conviction, he merely needs to disprove any one of those five elements. The bottom line is that if you don’t know these five elements you do not–indeed, you can not–understand self-defense law.
The good news is that we offer an entire FREE! single-page “5 Elements of Self-Defense Law Infographic,” as a PDF download. It’s FREE, folks, as in it doesn’t cost a penny. I urge you to download this FREE! infographic and keep it at hand as you consume our content, so you’ll have the necessary foundational knowledge you need to really understand what we’re talking about in terms of self-defense law.
You can download that FREE! “5 Elements of Self-Defense Law Infographic” by clicking the image or link below:
Court of Appeals of Arizona, Division Two
March 18, 2020, Filed
The Defendant was driving his SUV when the Victim, apparently distracted on his phone, ran into the street in front of the vehicle. The Defendant braked, just avoiding the Victim, and yelled at the Victim angrily.
This escalated into a general verbal confrontation between the two men, as small things so often do. The Defendant then used his vehicle to “pin” the Victim against some bushes. The Victim responded by spraying the Defendant with pepper spray, then the Victim ran round the corner and hid. The Defendant responded after about a five second delay by retrieving a revolver and firing twice.
For having fired those two gunshots the Defendant would be charged with aggravated assault with a deadly weapon and unlawful discharge of a firearm within city limits. Only the aggravated assault charge is relevant to this appeal. Typically, aggravated assault with a firearm is a felony good for 10 to 20 years in prison if convicted.
At trial the Defendant raised the legal defense of self-defense. As part of that legal defense the Defendant sought to introduce into evidence a surveillance video that captured the Victim in a confrontation two years prior to these events. In that confrontation the Victim got into a physical confrontation with a woman at a gas station, with the two striking each other over some dispute over an air hose station.
The Defendant argued that the video showed that the Victim was prone to use disproportionate force in response to even modest provocation, and that the video was therefore useful to impeach the Victim’s credibility about his confrontation with the Defendant. He also argued that the video was evidence suggesting that it was likely the Victim, rather than the Defendant who was the initial aggressor in their confrontation.
The trial judge refused to admit the video, on the grounds that the two-years-earlier event was two far removed from the current event in time to be relevant to this case.
The jury would convict the Defendant as charged.
The Defendant appeals his conviction on the grounds that the trial court committed reversible error when it excluded the surveillance video of the Victim’s prior confrontation from evidence.
The appellate court notes that the general rule is that evidence of other crimes, wrongs, or acts is not admissible in a trial for an unrelated event. This rule is generally intended to protect criminal defendants from being found guilty of a current charge based on some alleged misconduct they might have committed in some unrelated event. It can also apply, however, to evidence about purported misconduct by other persons, in this case the Victim.
There is an exception to this general rule prohibiting evidence of prior bad acts, however, and that exception arises when the legal defense of self-defense is raised.
One of the elements of self-defense is Innocence, meaning that the person claiming self-defense must not have been the initial aggressor in the confrontation. This makes the question of who was the initial aggressor highly relevant, indeed even key, to the self-defense claim. As a result, if there is evidence that shows the Victim has a propensity for violence, and therefore suggests it is more likely the Victim rather than the Defendant who was the initial aggressor, then the evidence of the Victim’s propensity for violence may be admissible.
Here, however, the courts distinguish between two types of such evidence of propensity for violence.
The first bucket of such evidence is general character or reputation evidence—the person has a general reputation in the community for violence
The second bucket of such evidence is evidence of specific bad acts—there is a police report or surveillance video or something other evidence of the person committing a specific act of violence. This is the type of evidence in question in this case.
So, general reputation evidence, on the one hand, and evidence of specific bad acts, on the other hand.
Having defined these two buckets, the law then treats each of them differently in terms of their admissibility.
Evidence in the general reputation bucket may be admissible in court to show it was the Victim, rather than the Defendant, who was the initial aggressor, and this is permitted even if the Defendant did not possess that knowledge at the time. So, you’re attacked by a stranger, you defend yourself, you later discover evidence previously unknown to you that the person who attacked you has a reputation for violence, you can get that reputation evidence into court, despite you not having known it at the time.
