Cases of the Week: May 12, 2020

Hey folks,

This week’s Cases of the Week, for the week ending May 8, 2020, includes the three most important and interesting appellate court decisions (case law) on use-of-force cases in the last week out of the following states:

Pennsylvania, Texas, and Georgia (Supreme Court!)

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!

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Commonwealth v. Nazario, 2020 Pa. Super. Unpub. LEXIS 1485 (PA Superior Court 2020)

FACTS:

Per eye-witnesses, the Defendant was driving in his car on a cold February night in an area known for drug dealing and gun crime. He was approached by the Victim, who was a pedestrian. The Defendant slowed his car to a stop, the Victim approached the passenger side window, and the Defendant shot the Victim, who would die as a result. The Defendant immediately fled the scene.

A year later the police are finally interviewing the Defendant about the shooting, and the Defendant denied any involvement, whatever. However, a gun found in the Defendant’s possession was matched to a cartridge case collected at the crime scene and the bullet recovered from the Victim’s body. Interviewed a second time, the Defendant conceded that he’d shot the Victim

The Defendant claimed that he was driving along when he saw the Victim approach the passenger side of his car on foot. The Defendant stopped his car and rolled down the passenger side window in case the person approaching was in need of assistance. (Definitely not to make a drug purchase.). According to the Defendant, the Victim then began to force his way into the vehicle through the open window, and reached as if for a weapon. The Defendant then presented his own pistol from his lap and shot the Victim twice, before fleeing the scene.

There was, of course, conflicting evidence, including that of an eyewitness who would testify that they saw no attempt by the Victim to enter the Defendant’s vehicle. It should be noted that the eye witness was an admitted heroine addict who was high on that drug at the time.

Also, no weapon was found on the Victim’s body. That’s not decisive, of course, as a defender is permitted to rely on the reasonable appearance of a threat, and is not limited to defending against only an actual threat, but had a weapon been discovered it would have strengthened the defense narrative.

Finally, the medical examiner found no soot or stippling on the Victim as would be typical had the Victim been shot within a foot or two of the muzzle, suggesting the Victim was three to four or more feet away when shot, which would obviously place the Victim outside the vehicle.

The Defendant would be charged with first-degree murder.

LAW:

There were several legal arguments raised by the Defendant.

The first was straight-up old-school self-defense, based on the narrative just described.

The second was imperfect self-defense. Imperfect self-defense occurs when you have a mostly OK claim of self-defense but your use of force was not objectively reasonable. That is, you may have had a genuine, good faith belief in the need to use defensive force, but a hypothetical reasonable and prudent person in the same circumstances would not have, and that failure of reasonableness is the only defect in your claim of self-defense.

Imperfect self-defense, unlike perfect or normal self-defense, is not a legal justification that can result in an acquittal, it can’t make the use of force not a crime. What it can do, however, is if the victim of your use of force dies, it can mitigate what would otherwise have been a murder conviction to a manslaughter conviction. So, instead of being sentenced to potentially life in prison without possibility of early release, be sentenced to maybe 10-20 years with possible parole in as little as 3 or 4 years.

Both the self-defense and imperfect self-defense jury instructions would be read to the jury by the trial judge.

The defense also requested a jury instruction on highly defensible property. Under Pennsylvania law an occupied vehicle qualifies as highly-defensible property much as does your home. And in the context of highly-defensible property Pennsylvania is among the states that creates a legal presumption of justification when defending against a forcible and unlawful intruder.

In this case, the defense is arguing that the Defendant was defending his highly-defensible property, his occupied vehicle, from the forcible and unlawful intrusion of the Victim.

What the legal presumption does for you is basically give you several of the elements required to justify your use of deadly defensive force. In the case of Pennsylvania, that legal presumption is found in §505, and it provides in that a person defending highly-defensible property against a forcible and unlawful intruder is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself against death or serious bodily injury.

In other words, the legal presumption in effect gives you three of the five elements of self-defense: the elements of imminence, proportionality, and reasonableness.

