I started a new website called “Use of Force Source” at UseofForceSource.com. The purpose is to establish an online resource to discuss and compile Fourth Circuit federal case law, and U.S. Supreme Court case law on the use of physical force – both police situations and self defense situations. I have already listed a bunch of black letter law on excessive force in the Fourth Circuit (so Virginia, West Virginia, Maryland, North Carolina and South Carolina). It will be a blog format, and will be specific to use of force cases. My intention is to post about specific cases, going over the facts, as well as the law. I also like to listen to the oral argument audio since it gives you much more insight into the case and the reasoning behind the Court’s decisions.
I already posted my first post today, discussing the November of 2013 Fourth Circuit opinion from Ayala v. Wolfe, which was a police shooting case.
Apparently a West Virginia lawyer was charged with being an accessory after-the-fact in relation to a New Year’s Eve shooting in Charleston, which is a felony. This was reported by WCHS, as well as the Charleston Gazette. Allegedly, after his friend shot a guy after an argument over ordering a pizza, the lawyer took the guy’s cell phone and instructed him to run. And then he was allegedly uncooperative with police when they asked him the identity of the shooter.
It was reported that all of this can be viewed on surveillance footage:
“Conrad is in trouble, because police said he can clearly be seen on surveillance video taking Underwood’s cell phone, which is considered evidence, from the scene and telling the suspect to run.”
So my initial thought is, how can you view what someone is saying on surveillance footage? You can’t. We pretty much know the footage does not contain audio – since that in itself would constitute felony illegal wiretapping in West Virginia, since it would be capturing conversations for which no party has consented.
The police are the first to complain about surveillance footage when they are accused of misconduct, noting that you can’t tell everything from the video. Well you certainly cannot tell what someone is saying to another. How does a video prove that the lawyer was instructing the shooter to flee? And if you can view the cell phone being handed to the lawyer, how can you tell that the lawyer asked for it. And if a cell phone is handed to you in such a situation, does that make you a felon? What if you are a lawyer potentially representing the individual. Can you preserve evidence yourself? Are you compelled to turn over your own evidence to police at their demand? The West Virginia Rules of Criminal Procedure don’t provide for that. In fact, a criminal defendant is not compelled to provide discovery to the prosecution until and unless he or she requests discovery from the State.
As with any of the decaying “cities” in this country where you have arrogant and hypocritical leadership, the City of Charleston was quick to jump into attention-whore mode and to engage in their first attempts at poisoning the jury pool:
“It’s really surprising that someone in a position of authority, and all that he is responsible for, to participate in this criminal conduct,” Lt. Steve Cooper, with Charleston police said.
. . .
Charleston Mayor Danny Jones said he plans to file an ethics complaint with the state bar, against Conrad.
What ever happened to “innocent until proven guilty”? Is it ethical for a police officer, or mayor, to go onto TV and tell the public that an individual who has been charged, and who is presumed innocent, has committed criminal conduct? Or that the individual has abused a position of authority? Or that the person is unethical?
I’m not passing judgment on the lawyer’s actions one way or the other since I don’t know all of the facts. After all, isn’t that what police say when one of their own are accused of misconduct? Well, it’s under investigation and we don’t know all of the facts. So what if he did take the guy’s cell phone and told him to run? What negative consequences did that have? Who is a victim to the lawyer’s alleged crime? None and nobody.
There was an article yesterday in the Charleston Gazette about a gun owner in Logan, WV who stopped a home invasion in progress at his neighbor’s home.
He shot one of the burglars, and held the other at gunpoint until police arrived. This brings up a common topic of interest to people – especially in West Virginia, which has one of the largest percentages of gun owners per capita (we are no. 5 I believe).
When can you legally shoot someone in a home invasion scenario?
In the end, it comes down to whether or not you reasonably believe that you, or someone else (anyone else – it doesn’t have to be a family member) is in imminent danger of death or serious bodily harm. People tend to get obsessed with the “castle doctrine.” Just understand that to mean, that if you are in your home, you have no legal obligation to run out the back door, if given the opportunity. It all comes down to whether you believe you, or someone else, is going to be killed or seriously hurt if you don’t take action.
There is no guarantee that, even if you do believe you’re about to be killed, and you fire your weapon, that the shooting will be deemed justified. Your fear must have been reasonable – based on something that your peers would likely also consider as significant enough to cause them fear as well.
Everyone should think about these types of things ahead of time. You should draw a mental line in the sand regarding when you shoot, and when you do not shoot. What is enough? What if someone in a ski mask is lurking outside your house? What if someone in a ski mask is outside your house with a gun in their hand? What if someone is burglarizing your vehicle in your driveway? What if someone is burglarizing your neighbor’s home? Or car?
