would you have considered this self-defense?

[AntiqueCollector]

Curious as to others' opinions on this case...

Man pleads guilty to reduced charge in shooting of home intruder in ’06



By KORAN ADDO
Advocate staff writer
Published: Aug 22, 2008 - Page: 5B - UPDATED: 12:05 a.m.
PORT ALLEN — A man charged with second-degree murder in the shooting of an intruder in his Port Allen home pleaded guilty in 18th Judicial District Court to a reduced charge of negligent homicide.

Thomas W. Cobb, 52, opted to be sentenced immediately following his plea on Monday. State District Judge Robin Free sentenced Cobb, 6722 U.S. 190, to four years in the West Baton Rouge Parish Prison.

Cobb, who had been held in jail since 2006, was credited with time served and released from custody following his plea on Monday.

Before entering into the plea agreement, Cobb had been facing, if convicted, a mandatory life sentence in prison for the July 29, 2006, shooting in which he fatally wounded Marvin Smith, also of Port Allen, authorities said.

Maj. Richie Johnson, an investigator with the West Baton Rouge Sheriff’s Office, said that on the day of the shooting, Cobb was in his car when he received several frantic calls from his wife about two men who were in his house and refused to leave.

Johnson said Smith and another man confronted Cobb’s wife at Cobb’s home because Smith believed his girlfriend was hiding in the house.

Cobb’s wife let the two men into Cobb’s home so the men could see for themselves that Smith’s girlfriend was not there, Johnson said.

After searching the house and not finding his girlfriend, Smith and his acquaintance refused to leave the house and threatened to attack Cobb when he returned home, Johnson said.

When Cobb returned to his home, he asked Smith and the other man three times to leave, Johnson said. When the men refused, Smith lunged at Cobb and Cobb shot him, Johnson said.
Cobb originally was charged with second-degree murder, but that charge was reduced to manslaughter following interviews with the victim’s acquaintance who witnessed the shooting.

On Monday, Cobb, who was in jail awaiting trial for the killing, offered to withdraw his previous plea of not guilty to manslaughter, and instead pleaded guilty to one count of negligent homicide.

Johnson said Wednesday that Cobb’s plea bargain and subsequent sentencing were warranted due to the nature of the crime. However, Johnson also said the reduction in Cobb’s charges were also warranted based on evidence and witness statements.

The 18th Judicial District has jurisdiction in West Baton Rouge, Iberville and Pointe Coupee parishes.
http://www.2theadvocate.com/news/suburban/27261409.html

 

[cassandrasdaddy]

why did no one call cops? makes me wonder whats left out oin story

 

[mgkdrgn]

Well, they -did- screwed up:

1) you ain't an intruder if you got invited in. apparently the wife let them in.

2) Call the cops first, -then- call your husband

3) If your wife calls, call the cops, then drive home.

and .... somehow I gots the feeling that there is a lot more to this than is in this brief article.

 

[MechAg94]

The few details of the actual incident are that he asked them to leave 3 times and then one of them lunged at him and got shot. Did he ask them to leave at gun point? There has to be more to it. I can't see him pleading otherwise.

I agree this a good situation where cops on site would have helped a lot.

 

[cassandrasdaddy]

it brings to mind a time in 78 when i livred in woodbridge. house next door had a pagan move in. i knew he was involved in some things that were illegal. so when i saw a kid steal his tv in broad daylight i couldn't call the cops. likewise the dope dealer before him didn't call cops when he shot at the guys who robbed him.

 

[JDoe]

Not enough info in the story to determine if it was a self defense shooting or not.

 

[AntiqueCollector]

I posted this because I vaguely knew the guy from his postings at a coleman lamp/lantern collectors' board I used to post on a lot. http://www.oldtownyucca.com/discus/

He ran a business called southern star enterprises, restoring lamps and such. The hurricanes (Katrina/etc.) basically wiped out his business (at one point afterwards there was a malfunction caused by a power surge I think with nickel plating equipment and the chemicals in the air from it really screwed his lungs up). Then there were looters and such, no help from the police so he armed himself. Then this happened. I can't really blame him, considering the stuff that happened after Katrina, for not calling the police. Keep that stuff in mind (gun confiscations and more). I heard a little bit about him being in prison last November from another lamp collector but I couldn't get in touch with him. I had thought that LA had passed a castle doctrine law and that he'd be okay so I didn't get too worried when I couldn't get in touch with him. Guess not, I stumbled on this yesterday, so I wanted to hear opinions of it. From what I can tell, the article does present pretty much all the facts. There wasn't much to it. I'm going to try to track down court records if they're out there to see if I can find more.