Such a legal presumption is obviously highly favorable to the defense, which is why the defense asked the judge to give that legal presumption instruction to the jury.

Despite having requested the legal presumption instruction, however, the jury was not given that instruction.

Ultimately, the jury would find the Defendant guilty as charged of first degree murder, and he was sentenced to life imprisonment.

ANALYSIS:

The Defendant appeals his conviction on the basis that it was reversible error for the trial judge to fail to instruct the jury on the legal presumption of reasonable defense of highly-defensible property, especially after he had specifically requested that instruction at trial.

You’ll remember that in order for an error to be a reversible error that justifies given a convicted defendant a new trial, three conditions must be meet:

First, the error has to be preserved for appeal, usually by an objection a trial.

Second, the claimed error has to be determined to be an actual error.

Third, the error would have likely changed the outcome of the trial.

Let’s take those in reverse order.

The third, condition, would the legal presumption instruction have changed the outcome of the trial? Well, it very well could have, because it hands the defense three of the five elements needed to justify deadly force self-defense. That reduces the number of points for a prosecutor to attack in this case from three elements to just two: innocence, by claiming that the Defendant was the initial aggressor, or avoidance, that the Defendant violated a legal duty to safely retreat.

That to me suggests strongly that had the legal presumption instruction been given to the jury it might very well have changed the outcome of the case—if not to an acquittal then perhaps to a finding of imperfect self-defense and a conviction of manslaughter rather than murder.

So, let’s check off that third condition as justifying a reversal and new trial.

The second condition, was the claimed error an actual error? Is it true that the trial court should have instructed the jury on this legal presumption of reasonableness, and the failure to do so was therefore error on the part of the trial court?

Well, in fact, we never get to that part of the analysis, because this Defendant’s appeal trips up on the very first requirement:

And that is that the error has to be preserved for appeal, usually by an objection at trial.

In this case, the defense requested the jury instruction on the legal presmuption, and even presented the trial court with preferred language for the legal presumption to be read to the jury.

When the judge actually read the instructions, however, he left out the legal presumption instruction. And when he was done instructing the jury, without the legal presumption instruction, he turned to the defense and asked if the defense had any objections to the instructions as given.

The defense response: “No objection, your Honor.”

Without that objection the issue of the legal presumption jury instruction was not preserved for appeal, the appellate court refused to consider it as a basis for reversal and a new trial. It was simply off the table for purposes of an appeal.

OUTCOME:

The Defendant’s conviction for first-degree murder and life sentence was affirmed.

COMMENTS:

Note that the appeal on the basis of the denial of the legal presumption jury instruction was not made on the legal merits of that argument about whether the instruction should have been given or not.

It was denied for the technical reason that it had not been preserved for appeal by an objection from the defense counsel at trial.

Why didn’t the defense counsel object, and thereby either ensure their client got the desired legal presumption instruction or at least had the issue preserved for the appellate courts?

Who knows? Maybe it was for some strategic reason, although that seems hard to credit. Maybe the defense counsel was distracted, and though that the requested legal presumption instruction had been included, even though it wasn’t. We’ll probably never really know.

But that lack of objection was all it took to remove any actual legal argument on the merits about that legal presumption of reasonableness as a basis for a new trial, period.

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Reese v. State, 2020 Tex. App. LEXIS 3771 (TX Ct. App. 2020)

FACTS:

The Defendant and the Victim were two males known to each other, and with an acrimonious relationship. On August 28, 2018, the Defendant was speaking with some friends outside his apartment when the Victim approached. The Defendant would claim that the Victim’s approach was aggressive, that the Victim made an apparently threatening verbal statement, and that the Victim reached for his waistband as if for a weapon.

In response, the Defendant drew his own handgun and shot the Victim three times, resulting in the Victim’s death.

The Defendant was charged with murder, and various prohibited persons gun crimes.