There is not necessarily a right answer for these types of scenarios. But you should never pull the trigger unless you really do fear for a life. It’s not that they don’t deserve a dirt nap. If it were up to me, all thieves entering your property at night should be executed. But unfortunately it’s not.
Many people in West Virginia do believe that if someone is breaking into their car at night, that they can run outside and shoot them. Unfortunately, here we are not allowed to use deadly force in order to protect property. For this reason, electric companies are not supposed to keep lines active for the sole purpose of deterring trespassers. Now if the car burglar approaches you, or if he has a weapon and has the imminent ability to use it against you – that is different.
1. It’s always going to be more difficult to justify a shooting where the person shot was “unarmed”. I knife, gun, or even a stick could count as a weapon. It is never a good idea to provide your own weapon after the shooting. The facts are what they are. Never try to change them.
2. It’s always going to be more difficult to justify a shooting where the person shot was shot in the back. This would indicate that the person was walking, or running, away from you. That causes a problem because at that point it’s hard to argue that your fear was reasonable when the threat was leaving. It’s also hard to argue that the threat was imminent. But, if the person shot was in your house, it’s probably going to be a good shoot, because the threat was still in your home. Generally when we shoot someone, our natural tendency is to keep shooting. So there have been cases where the first shot was in the front of the person’s body, and several more shots went into the guy’s back as he turned to run away. Good shoot, but bullets in the back are always going to make things more difficult.
3. In your home, it’s game on. Like I said, draw a line in the sand. If someone maliciously invades your home, you generally can eliminate the threat with extreme prejudice. But it still has to be reasonable. You wouldn’t want to shoot a drunk neighbor who wandered in the wrong house – or a family member sneaking back in from a night of partying. For this reason, always have a good home defense light. You have to know your target – and what’s behind it.
It’s outside the home, where most of the grey areas live. So be very careful venturing outside your castle with a gun in the dark of night. Know where your line in the sand is.
As for the shooting in the article, the 800 pound gorilla is the fact that was left out of the story. Did the shooter believe that the neighbors were in the home at the time he saw the attempted home invasion? If so, good shoot. If not, he may have a more difficult time due to the fact that we are not allowed to use deadly force in order to protect (only) property.
4. Lastly, all gun owners who anticipate ever having to use their firearms in self defense should get some formal training, such as in a defensive handgun class. A basic concealed weapons class does not qualify as training. This is me at a handgun class a couple of weeks ago. It’s a lot of fun, and it’s part of our obligation as citizens under the 2nd Amendment.
The Fourth Circuit issued a decision bolstering our 2nd Amendment rights. The case is styled USA v. Nathaniel Black, out of the Western District of North Carolina. Essentially, a guy who was a convicted felon was open carrying a firearm. He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm. But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?
The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity. The importance of this decision is that it protects our 2nd Amendment rights. If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc. The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).
In a 4-1 decision, authored by Justice Menis Ketchum – a Justice with criminal defense experience – which was filed yesterday, the West Virginia Supreme Court of Appeals actually acquitted a woman who had been convicted of murder in Cabell County, West Virginia.
A jury convicted Tanya D. Harden of first-degree murder in 2007, ignoring her argument that she acted in self-defense. She said Danuel Harden Jr., her husband of 11 years, told her that “nobody was going to walk out of the house that night,” including their two children. She apparently shot her husband with a shotgun while he was sleeping on the couch.
This was basically a “battered woman syndrome” self-defense case.
The justices’ decision acquitted Harden of murder charges, and ordered her released from prison immediately. She had been serving a life sentence with a recommendation of mercy.
Syllabus Point 3 of the Opinion held that:
Where a defendant has asserted a plea of self-defense, evidence showing
that the decedent had previously abused or threatened the life of the defendant is relevant
evidence of the defendant’s state of mind at the time deadly force was used. In determining
whether the circumstances formed a reasonable basis for the defendant to believe that he or
she was at imminent risk of serious bodily injury or death at the hands of the decedent, the
inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is
to say that the defendant actually believed, based upon all the circumstances perceived by
him or her at the time deadly force was used, that such force was necessary to prevent death
or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the defendant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732
(1927), is expressly overruled.
Where it is determined that the defendant’s actions were not reasonably
made in self-defense, evidence that the decedent had abused or threatened the life of the
defendant is nonetheless relevant and may negate or tend to negate a necessary element of
the offense(s) charged, such as malice or intent.
