VA Judge Doesn't Buy "Self Defense" Claim

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Watch out for your double-taps: "Further, Turner was not justified in firing a second shot at Ford, the judge said." There was no mention whether the shooter (Turner) had a CCW permit.

Link to The Daily Progress

Self-defense claim shot down
By Liesel Nowak
Daily Progress staff writer
Thursday, October 28, 2004

A judge Wednesday rejected an Albemarle County man’s claim that he had acted in self-defense when he shot an aggressive stranger this spring.

After a one-day trial in Charlottesville Circuit Court, Dominick J. Turner was convicted on felony charges of malicious wounding and the use of a firearm for shooting Julian Lamont “Monty†Ford at an apartment complex on Swanson Drive on May 1.

Turner said that after a fight erupted outside his friend’s door at the apartment complex he wanted to leave but was held up by a drunk and threatening Ford. Turner said Ford shouted profanities and came toward him while reaching into his pocket for what the defendant believed was a gun.

“He had one thing on his mind and that was to make a direct path to his car and out of Dodge,†defense lawyer Bonnie Lepold said in closing arguments.

Instead of leaving, however, Turner testified that he pulled out a pistol and shot Ford.

“I believe he had a gun in his pocket,†Turner said. “Monty was coming straight toward me.â€

Ford suffered two gunshot wounds to the torso, leaving scars and requiring the use of a colostomy bag. Witnesses testified that Ford was extremely drunk and was involved in two fights at the apartment complex the night of the shooting.

Ford testified that he does not remember the shooting. Prosecutors said he had a blood alcohol content of 0.24 the night he was shot, three times the legal limit for driving.

“I really don’t remember, you know,†Ford said when asked about details of the shooting.

Neither Turner nor Ford knew each other, both testified. Turner turned himself in to police in the hours following the shooting.

Prosecutors argued that but for the care Ford received at the University of Virginia Medical Center, they would be handling a homicide case.

“There is no legal justification or excuse for the shooting,†said Assistant Commonwealth’s Attorney Joe Platania.

Judge Paul M. Peatross Jr. considered conflicting eyewitness testimony to the shooting and ultimately decided that even though Turner did not instigate the argument that led to the shooting, he failed to prove that he had a reasonable fear of danger.

Further, Turner was not justified in firing a second shot at Ford, the judge said.

Turner, 23, a dietary aide at a nursing home, testified that he started carrying the weapon with regularity in the weeks before the shooting after he was threatened by two men with a shotgun and found intimidating notes on his car.

Contact Liesel Nowak at (434) 978-7274 or [email protected].
 
wow.

I'm no expert on VA. law, but shouldn't this case have been decided by a jury rather than a single judge (like the article implies).

I know we are missing all the details of the trial, but I would have thought that it would be prudent to enter as part of the defense that the police academy (and every other handgun school) teach 2 to the COM as standard practice for defensive shooting to stop the threat (to compensate for the relative weakness of all handgun rounds). In other words if you are justified in shooting at all, you are justified in shooting 2 COM and then continuing (if necessary) until the threat stops. Too bad the article does not mention the distance from the shooter to the assailant.

The judges opinion is really confusing. First he says that the shooter failed to prove resonable fear of danger. So he seems to saying the first shot was not justified. (Shouldn't it be the state's burden to prove the shooter didn't have resonable fear of danger???)

Then he goes on to further say that the shooter wasn't justified in firing a 2nd shot?? So does that mean the first shot was actually justified, cause if the first shot was not justified then why would it be worth mentioning the 2nd shot at all... it would also be not-justified by default.

The only situation I can see where a 2nd shot would not be justified (assuming the 1st one is) is if there was a significant amount of time between shot#1 and shot#2 and the assailant was on the ground (i.e. no longer a threat) when shot#2 was fired.

Reading between the lines, it also sounds like there are alot of gray areas involved here (especially the bit about the shooter turning himself into police later makes it sound like the shooter fled the scene afterwards), so maybe this was a compromise verdict?

Without knowing all the details, its hard to say if this judge has just set a precedent that double-taps are excessive force.

On the information presented here, it sounded like a justified shooting. The assailant had the intent and opportunity (assuming the distance was close) to do bodily harm. The only thing that is questionable is whether or not a drunk with .24 BAC has the ability to do bodily harm (which I would say most likely). Unfortunately for the shooter, it sounds like there was alot of gray area... most likely surrounding his ability to retreat, his actions immediately after the shooting, and potentially the legality of his firearms (CCW). It also sounds like the shooter got unlucky and ran into an anti-gun prosecuter & judge along with not having a defensive-shooting-savvy defense attornery.


just my thoughts,
drc
 
From the C-Ville Weekly online archive:

"Saturday, May 1

Early morning shooting

A 26-year-old man was shot twice in the chest early this morning. The shooting occurred near the man’s home, on Swanson Drive, one block west of the Hydraulic Road-U.S. 29 intersection. Hours later, police arrested the alleged shooter, Dominick J. Turner. According to The Daily Progress, Turner, whose nickname is “Freaky,†has been charged with malicious wounding and the use of a firearm in the commission of a felony. The victim was in critical condition."