LAW:

At trial the Defendant testified he shot the Victim in self-defense, both because of the victim’s claimed threatening conduct at the scene, but also because he had a prior interaction with the Victim in which the Victim had fired a gun towards him.

In support of this latter claim the Defendant tried to get admitted into evidence testimony about the Victim having engaged in other specific acts of violence, for the purpose of buttressing his claim that it was the Victim who was the initial physical aggressor in his fatal confrontation with the Defendant.

In particular, the Defendant wanted to introduce testimony by several witnesses of specific prior acts of violence by the Victim—one being testimony by a witness of a time when the Victim pulled a gun on some other person, another being testimony by another witness that the Victim had been frequently seen with a gun in his waistband, and a third being testimony by a third witness claiming the Victim had previously robbed them.

The trial court refused to allow any of this prior bad acts evidence about the Victim to be introduced into evidence.

The Defendant was convicted of the murder and the gun crime charges, and sentenced to sixty years.

ANALYSIS:

The Defendant appeals his conviction on the grounds that the trial court committed reversible error when it refused to admit the prior bad acts evidence about the Victim.

The court of appeals then steps through the evidentiary framework under Texas law under which this kind of character evidence can be admissible in court.

Generally speaking, character evidence is inadmissible. A case is supposed to be judged by the direct and circumstantial evidence relevant to the specific acts for which the Defendant is criminally charged, not because of some claims about the Defendant’s character generally. The concern is that character evidence may be more prejudicial than it is useful.

There are, however, some exceptions to this general prohibition, particularly in terms of self-defense cases.

To understand how these exceptions work, we need to understand the two distinct types of character evidence, and the whether it is required that the Defendant had knowledge of that character evidence at the time of the event.

The two types of character evidence or evidence of general reputation—for example, someone has a general reputation in the community for violence—and evidence of specific prior bad acts—for example, someone committed a particular armed robbery of a specific person.

The more prejudicial form of character evidence is that of specific prior acts, the least prejudicial is that of general reputation, so when the courts being to make exceptions for character evidence it is common that it is easier to meet a lower threshold for such an exception, to allow into evidence, general reputation evidence than is the case for specific bad acts evidence.

So, those are the two types of character evidence: general reputation, and specific prior bad acts.

The next factors we need to consider is whether the Defendant had personal knowledge of the evidence in question at the time he acted in self-defense. Either he had knowledge of that evidence at the time, or he did not.

So, with two types of character evidence and two states of knowledge, we can set up a 2 x 2 matrix, like we have here.

Note that this framework is relevant to most, probably all, states, but not ever state comes to the same decision within that framework—there is variance in these evidentiary rules. In this case we’re discussing how Texas deals with these questions—a different state may do things differently. But knowing this conceptual structure will help you understand how it is applied in any state you look at.

So, looking at this matrix from the context of Texas evidentiary law:

If the character evidence being offered was known to the Defendant at the time, it is admissible regardless of whether it was general reputation or specific prior bad acts evidence. And the reason for this is that this evidence known to the Defendant at the time could have played a role in the Defendant’s perceptions, decisions, and actions in self-defense, and so it is relevant to that claim of self-defense.

If, however, the character evidence being offered was NOT known to the Defendant at the time, it is admissible ONLY if it is in the form of general reputation evidence. If the character evidence is in the form of specific bad acts evidence, and those specific bad acts were not known to the Defendant at the time, they are not admissible.

In this case the Defendant sought to introduce evidence in the form of testimony from witnesses about specific bad acts of the Victim. Howeve, the Defendant was unable to demonstrate that he personally possessed knowledge of those prior bad acts at the time he shot and killed the Victim, as opposed to having learned of them only later.

Because the character evidence offered was of specific prior bad acts of the Victim and the Defendant could not demonstrate knowledge at the time, it was appropriate, and not reversible error, for the trial judge to exclude testimony of that character evidence from the jury.

OUTCOME:

The Defendant’s convictions for murder and gun charges and 60-year sentence were affirmed.