 

[Bartholomew Roberts]

Well, without any more facts it would be difficult to say; but I can see two problems with claiming self-defense here:

1. They were invited into the house by the wife. Since they are not intruders, it looks like castle doctrine does not apply. If castle doctrine does not apply, you cannot use lethal force just to evict trespassers.

2. Where is the immediate threat of death or serious injury to the shooter? If the only reason there is a threat of death or serious injury is because you pulled a gun when there was no apparent threat of death or serious injury, then you are going to have a hard time claiming your use of deadly force was appropriate.

 

[AntiqueCollector]

I see your points, but, they were asked to leave after they had searched for the person and found she wasn't there, and then they made threats. So they no longer had permission to be there. I'm not entirely sure how that would affect the castle doctrine. Secondly, he didn't pull the gun, as far as I can tell, until after one of the men lunged at him and attacked.

 

[AntiqueCollector]

Okay, the LA castle doctrine law:

http://www.legis.state.la.us/lss/lss.asp?doc=78338

"§20. Justifiable homicide

A. A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.

(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.

(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.

B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:

(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.

(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.

C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.

D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Added by Acts 1976, No. 655, §1. Amended by Acts 1977, No. 392, §1; Acts 1983, No. 234, §1; Acts 1993, No. 516, §1; Acts 1997, No. 1378, §1; Acts 2003, No. 660, §1; Acts 2006, No. 141, §1."

 

[JImbothefiveth]

2. Where is the immediate threat of death or serious injury to the shooter? If the only reason there is a threat of death or serious injury is because you pulled a gun when there was no apparent threat of death or serious injury, then you are going to have a hard time claiming your use of deadly force was appropriate.

They lunged at him, there were two of them, they would not leave his home and the man was 52. If they wouldn't leave, he could have been fearing for the safety of his wife. I agree that the cops should have been called, and that there is probably more to this story.

 

[hornydragon]

I dont get it, they were ask to leave the house, what would it happend if he did not have a gun, well he get beat up, even he could get kill. I believe thats a threat when you ask them to live and they wont go.
I also believe that, there is more on the story, ....

 

[Bartholomew Roberts]

Secondly, he didn't pull the gun, as far as I can tell, until after one of the men lunged at him

Well, we have the statutes to work with. Is someone lunging at you a threat that put you "in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger."?

More importantly, can you convince the police, prosecutor and jury of that?

If you can't then you need another exception, and there doesn't look to be one in the statute quoted.

Obviously this is going to turn on the facts a great deal and based on the facts here, we don't know why the prosecutor decided to press charges or why the man decided to plea bargain instead of asking for a jury trial. We just have some general ideas about where the problem areas lie legally.

 

[TallPine]

Yes, I would consider this self defense, based on the information available.

 

[AntiqueCollector]

Well, if I was in this incident, three guys were in my home refusing to leave, had made threats, and then one lunged at me to attack, I would certainly feel my and my wife's safety and possibly life were in danger. It seems to me that a reasonable person would "reasonably believe" the same, making it a legitimate case of self-defense. I wish I could find the court documents on this but I've been unable to as of yet, they may not be available except in paper form, I'm not sure. One of the things I heard last November was his wife was working real long hours and struggling to keep their home, so it may be he just wanted to get back home regardless of the criminal record he now has. Obviously I'm not certain if that's the explanation right now.

 

[MechAg94]

In Texas, serious bodily injury is one of the reasons you can use deadly force in self defense. It has been shown in case law that fists can cause serious bodily injury.

I don't know what the equivalent precedents are in Louisiana. The bar may be set higher.

Based on what we have in the article, the guys made threats, they refused to leave the premises, and at least one man attacked. That by itself sounds like self defense to me.

However, I agree that there has to be some more facts that are missing. It could be that he drew his gun when he ordered them to leave. If he pulled his gun before the guy lunged at him, he might not be able to claim self defense. I suspect it is something else though, but what I have no idea.

 

[dalepres]

If the wife let them in based on fear of what would happen if she did not let them in, then the entry was forcible or at least unlawful. If I knock on your door and you open it and I put a gun in your face and say, "Can I come in?" and you let me in, I have forcibly entered your home. If my buddy and I knock on your door and your wife opens it and we start screaming and intimidate her into letting us in, we've forcibly entered your home.

There is nothing about Louisiana that I have heard to indicate that they respect the right of their citizens to defend and protect themselves.

While the guy charged might have been better off had he called the police on his way home, where is it in the law that says a man has to call the police to protect his family? To state that the victim has to call the police, who are notoriously slow and readily state that they have no obligation to protect citizens, makes no sense to me.