An occupant who is, without provocation, attacked in his or her home,
dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be
upon the premises, may invoke the law of self-defense and in such circumstances use deadly
force, without retreating, where the occupant reasonably believes, and does believe, that he
or she is at imminent risk of death or serious bodily injury. In determining whether the
circumstances formed a reasonable basis for the occupant to believe that he or she was at
imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry
is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that
the occupant actually believed, based upon all the circumstances perceived by him or her at
the time deadly force was used, that such force was necessary to prevent death or serious
bodily injury. Second, the occupant’s belief must be objectively reasonable when
considering all of the circumstances surrounding the occupant’s use of deadly force, which
is to say that another person, similarly situated, could have reasonably formed the same
belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110
(1909), is expressly overruled.
You know, sometimes prosecutors should come to the conclusion that the guy deserved it. They should have given this woman a break. She was protecting her children. The police wouldn’t have stopped him from killing her, or the children. That’s why we have guns for self defense. It’s each of ours individuals responsibility to protect ourselves and our children. The prosecutors were trying to victimize these children by turning them into orphans.
From Tanya Harden’s arrest to her sentencing, the State has never disputed an essential fact – that the decedent threatened to kill his wife and children and used his fists and shotgun to brutally beat his wife just before he died. The injuries suffered by Tanya Harden, including facial fractures, were preserved on photographs taken the day of her arrest and made part of the record in this case, and were attested to by the State’s own witnesses.
On Friday, the US Supreme Court settled an argument that had been raging for decades: does the 2nd amendment apply to individuals, or does it apply to “well regulated militia’s”? Thankfully, the Supreme Court got it right this time. West Virginians know this better than anyone else: you can’t depend on the police to wake up, take a shower, and drive thirty minutes to your house to protect you from danger. You have to be able to protect yourself and your family.
What still makes me sick, is that some guy (or gal) convicted of some stupid non-violent felony that has nothing to do with guns, will never be able to own a gun. What about his children? Should they be at the mercy of some armed intruder who is aware of the fact that they cannot protect themselves? Should they be required to die because some bleeding-heart know-it-all is anti-gun?
For a great analysis of this recent Supreme Court decision, take a look at this post from the South Carolina Criminal Defense Blog, by Bobby Frederick.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald today:
Its no big surprise that after just under two hours of deliberations, the jury of seven women and five men found Gary D. Martin, 57, of Stringtown Road, guilty of two counts of first-degree murder and one count of second-degree murder.
Obviously the jury didn’t buy the self defense argument. However, they did find Martin guilty of second-degree murder for killing the victim that had the gun in the holster. Thus, the jury was not convinced beyond a reasonable doubt that Martin killed that particular victim with premeditation. They were convinced with respect to the other two victims however.
This result is no surprise given the evidence. However, I was surprised to read what Fayette County Prsoecutor Carl Harris “thundered” in his closing argument. The Register-Herald quoted him saying as follows:
“Only two people are alive at the end of that day because the other three are dead,” Harris thundered in closing arguments. “This is a weapon for killing,” he added, holding up the AK-47. “This is not a weapon for target practice. This is a military weapon. You don’t pull out a pistol when you’re facing a weapon like this. Self-defense (as a legal defense) doesn’t work when you shoot someone in the back.”
According to Carl Harris, an AK-47 is only a “weapon for killing” and cannot be used for target practice as it is purely a “military weapon.” Carl Harris should be ashamed of himself. Law-abiding citizens across the State of West Virginia own so-called “assault weapons” such as AK-47s and AR-15s, which they do use for target practice, self defense, or just to collect. It is just a semi-automatic rifle, similar to many others that West Virginians and other Americans own and use across the country every single day. Attention Fayette County residents: hide your guns because Carl Harris is probably looking to prosecute you for harboring “weapons for killing.” Don’t try to get some target practice in, you may end up in prison. Carl Harris needs to realize that it is perfectly legal to own that particular gun, as well as many others, and he needs to keep his anti-gun feelings to himself, and out of the courtroom.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald today:
Fayette County prosecutors presented 16 witnesses Monday and explained that they plan to call just one more today in the triple-murder trial of a Hico area man accused of gunning down three young men with an AK-47 semi-automatic rifle last Memorial Day on the road in front of his home.
Gary D. Martin, 57, of Stringtown Road, is charged with three counts of first-degree murder in the May 28 shooting deaths of Dustin Tyler Hughes, 22, of Hico, Christopher Lee Legg, 23, of Hico, and Carl Blaine Cox Jr., 24, of Edmond.