COMMENTS:

Remember, folks, if you are planning to introduce into court evidence that is relevant to your perceptions, decisions, and actions in self-defense, that is to your state of mind, it is essential that you be able to demonstrate that you possessed that knowledge at the time you acted in self-defense, or it may be deemed inadmissible.

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Whitehead v. State, 2020 Ga. LEXIS 336 (GA Supreme Court 2020)

The lesson of this case is partly that circumstantial evidence, often treated with contempt in movie and TV court room dramas, is perfectly good evidence, and more than adequate to get someone sentenced to prison for the rest of their lives.

FACTS:

In this case, a group of four people, including defendant and victim, both males, were in a hotel room socializing and drinking. Another male and a female were also present.

At some point there was a knock on the hotel room door. Both the Defendant and the Victim drew handguns. The Defendant ordered the woman present into the bathroom, where she went and closed the door. The third male was near the door of the room.

There was a gunshot. The woman emerged from the bathroom to see the Defendant holding a gun, which he briefly pointed at her. The Defendant and the third male fled the scene. The victim was on the floor, shot and bleeding out. The woman called 911. The Victim had been shot clean through the head, would have been immediately incapacitated, and would ultimately die of his injury.

The Defendant was charged with murder and other charges.

LAW:

The Defendant would eventually concede under police interview that he shot the Victim, but claimed that he had done so in self-defense (remember, the Victim also had presented a gun when the knock on the hotel room door occurred). Notably, there was no direct evidence to dispute the claim of self-defense.

Despite this claim of self-defense, and the absence of any direct evidence contrary to self-defense, the Defendant was convicted as charged of murder and other charges.

ANALYIS:

The Defendant appeals on the basis that no rational jury could have reasonably concluded that his claim of self-defense had been disproven beyond a reasonable doubt in the absence of any direct evidence inconsistent with self-defense.

In effect, this case involves situation where the only two real witnesses possessing direct knowledge of what happened was the Defendant and the Victim, and the Victim was dead. Does that mean there’s no way for the prosecution to disprove self-defense beyond a reasonable doubt?

You’ve all heard the cliché: If you have to shoot someone, make sure you shoot them dead, that’s way there’s only one witness?

Is that true that this would leave only “one witness”? Or is it true that there always at least one second witness, and that’s the forensics evidence? And probably also circumstantial evidence?

Yep.

No, because even though in this case no direct evidence contrary to self-defense there was plenty of forensic and circumstantial evidence inconsistent with self-defense.

Further, because the Defendant gave a rather extensive explanation of events when questioned by police, including claims to support self-defense, his statement was grossly inconsistent with the available forensic and circumstantial evidence.

Consider the forensic evidence, and how it was inconsistent with the Defendant’s narrative of self-defense.

First, in his interview with police the Defendant claimed that he shot the Victim only after the Victim pointed his own gun at the Defendant, pulled the trigger, and there was an audible click. In fact, although the Victim’s gun was recovered the scene, the safety was engaged. For the Defendant’s story to be consistent with the facts it would have been necessary for the Victim to point his gun at the Defendant, press the trigger, drop the hammer, get shot clean through the head, then re-engage the safety before dropping mortality wounded to the ground.

Second, the medical examiner testified that the fatal bullet, .45 caliber, entered the Victim’s skull above and behind the right ear and exited above the left eye. This is obviously inconsistent with what the Victim’s body position relative to the Defendant would have been had the Victim been aiming his own gun at the Defendant, and rather suggests that the Victim was looking away from the Defendant when shot.

Video cameras outside the hotel room captured the Defendant and the third man fleeing the hotel room, and also show the Defendant briefly crouching by a bush before running off. The Defendant’s .45-caliber gun, with the Defendant’s DNA on the weapon, would be found at the base of that bush. Concealing evidence constitutes consciousness of guilt evidence from which a jury can infer that not only does the prosecution think the Defendant is guilty, the Defendant’s own conduct suggests he himself things he is guilty.