Evidence of specific bad acts, however, is treated differently—this evidence is admissible only if you can prove that you possessed that knowledge at the time you acted in self-defense. If you weren’t aware of the attacker’s specific bad acts at the time you defended yourself against him, but only learn of those specific bad acts later, you cannot have that evidence of specific bad acts admitted at trial.
In this case the evidence sought to be admitted is surveillance video of a specific bad act of the Victim—his physical confrontation with the woman at the gas station—and the Defendant is not able to prove he possessed knowledge of that event at the time of his own confrontation with the Defendant.
The surveillance video evidence was therefore properly excluded by the trial judge.
The Defendant’s conviction for aggravated assault with a firearm is confirmed.
This decision makes numerous references to another important Arizona appellate court decision in the case of Harold Fish. Click here to read the Fish decision: State v. Fish 213 P.3d 258 (AZ Ct. App. 2009). The Fish case was quite high profile in its day, for a number of reasons. First, were the unusual facts of the case. Second, was the nature and outcome of the legal battle that followed.
Fish was walking on a narrow trail through a forest when he was charged by a pack of dogs. Fearing he was to be attacked, he drew his pistol (a 10mm Kimber) and fired a round into the dirt. This shot outraged the dog’s owner, the Victim in this case, who aggressively charged Fish. Fearing serious injury at the apparently maddened and much larger Victim, Fish shot the unarmed Victim once in the chest, killing him.
Fish would argue self-defense at trial and attempt to get admitted at trial evidence of the Victim’s violent character. That evidence was excluded by the trial court, and Fish was convicted of second-degree murder.
After spending years in prison, Fish’s appeal was heard, and the appellate court did a very detailed and comprehensive review of the laws governing the admissibility of character evidence in a self-defense trial. Ultimately the appellate court would reverse Fish’ conviction, and Fish was released from prison.
Unfortunately, it’s my recollection that Fish would die soon after of cancer, so in effect he spent several of the last years of his life in prison on a wrongful conviction.
In any case, for those of you interested in a detailed analysis of when character evidence may be admissible in a self-defense case, the Fish makes a good read.
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Our CONSULT Program is very popular, folks, because our legal consultations work. We naturally can’t guarantee a specific legal outcome in any particular case, but I can tell you we have a close to 100% record in either getting charges dismissed or having clients put into a diversion program where charges are dismissed if they keep their noses clean for some period of time.
In fact, just a few weeks ago one of our consult clients had murder charges dismissed on the eve of trial. This client had been prosecuted for three years and was going to trial the next month for murder and facing life in prison. Fortunately, for this client, two weeks after we consulted on the case all charges were dismissed. I’ll call that a win.
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The CONSULT Program has no such conditions or exclusions. If you’re a current CONSULT member, you get our consultation, period, regardless of the circumstances of the use-of-force event. You had a few beers at a backyard BBQ when you were attacked? CONSULT still covers you. You had to defend yourself against the abusive spouse you’re in the process of divorcing? CONSULT still covers you. You had to defend yourself while carrying concealed in a location the authorities say you shouldn’t have been carrying concealed? CONSULT still covers you. Period. No questions asked.
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The CONSULT Program coverage extends for the lifetime of your journey through the criminal justice pipeline. Naturally, you get our consultation in preparation for your trial. But what happens if you appeal your conviction? CONSULT still covers you. What happens if your appeal is successful and you get a second trial? CONSULT still covers you. A third trial? CONSULT still covers you. Period. No questions asked.
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Unless, that is, that person is a member of the CONSULT Program. In that case, we absolutely drop everything else we’re doing immediately, and shift all resources to that member’s case. Was I scheduled to teach a Continuing Legal Education class to defense lawyers, prosecutors, and judges? Cancelled. Was I scheduled to speak again at the FBI Academy in Quantico? Cancelled. Was I scheduled to be at NRA or SHOT or, for that matter, on a family vacation? Cancelled. CONSULT still covers you. Period. No questions asked.
Finally, there’s a fourth benefit, although frankly it’s among the least important, and that is that CONSULT Members get my immediately legal consultation, without limit, and without exclusions, at a fraction of the normal cost of many thousands of dollars. That’s a pretty substantial cost savings.