The defense is claiming that since a Glock pistol in a holster was found one one of the victims, that the shootings were justifiable homicide – or self defense. However, there are some problems with that defense; namely, that the pistol was found shot and damaged with the holster. The article doesn’t say whether the gun was actually still in the holster or not. If it was, then self defense would be a tough row to hoe. If the gun was not in the holster, then self defense would be an easier case. Reportedly, there were seven rounds in the magazine, which holds nine. So it is possible that the victim shot two rounds. However, none were found at the scene (but that still doesn’t mean they weren’t there). I wonder if they tested the Glock for gunshot residue – or the victim’s hands for gunshot residue. That could prove almost conclusively whether or not he fired a gun. I would hit hard on that if I were one of the defense attorneys. You will see a pattern of sloppy investigative work and repeated failure by the State to do all of the forensic testing or evidence collection that could have been done. Your theory almost has to be that it was self defense, and the State cannot prove beyond a reasonable doubt that it was not self defense, because they failed to do all of the testing that could have proven it.
Of course, all of this is assuming you have a fair and impartial jury. See my earlier posts regarding motions for change of venue. This would have been a good case for one.
Another problem with the defense is that there were three victims shot to death. Even if one of the victims had threatened or shot at the defendant, it would not have been justifiable to shoot all three to death. Yet another problem is the statements made to the passing motorists and EMT workers afterwards.
You can read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald today, the full article for which can be found here.
West Virginia Governor Joe Manchin signed the “Castle Doctrine” bill, which provides that residents may use deadly force to repel an intruder or avert a felony crime in the making on one’s property, and it allows such actions to be used as a defense in potential civil litigation.
The name “Castle Doctrine” and the basic theory is the product of a medieval English custom that held a man’s house is his castle, and the wind, but not the king, may enter.
Manchin stated that “Every person’s home is a castle, and every person’s family member is a royal family member.” Senate Majority Whip Billy Wayne Bailey, D-Wyoming, said he considered the measure long overdue.
“It’s part of our culture,” he said. “We’re just codifying in law what is the culture of West Virginia, that a person has a right to defend family and property, even with deadly force. That’s part of culture, without being sued and dragged off to prison. We did quite well on this.”
Manchin agreed, saying, “I think we’ve always felt that. We just now made it legal.”
– John H. Bryan, West Virginia Attorney.
From today’s Beckley Register-Herald:
Note: Apparently the judge reversed his prior ruling denying the defense the ability to call an expert witness to testify about proper undercover procedure. The reason for the reversal was that the State called their own witness solely to testify as to the “ins and outs of undercover investigations.” Thus, the defense should be permitted to have their own witness testify as to the impropriety of the supposed undercover operation on the night of the killing. This could form the basis for a self-defense claim. Regardless, if the judge is going to allow the prosecution to present pictures of the defendant posing with guns and old targets painted as police officers, which are extremely prejudicial, he should allow the defense to fully develop his self defense theory. This requires looking at the situation through the eyes of the defendant – which requires testimony regarding the victim’s actions that night.
Another thing which stuck out to me was the testimony regarding having girlfriends or wives in an undercover vehicle while performing a drug buy. Both Trooper Van Meter and their expert, Trooper Davis, testified that “in case of an emergency, they could not swear they would not take their wives along.” What a load of garbage. They were obviously coached by the prosecution to say that. Since when is buying drugs an emergency? Obviously anything can happen in an emergency – what is important here is policy and procedure. This is what is scary about our criminal justice system in West Virginia – even WV State Police officers are willing to slant their testimony and lie on the stand in order to help the prosecution obtain a conviction. Maybe no one cares in this case. But, as I always say, you will care when your brother or son is wrongly accused of a crime and the State puts the conviction machine to work against them. – John H. Bryan, West Virginia Criminal Defense Attorney.
State Police Cpl. D.C. Eldridge shows the jury in the Thomas Leftwich murder trial a photo, recovered from Leftwich’s computer, of the defendant posing with weapons. Eldridge testified in Raleigh County Circuit Court that the computer contained digital images of narcotics, money, various weapons on display and the defendant posing with the weapons.
Rick Barbero / Register-Herald Photographer
Defense to begin in Leftwich trial
Following the testimony of three State Police officers, the defendant’s brother and a taped recording of the defendant himself, the state rested its case Wednesday against 25-year-old Thomas Leftwich, charged with first-degree murder, conspiracy and felony use of a firearm in the Aug. 29, 2006, shooting death of Beckley Police Detective Cpl. Chuck Smith.
“I heard him screaming, so I figured I hit him in the leg,” Leftwich said on the tape, adding he was “trying to aim low.”
“I didn’t want to kill the man or nothing.”
The defense will begin presenting its case when the trial resumes this morning. Leftwich is expected to testify at some point in the defense’s case.