The fact that the Defendant fled the scene, and did not contact the police to discuss the shooting until the next day also constitutes consciousness of guilt evidence—flight from the scene for purposes other than safery is perhaps the most classic form of consciousness of guilt. As the Bible notes in Proverbs 28:1, “The wicked flee when no man pursueth: but the righteous are bold as a lion.”

There was also additional evidence that the Defendant and Victim had once been good friends, but had recently had a falling out, suggesting a motive for the shooting other than self-defense. Also, the Defendant conceded that drugs he had taken that day had made him paranoid, undermining the element of reasonableness necessary for lawful self-defense, and again providing a motive for the shooting other than self-defense.

The Defendant also told police during his interview a rather incredible (meaning, literally, not credible) almost child-like version of events. He claimed that the fatal shot was actually fired by a “bald man” standing outside the hotel room, after the “bald man” knocked on the door and the Victim peered out the window to look at him. Again, the angle of the gunshot injury (back of the head to front) is inconsistent with the Victim facing the direction of the shot, and the same surveillance cameras that captured the Defendant’s flight from the hotel room failed to show any “bald man.”

So, to repeat, we have no direct witness or video evidence of the actual shooting, and we have no direct evidence of any kind that the shooting was not-self-defense.

What we do have is a bunch of forensic, consciousness of guilt, and forensic evidence inconsistent with self-defense.

That weight of forensic, consciousness of guilt, and forensic evidence, the GA Supreme Court concludes, was more than sufficient to allow a reasonable jury to conclude that the prosecution had disproved the Defendant’s claim of self-defense beyond a reasonable doubt.

OUTCOME:

Murder conviction and life-sentence affirmed.

COMMENTS:

Another issue on appeal in this case was that the Defendant tried to get the recording of his interview with police excluded as evidence, on the grounds that he had unambiguously asserted his 5th Amendment right to remain silent when he was initially Mirandized by police.

And it is true that the Defendant did assert his right to remain silent.

So how can the interview recording be admissible?

Because just like you can assert unambiguously assert your right to remain silent, you can also after doing so unambiguously waive your right to remain silent by initiating conversation with police about the matter. If you start talking about the case, they can start questioning you about the case.

Lesson for all of us, is don’t merely unambiguously assert your rights to silence and counsel, make sure you’re not then “tricked” into waiving that assertion. Because if you waive that assertion, then once again anything and everything you say may be used against you in court.

Once you’ve asserted your right to silence and right to counsel, SHUT UP until your lawyer gets there.

As an aside, another claimed issue in this case is the for a brief period of time during jury selection the actual District Attorney out of whose office this prosecution was being made was a prospective member of the jury, and she was questioned along with the other members of the jury pool. So, even a DA can get called for jury duty. The DA was naturally dismissed from consideration as an actual juror on the case, for obvious reasons, but the Defendant on appeal argued that her presence even briefly fatally biased the other jurors against him. The GA Supreme Court found no merit to this argument.

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Remember:

And that is it for me today. As always, folks, as I sign off, I urge all of you to keep in mind:

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program

2 thoughts on “Cases of the Week: May 12, 2020”

  1. StercusEnFuego

    If the victim was shot above and behind the right ear, why isn’t that direct evidence contrary to self-defense? How could a shot from behind ever be self defense? If it’s not direct evidence contrary to self-defense, what WOULD constitute direct evidence if not someone facing away from you?

    1. Attorney Andrew Branca

      Direct evidence is testimony from a witness based on their personal knowledge. “I saw Joe shoot Tom through the back of the head.”

      The medical examiner report of the shot through the head is indirect evidence in the form of conclusions drawn from the observed circumstances–thus, circumstantial evidence. “Upon medical examination we concluded based on our training and experience that the skull was penetrated by a projectile consistent with a bullet, entering the rear of the skull and exiting the front.”

      The medical examiner did not observe the actual shooting and so has no personal knowledge of that actual event, and would not be in a position to provide direct testimony on that event. They can, however, testify to the circumstantial evidence known to them.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

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