To be perfectly clear, there’s also a major difference between the CONSULT Program and the traditional “self-defense insurance” programs–those other programs purport to cover your self-defense legal expenses generally, whereas the CONSULT Program covers the cost of my legal consultation only. So, both of these types of programs would be best viewed as complementary to each other rather than as alternatives to each other. Indeed, I can tell you that there are founders of major “self-defense insurance” companies that are also members of the Law of Self Defense CONSULT Program, because even though they are covered by their own “self-defense insurance” they still see the additional value that the CONSULT Program brings to the table.
Best of all, you can lock into the CONSULT Program for only about 50 cents a day, folks. That’s about half-a-dollar a day, to make yourself enormously harder to convict. Interested? You should be.
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Court of Appeals of Iowa
March 18, 2020, Filed
These events involve an ongoing acrimonious relationship between two young men who shared an interest in the same woman, who at various times dated each of them. In the particular event, after the two men had an exchange of words, the Victim was sitting on the rear bumper of a pickup truck when the Defendant sped his own vehicle at the truck. Witnesses would testify that it was only because the Victim jumped out of the way that the Victim was not crushed between the Defendant’s vehicle and the truck.
After apparently attempting to crush the Victim, the Defendant emerged from his own vehicle with a knife in hand. The Victim landed the first blow, striking the Defendant in the head hard enough to knock the Defendant to his knees. Witnesses would then see the Defendant repeatedly “punching” the Victim—in fact, the Defendant was repeatedly stabbing the victim, including once in the heart, fatally.
The Defendant was charged with first-degree murder for the killing of the Victim, and the Defendant raised the legal defense of self-defense.
The jury ultimately convicted the Defendant of the lesser included offense of voluntary manslaughter.
The Defendant appeals his manslaughter conviction on the grounds of ineffective assistance of counsel—specifically, that his counsel had been ineffective for not making a motion for acquittal at trial based on his justification defense.
In a trial, if there is literally zero evidence to counter innocence—for example, if there is zero evidence on one of the required elements of the criminal charge, or the evidence of self-defense is absolute—the defense can request that the judge simply acquit the Defendant without the matter ever going to trial.
The idea is that in such a case there is no way for a rational jury to arrive at a guilty verdict, so there’s no sense leaving the decision up to them, just have the judge make the call for acquittal.
Here the court of appeals notes that the State prosecutors had plenty of evidence that countered the Defendant’s claim of self-defense. The court also noted the five elements of self-defense, and the legal reality that the prosecutors had to disprove only any one of those elements beyond a reasonable doubt. In fact, several of the elements were readily subject to disproof beyond a reasonable doubt.
Under those circumstances, the Defendant’s attorney was not ineffective for failing to request a judgment of acquittal where such a request would certainly have been appropriately denied by the trial judge.
The Defendant’s conviction for voluntary manslaughter was affirmed.
This case provides an opportunity to note the distinction between murder and manslaughter, and why manslaughter is a lesser included offense of murder.
Murder is unlawful killing with intent. Manslaughter is essentially an unlawful killing without intent. There are two distinct forms of manslaughter, each lacking intent for different reasons.
Involuntary manslaughter is when there is no intent to cause anyone harm, but the person acts in a way that creates a reasonably foreseeable risk of death, and an actual death results. A good example would be someone driving home drunk from a bar, who runs someone over and kills them. That person did not intend to kill anyone, but they engaged in conduct that created a reasonably foreseeable risk of death and someone died as a result.
Voluntary manslaughter is when there is an intent to cause harm, but the law deems the circumstances to be such that the killer could not reasonably have formed an intent to kill. Alternatively, the law says that although the killer had the intent to kill, that intent was the result of “sufficient provocation,” and thus should be distinguished from cold-blooded murder.
A good example would be the person who comes home to find their spouse in bed with another person. Enraged, the person whips out a gun and kills one or both of them. The circumstances can be said to have “sufficiently provoked” the killer to such an extent that he could not form a reasonable intent to kill, and thus such a killing should be distinguished from cold-blooded murder.
Often what happens, as here, is that a Defendant is charged with murder, and the defense will argue that, OK, we killed the Victim, but instead of convicting my client of murder you should recognize that there existed “sufficient provocation” and that my client is therefore really only guilty of the lesser included charge of voluntary manslaughter.
In this case the “sufficient provocation” would be the love interest for the same woman, and although the jury rejected the perfect defense of self-defense they did accept the mitigation defense of voluntary manslaughter.