I'd bet Freaky's public defender knows some things the newspaper doesn't. Want me to call my aunt and uncle and see if they know the young man's family? ;)

John
 
Yep, I agree, a lot of gray areas. It also sounds like nobody there, offense, defense or the judge knew anything about guns or how to use them.

This should have been a jury trial because the question to be answered in a justifiable shooting is: "Would a reasonable person believe his life was in danger?" and everyone should know that judges have been lawyers way too long to have any "reasonableness" left in them :D

Seriously, this should have been in front of a jury who may have been sympathetic to his fear of being attacked. His lawyer should have known it.

EDIT
OK, I just read the post about this guys nickname being "Freaky" Maybe there is a reason for not putting this guy in front of a jury!:D
 
This is simply impossible. Everyone at the gun shoppe told all I have to do is say "self-defense" and these magic words absolve of harming a fellow human being.

I have no doubt that this story is a fake. Most certainly created by El Tejon to bolster his imaginary, but beloved, "Problem #2" which everyone at the gun shoppe tells me does not exist.
 
Witnesses testified that Ford was extremely drunk and was involved in two fights at the apartment complex the night of the shooting.
Click to expand...

No sympathy, except for the guy who figured a rampaging drunk was a rampaging drunk, and took appropriate action, only to find himself in court over it.
 
Hrm.

The story says "second shot." It most certainly does not say "double-tap."

Methinks there might have been some time elapsed between shots.
 
Methinks this be a urban crime on crime kinda thing.... Freaky? I've got images runnin' wild. I doubt Freaky had a CCW, and if I'm right about the urban kind of crime on crime, the judge deals with a bunch of these things all the time.

"I'm gonna cut you!"

Go Freaky.
 
You also can't count on the media to get the story straight anyway.
You stick your hand in your pocket so it is assumed you are reaching for a gun. I guess he thinks that's plausible because he carries a gun in his pocket. He could have left, but changed his mind and pulled his gun to shoot the other man.
Sounds like too much is missing in this story. I noticed nothing was said about if Ford had a gun or not. Even though this was an apartment complex there was no mention of any other witnesses. There's just the testimony of the shooter and the drunk who doesn't remember anything.
 
Judge Paul M. Peatross Jr. considered conflicting eyewitness testimony to the shooting and ultimately decided that even though Turner did not instigate the argument that led to the shooting, he failed to prove that he had a reasonable fear of danger.
Click to expand...

Since when is the burden of proof on the defendant to 'prove he had' reasonable fear of danger/death?

I thought the job of the prosecution was to prove that he did NOT have reasonable fear of danger/death and thus actually commited a crime?!?

No way to tell if the shooting is clean, but if Turner is telling the truth, then he should walk. Period.
 
Whether a trial is in front of a judge or jury is the defendent's choice. I'll defer to our resident barristers, but I understand that lawyers like to argue law in front of a judge, and emotion in front of a jury.

If fear is being used as a defense the burden is on the defense to prove it.

I dont know which police academy is being referenced in an earlier post but they shoudnt be teaching "2 COM." They should be teaching to continue firing until the lethal threat is stopped, and then stop shooting. That may be in 20 rounds, 2, or 1. That is what my testimony as an instructor would be.

Some people need to be shot. That doesnt automatically mean the shooter is a good guy.
 
"he failed to prove that he had a reasonable fear of danger"

The claim of self defense is an 'affirmative defense'. It requires that the shooter prove that there was no other way to avoid shooting in order to save himself from death or serious bodily injury from the illegal acts of others.

The prosecutor only has to show that A shot B without lawful justification, which appears to be the case here. No one said that A didn't shoot B.

Trials can be held before a judge without a jury if both sides agree to it.
 
Flyboy:
When was the last time the media used the term "double tap"?
I've never seen it used in mainstream publications, only in gun mags.

Kharn
 
Time for one of the resident lawyers to add two cents...

The standard practice is that you put any case in front of a jury instead of a judge UNLESS:

1. The defendnat has a problem (being known as "Freaky" may be a problem) that would rear its head in front of a jury.
2. Emotions weigh against you, but the law weighs in your favor.
3. The judge has a reputation for favoring your position in similar cases.

And, yes, the decision is the defendant's, and actually requires a written waiver of a jury trial to be a part of the record (at least here in Ohio).

AS for the burden of proof, self-defense is an affirmative defense, meaning that you are essentially admitting to the criminal act, but arguing that under the law you were either excused or justified in committing the act. Why? As I tell people all the time, don't ask me, I'm just the lawyer, dealing with the laws the legislature and judges have seen fit to give us.