Leftwich, in a statement recorded just hours after Smith’s death, was heard explaining what happened in the minutes before and after the fatal shooting of the man he said he did not know was a police officer.
After receiving a phone call shortly after 4 a.m., Leftwich agreed to meet a man he referred to as “Mike,” now known to be Michael Martin, as well as a second person who, in Martin’s words, wanted to buy drugs. Martin was convicted of murder in December and sentenced to life in prison.
Leftwich, who lived in a house atop a hill at the corner of Willow Lane and South Fayette Street, said Martin called and said he was outside waiting. When Leftwich reached the steps leading from his yard to the street below, he said he saw Martin and a “white dude.”
After handing the drugs over, Leftwich said, the person told him “today was my bad day.”
Leftwich told police he feared he was about to be robbed, and when he saw the man reach for what he thought to be a gun, he “pulled out my gun as quick as I could and started firing.”
After firing “three, possibly four” shots, Leftwich said he ran, placing the gun underneath a porch and hiding in his basement.
He told police he knew the person he shot at had been hit.
“He kind of turned around screaming …, ” Leftwich said. “I knew from the screaming that he was hit.”
Leftwich said he decided to confess when he saw his family, including a younger brother, being led from the house in handcuffs after police obtained a search warrant based on information from an eyewitness, Beckley Police Cpl. Will Reynolds.
Earlier in the trial, both Reynolds and Smith’s then-girlfriend, Jasminda (Gonzalez) Curen, testified they saw Smith show Leftwich his badge just before he was shot.
In his statement, however, Leftwich said something different.
“I didn’t see no badges,” he said, adding later, “He could have been reaching for a badge or something, but he didn’t say he was a policeman.”
In his statement, Leftwich said he picked up the loaded Smith & Wesson .357 revolver at the last second because of a bad feeling or “gut instinct.”
Kenneth Leftwich testified he could not remember if he ever told police his brother was a crack cocaine dealer, but said he “told the troopers he might have sold a little bit of marijuana.”
When asked by chief deputy prosecutor Kristen Keller if his brother was a crack dealer, Kenneth Leftwich responded, “I’m not sure.”
Kenneth Leftwich testified he was awakened by multiple gunshots just after 4 a.m. on Aug., 29, 2006, adding there were 15 to 20 shots fired and that he later saw 15 to 20 shell casings in the road.
After hearing the gunshots, Kenneth Leftwich said, he called his brother’s cell phone to “make sure he was OK.”
Keller asked him about additional phone calls and Leftwich said he did not know his brother had shot and killed Smith.
State Police Capt. Scott Van Meter testified that based on phone records there were seven calls between the brothers the morning of Smith’s death.
When shown by Keller a painted picture of a police officer riddled with bullet holes, Kenneth Leftwich admitted he and his brother had used it for target practice, writing their initials, either “T.L.” or “K.L.,” beside each hole. He told his brother’s attorney, Mark Hobbs, the “paint by color” picture had been completed by another brother several years earlier and was the only target he and Thomas ever used.
Although the target depicts a police officer and was marked with a scoring system, awarding different points for different hits, Kenneth Leftwich said he and his brother never discussed or planned to shoot a police officer.
Van Meter told Hobbs the target “looks to me like the rehearsal to doing it (killing an officer),” adding he believed it demonstrated there was an anger toward police.
When asked by Hobbs if he believed that anger was enough to kill an officer, Van Meter responded, “Could be.”
State Police Cpl. D.C. Eldridge testified about photographs recovered from a computer seized from the Leftwich residence the morning Smith was killed.
Eldridge said he recovered 231 photo files, many of which featured narcotics, weapons or money.
In some of those pictures, which were shown to the jury, Leftwich is shown posing with various weapons, including the gun used to shoot Smith.
Hobbs argued the importance of the picture, asking Eldridge if the weapons shown in the photos could be purchased by the general public at a sporting goods store.
“They can be,” Eldridge replied, adding the purchases would be contingent on the buyer’s background and the intended use for the weapon.
State Police Cpl. Jason Davis, who has worked undercover for seven years, testified about the ins and outs of undercover investigations.
When questioned by Hobbs about using his police car as a personal vehicle, as Smith is said to have done, Davis testified his work car was his primary car, and, as an undercover officer, it would look suspicious if he was seen by drug contacts in multiple cars.
Responding to Hobbs’ references and questions regarding Smith’s girlfriend’s presence at the time of the shooting, both Davis and Van Meter testified they, in the case of an emergency, could not swear they would not take their wives along.
Because of Davis’ testimony, Judge H.L. Kirkpatrick reversed a pre-trial ruling, advising Hobbs he would be permitted to produce his own witness to testify about undercover protocol.
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