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For those of you clicking over to the text version of this content so that you can access the full-text versions of these cases—which I strongly encourage you to do, the reading such appellate court decisions is how lawyers themselves learn how the law is likely to be applied to real clients in real use-of-force cases—you’ll find that you need to be a Law of Self Defense Member to access that post.
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Court of Appeal of Louisiana, Third Circuit
March 18, 2020, Decided
The facts of the case are pretty straightforward. The Defendant and the Victim got into an argument at the Victim’s home, and in an effort to encourage the Defendant to leave the Victim armed himself with a hammer. In response, the Defendant produced a gun and shot the Victim, killing him.
The Defendant was charged with second-degree murder, and also possession of a firearm by a convicted felon, generally called a “felon in possession” charge. The Defendant raised the legal defense of self-defense.
The jury acquitted the Defendant of the second-degree murder charge but convicted him on the felon-in-possession charge.
The Defendant appeals his conviction on the felon in possession charge essentially on the grounds that if his self-defense claim was good enough to acquit him of the murder charge, it should also have been sufficient to acquit him of the felon-in-possession charge. That is, if the jury believed self-defense, and they obviously did believe it given his acquittal of murder, then self-defense ought to have been a perfect defense to the felon-in-possession charge, as well.
Whether self-defense can be a legal defense to a felon-in-possession charge is actually pretty well settled law: the answer is, yes, it can.
For example, if a felon were visiting my home, arriving completely unarmed, and in the course of his visit my home was subject to a home invasion, and the felon quickly grabbed one of my pistols off my desk to defend against the home invasion, he could credibly and effectively raise the legal defense of self-defense as a justification for being transiently in possession of the firearm for the purposes of self-defense.
Where self-defense is not an effective defense to a felon-in-possession charge, however, is when the possession of the firearm is not transient and not limited in context to an imminent need for self-defense.
If we take the scenario I just described, but rather than grab a gun transiently for the purposes of defending against an imminent threat the visiting felon instead was habitually carrying around a firearm even in the absence of a habitual threat, self-defense would not be a valid justification for the carrying of the gun when there was no imminent threat present.
That’s where this Defendant trips up. He did not opportunistically pick up a gun to defend himself against the Victim’s hammer attack—he was already carrying the gun on his person before the hammer attack became imminent. That non-imminent possession of the firearm is what self-defense cannot justify, and therefore the conviction on the felon in possession charge was appropriate.
The Defendant’s felon-in-possession conviction is affirmed.
This case does raise the opportunity to talk a little about the difference between common law and statutory law. Back in the day, a hundred, two hundred and more years ago, statutory law—law written into a statute enacted by a legislative body—was relatively rare. Most law was common law—that is, common practices of legal principles as captured in writing by court decisions.
Over time, states in the US began codifying their common law, and creating actual statutes to reflect those underlying common law legal principles. It general this is a good idea, and it ensures that everyone’s working off a single version of a criminal law, the statutory version.
Nevertheless, the old common law is not necessarily done away with. Where a statute has been enacted, the old common law for that specific legal principle is generally no longer in effect, the statute replaces the common law principle.
But what about where the statute replaces only a small segment of a common law principle? Then the remainder of the common law principle remains in effect.
This comes up sometimes in the context of the legal defense of self-defense. Most states now have a use-of-force justification statute or statutes focused on self-defense, defense of others, and defense of property. Where such statutes are in place, the old common law generally doesn’t apply.
But there are traditional applications for the justification defense that are broader than self-defense, defense of others, and defense of property. In this case, for example, the Defendant was attempting to use the justification defense as a defense against the criminal charge of being a felon-in-possession—and that’s an application of the justification defense permitted under the old common law, but not addressed by statute.
Where the use of a justification defense is permitted under common law, and not addressed by statute (either favorably or unfavorably), then it can be raised as a legal defense, as it was here. And with all the restrictions and conditions we saw applied here.
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Court of Appeals of Texas, Thirteenth District, Corpus Christi – Edinburg
March 19, 2020, Delivered
The Defendant was sleeping with a woman with whom he’d also been engaged in some substantial drug transactions. During the night the Defendant heard breaking glass, and the woman suspecting it was her estranged husband left the room to investigate. Indeed, the intruder was the estranged husband, who would become the Victim in this case, and he pushed his way past the woman and into the bedroom where the Defendant was located.