 

[JImbothefiveth]

While the guy charged might have been better off had he called the police on his way home, where is it in the law that says a man has to call the police to protect his family? To state that the victim has to call the police, who are notoriously slow and readily state that they have no obligation to protect citizens, makes no sense to me.

I wasn't saying it should be law, but having armed support, seems like a good thing to me. In a home invasion, staying maybe in a locked room with all your family if you can, and letting the cops take care of things, is also less risky. Unless the home invader becomes a threat.
You should probably describe yourself in detail though, don't want them shooting you if something happens.

 

[Hypnogator]

Sounds to me like he either didn't have the funds to fully fight the charges, or his attorney convinced him that a plea bargain and "wrist slap" punishment was better than rolling the dice and risking spending the rest of his life behind bars.

Not right, but it's the way the law sometimes works.

 

[ctdonath]

They were invited into the house by the wife.

They were subsequently dis-invited by the husband.

She likely let them in under duress: one woman vs. 2-3 men is a serious disparity of force. She didn't have much choice.

If I ask you to leave my home, you'd better. If you lunge at me instead, we've moved squarely into self-defense, and every member of the dis-invited group takes responsibility for the whole and for every member thereof. Ayoob covers this more eloquently than I can at 2:41AM.

Self-defense. No bill.

 

[leadcounsel]

1. They were invited into the house by the wife. Since they are not intruders, it looks like castle doctrine does not apply. If castle doctrine does not apply, you cannot use lethal force just to evict trespassers.

2. Where is the immediate threat of death or serious injury to the shooter? If the only reason there is a threat of death or serious injury is because you pulled a gun when there was no apparent threat of death or serious injury, then you are going to have a hard time claiming your use of deadly force was appropriate.

I disagree completely. Based on the facts, this is definately a case of justifiable self defense with a deadly weapon and the shooter should not have pled. Maybe he pled because he couldn't hire a lawyer and couldn't get a court appointed lawyer?



The statute provides for situations of self defense where there was lawful entry. Further:

No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm

I would make the argument that calling the police is constructively a form of retreat. I see no affirmative duty to call the police to oust people from your home and the statute does not require retreat. Yes, it would have been a good idea, but I see no duty.

For an attorney to encourage him to plead, there must be some negative facts in his case that aren't published.

 

[Bartholomew Roberts]

Based on the facts

And what facts are those? Heck, we can add up all the facts we know about the incident and we still come up way short on knowledge.

A lot of people here are playing "fill in the blank" with their facts - and that is easy enough to do. We can all easily imagine a scenario where someone enters your house after being invited in, gets angry, refuses to leave after being asked to leave and then lunges at you in a way that would justify the use of lethal force - the problem is that none of us know if the facts we imagine are what happened here.

The wife allowing the men into the house is relevant because it removes forcible entry from the equation and if forcible entry is removed from the equation, the only reason you are allowed to use lethal force without the threat of death or serious bodily injury is robbery or burglarly (which isn't in play here).

For an attorney to encourage him to plead, there must be some negative facts in his case that aren't published.

Seems likely doesn't it?

In Texas, serious bodily injury is one of the reasons you can use deadly force in self defense. It has been shown in case law that fists can cause serious bodily injury.

Serious bodily injury is one of the reasons you can use deadly force anywhere. However, whether or not fists are a deadly weapon is a very fact specific question. In the case you mention, the attacker was at least 10 years younger than the person he attacked and a bodybuilder. He had pulled the man halfway out of the car window (with his seatbelt still on) and was pounding his head against the metal frame of the truck and his fist when he got shot. In those circumstances, a jury* decided that it was reasonable to use deadly force. It would be imprudent to assume that fists are always going to be treated as a weapon justifying deadly force though.

*the key word here is "jury" which means you have already spent around $50,000 to get a "not guilty" verdict (or in the alternative, you allowed the state assigned public defender to take your case as one of the other dozen or so cases he is dealing with simultaneously - assuming of course you can show that you actually are indigent and cannot afford one)

 

[dalepres]

For an attorney to encourage him to plead, there must be some negative facts in his case that aren't published.

Seems likely doesn't it?

There may be some negative facts that caused the prosecutor to choose to prosecute but, it seems to me, that this could be a case of an overzealous prosecutor and judge who have kept this guy in jail for two years without a trial. When they offer him a deal that lets him walk for time served, of course the guy takes it. He wants out of jail.

Yes, there could be more to this story than meets the eye but the "more" doesn't necessarily have to be a negative about the shooter. There have been many prosecutors who have prosecuted innocent men for political or other reasons that have had nothing to do with justice.

 

[GRB]

I would have gone to trial, that is if the facts are exactly as they appeared in that article. of course I am sure there must be more to it.

 

[SCKimberFan]

Something about this entire affair seems just a bit fishy...