I must agree when everyone says that there is clearly more to the story than what we see here in the article. I cannot tell from the article whether this was a situation where the defense essentially stipulated to the shooting, and the trial focused on the self-defense issue, or what the legal circumstances were. Personally, I can't see how a full blown shooting case was tried in one day. There are so many issues, forensic evidence, etc., that there must have been some stipulations as to the facts.

There are so many questions I have, such as the time lapse, if any, between shots, that I won't pass judgement on the case with what I know.

And, keep in mind, not all prosecutor's are rabid, anti-gun, poilitcally motivated, media sharks. Some of us are good guys, trying to make a living (less than we would in private practice) and do some good in the world. Plus, it gives me a badge so I can carry. :D
 
Since when is the burden of proof on the defendant to 'prove he had' reasonable fear of danger/death?
Click to expand...
You must have a sense of a clear and present danger before you go capping somebody. Come on!

(Unless you're here in the South, where "He needed killin' " is still a valid defense. :cool: )
 
"I'm no expert on VA. law, but shouldn't this case have been decided by a jury rather than a single judge (like the article implies)."
Click to expand...

The defendant apparently waived his right to a jury trial; I agree that seems foolish, but there is a LOT here we do not know.
 
Let appeals bear out...

Likely, this will be overturned on appeal. That is because the judge apparently didn't do his homework:

http://www.courts.state.va.us/opinions/opnscvtx/1032402.txt

Further, the Virginia Supreme court specifically disallows substituting judgment for what a reasonable person would have felt was a threat at the time & circumstance. It cannot only be fear, there must be an overt act, with imminent threat of bodily harm or death. According to "implied possession" above, he is entitled to the claim of justifiable homicide.

Of course, not only did the judge not do his homework, neither did the counsel of the defendant.

for the poster who asked about proving by the defendant:

Virginia has no "make my day" law, and honors the English Common law when not overriden by statutory, or constitutional law. Under the common law, and long standing precedent of the Virginia courts there are 2 plausible defenses to homicide or a criminal death. Both of them are "affirmative defenses", they are "justifiable homicide" and "excusable homicide". An affirmative defense is one in which the defendant admits to the 'crime' and must prove it justified or excusabe.

Justified: The situation happend upon you through no fault of your own, and you could not extricate yourself from it.

Excusable: You had a minor, or maybe not so minor part in the encounter, but withdrew, and expressed your desire for peace. That expression was rebuffed, and you were left with no other viable alternative.

This isn't new, it's been around since before the first colony was settled here.
 
Lordy, I wouldn't even trust an Alaska judge with a self defense case. Judges aren't like normal human beings. They put so many people away it's no big deal anymore. They see a dead or seriously wounded person, and their instinct is to impose time on the shooter no matter what. Never trust a judge to rule on facts.
 
Going only by the article, I would have to say that a jury is needed only to rule out reasonable doubt, but given the fact that the defendant did not VERIFY that Mr. Ford was indeed grabbing a gun/weapon, he should not have fired.

This may get overturned on appeal, but I think the judge may have been right to say that the threat wasn't clearly defined. Since the threat wasn't clearly defined, neither the FIRST nor SECOND shot would be justified.

Just my opinion. Sorry to play Devil's Advocate.

-Matt
 
Tell you what. Get a friend, some goggles, and a couple of Airsoft pistols. Have your friend holding his in a loose front pocket in low lighting. Now play fair. Don't begin to draw your concealed weapon until you have VERIFIED that he is, in fact, holding a weapon. Do not draw because he is reaching into his pocket. Do not draw because he has a dark object in his hand coming out of the pocket. No, do not initiate your draw until you have positively identified a pistol.

If you try under these restrictions you're going to have welts where a true assailant could have put holes.

Even if you surreptiously draw your pistol and hold it out of sight besides your thigh...wait until you definitely recognize a pistol in low light conditions and see what happens. Unless you are way above the norm in reaction time or your friend is way below the norm.

In my opinion, Freaky's biggest problem was not immediately reporting this to the police with his version of events. Probably in the running for his biggest problem was the history which gained him his nickname. Doesn't sound as if he had effective counsel either.

I've had two episodes where the man was holding his hand in his coat pocket and saying he had a gun and was going to shoot me. I couldn't tell if that bulge was an index finger or a gun barrel. In the first instance the man was so drunk he could barely stand and I had cover with a truck engine between him and me. He fell down and I boogied. In the second episode, I knew the usual habits of the guy. He habitually carried a knife and not a handgun. I kept my hand on my undrawn weapon until after I reached my car and drove away. If I had seen so much as a stainless steel cigarette lighter coming out of that pocket, I would have fired until the threat went down. A friend of mine killed him a few months later.

Tell me something. If, in the first episode, I had no cover...should I have waited to verify the existence of a weapon? Verification would have most likely involved him firing at me through his coat.
 
BQ is right

You have no way of knowing whether or not the threat is real...

if it is a gun in the pocket, and you do not 'ready', you're beaten.
It's been said that those who prevail in a gunfight are most often the ones who decided to act 1st, not react...
 
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