The Defendant had merely positioned himself off the bed and armed himself with a gun, fearing that the woman had arranged for him to be robbed of his drugs and money. Then the Victim entered the room, the Defendant pointed his gun at the Victim and told him to stop. When the Victim continued to advance the Defendant fired once. The round struck the Victim below the eye and exited out the back of his head, killing him instantly. At the urging of the woman, the Defendant then fled the scene.
The Defendant would later be indicted for first-degree murder and tried on that charge before a jury.
When the Defendant sought a jury instruction in deadly force self-defense, the trial judge refused the instruction. The judge accepted the prosecution’s argument that there was only a speculative basis for the Defendant to have feared a deadly force attack from the unarmed Victim, and that absent a deadly force attack the Defendant could not, as a matter of law, have been privileged to use deadly defensive force.
During deliberations the jury sent a question out to the trial judge asking about the relevance of self-defense to the case, and the judge answered that he had taken self-defense off the table on the facts of this case, and told the jury that they were not to consider self-defense as a justification for this killing.
The jury found the defendant guilty of first-degree murder, and the defendant was sentenced to 99 years in prison.
The Defendant appeals his conviction, understandably enough, on the grounds that he should have been entitled to the deadly force self-defense jury instructions.
Appellate courts almost will never re-examine the fact finding that occurs in a trial, but they are more inclined to do so when that fact-finding is done by the trial judge, as here. Remember, the jury didn’t decide this wasn’t possible lawful self-defense deadly force based on the evidence, the trial judge made that finding when he refused to instruct the jury on deadly force self-defense and explicitly took the defense off the table. Normally it is the jury who is supposed to play the role of fact-finder, not the judge.
So here the court of appeals reviews the reasonableness of the judge’s fact finding that only speculation could have led to a perception of a deadly force threat by the victim, and they conclude that there was plenty of evidence from which the Defendant might reasonably have perceived a deadly force threat:
“Viewing the evidence from [the Defendant’s] perspective and in the light most favorable to the requested instruction … we note the following relevant facts: (1) [the Defendant] heard someone break into the apartment late at night; (2) [the woman] left the room and closed the door behind her; (3) [the Defendant] heard a male voice in the living room; (4) the unknown intruder entered the bedroom where [the Defendant] was located; (5) [the Defendant] did not have a way to escape the room; (6) he told the intruder to “hold up”; (7) he displayed a gun to deter the intruder; (8) the intruder [Victim] continued toward [the Defendant]; (9) the intruder appeared to be under the influence of drugs; (10) he could not tell whether the intruder had any weapons; (11) the intruder, who was six feet tall and weighed 205 lbs., stepped toward him as if he were going to attack [the Defendant]; and (12) [the Defendant] fired his weapon when the intruder was close enough to touch him.”
The Defendant’s conviction and sentence are reversed, and the case is remanded for a new trial, at which Defendant will receive deadly force self-defense jury instruction.
After Action Analysis Show: LIVE Every Tuesday, 2PM ET
Before we move on to the next case in this week’s Cases of the Week, I would like to remind all of you about our weekly After Action Analysis Show, which takes place LIVE here on the Law of Self Defense Facebook page every Tuesday, at 2PM ET:
Our After Action Analysis Shows take a use-of-force event captured on video, and then do a plain-English, 5 elements of self-defense law legal analysis of whether the use of force was lawful or not lawful, why that’s so, and what other facts might change that analysis.
It’s simply one of the best ways to learn how use-of-force law applies to real people in real-world cases of self-defense and defense of others.
We conduct the After Action Analysis Shows live specifically so all of you can pose questions, ask for clarification, explore alternative scenarios, and otherwise leverage the world-class use-of-force law legal expertise we work to bring to all of you.
The After Action Analysis Show is the only Law of Self Defense content that’s on a regular live schedule, so be sure to mark it in your calendar! So, be sure to join us here tomorrow, as every Tuesday, at 2PM ET, for the next LIVE episode of the Law of Self Defense After Action Analysis Show.
So, a quick recap of all our plugs before we wrap up:
- Our sponsor CCW Safe, learn more about them at http://lawofselfdefense.com/ccwsafe and use discount code LOSD10 to save 10% on your membership.
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Attorney Andrew F. Branca
Law of Self Defense LLC
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