You Apply the Law...Decide who is charged

[Jeff White]

There is a lot of discussion in this forum about the legal aspects of self defense. Often we'll post a news article and discuss the issues. The problem is, that reporters are often inaccurate and biased. Details that would explain why a decision was released are often omitted from the news accounts in the interest of saving space. We then speculate about what really happened and why the police/prosecutor/grand jury acted the way they did.

The following is an actual case that I worked. The names have all been changed and the location could be anywhere in Illinois. I'll post the applicable Illinois laws and you can take the information and match it up to the law and make your own decision as to who (if anyone) should have been charged, what they should have been charged with, and why.

The Setting
It's cool Sunday morning in early Summer. It has been a quiet night. There was a homecoming picnic in a town 10 miles away the night before and most people had spent the evening there.

The Cast:

Bill Jones, age 34, laborer by trade.

Sally Smith, age 21 unemployed, Bill Jones' live in girlfriend.

David Johnson, age 35, mechanic by trade. Bill Jones' best friend.

Steven Johnson, age 10, grade school student. David Johnson's son.

The Scene:

A 75 year old two story house. There is a wrap around porch on the East and South sides. The front door is on the East side of the house and leads into the living room. The living room opens into a dining room. The room that is used as the master bedroom is on the North side of the dining room. On the South side of the dining room is a door to the utility room. On the West end of the dining room is a door leading to the kitchen.

The Situation:

At 3:15 am a 911 call is placed. The complainant reports that there has been a fight and a stabbing. While the officers are responding, an additional call is placed to 911 and the caller states that the victim of the stabbing has left the scene.

The responding officer is met on the porch by Sally Smith. Smith says that there are children sleeping in the house and that she'd prefer to talk on the porch. Smith's eyes are glassy and she has a strong odor of alcohol that is obvious from 5 feet away. Smith states that she and her boyfriend, Bill Jones had went to the homecoming earlier the night before. Bill Jones had wanted to leave the homecoming and go home. Sally Smith was enjoying herself too much and wanted to stay. They argued at the homecoming and Jones went home without her. Smith then left the homecoming and went to a bar in the town where the homecoming was with David Johnson, Jones' best friend and Johnson's girlfriend.

Smith, Jones and Johnson all argued on the phone after Jones arrived home. Jones got off the phone. Johnson said he would drive Smith home and pick up his son, (who was staying with Jones' son aged 14). Smith and Johnson arrived at the residence. Johnson followed Smith into the house and went straight into the bedroom where Jones was sleeping and woke Jones to fight. Smith grabbed the portable phone and retreated upstairs. When she heard Johnson yelling that he'd been stabbed she dialed 911.

Jones was interviewed next. Jones is barefoot, wearing blue jeans with no shirt and is holding a beer. He has a distinct and strong odor of alcohol. He has no cuts, bruises or other injuries. Jones states that he argued with Smith at the homecoming and left her with Johnson and his girlfriend and went home. They continued arguing on the phone and Jones and Johnson argued on the phone. Jones stated that he got tired of arguing and went to bed. Sometime later he was awakened by Johnson who was dragging him from the bed. Jones states he asked Johnson for a minute to get his glasses and that Johnson stopped fighting and allowed him to get his glasses. Jones put his glasses on and the fight was on. Johnson pushed Jones against a large motorcycle that was in the dining room. Jones states that he felt Johnson was gong to hurt him bad if he kept him pinned against the motorcycle so he managed to twist away and get into the utility room where he grabbed a knife from the top of the dryer and stabbed Johnson to end the fight. Johnson retreated into the kitchen, then back through the living room, out onto the porch and into his van and left. He took his son with him. Jones states that Johnson is his best friend and that he doesn't want to press charges and that he won't testify against him.

The knife is recovered and entered into evidence. The knife is a Schrade Extreme Survival Knife with a 6 1/2 inch blade and saw teeth on the back of the blade. There is blood on the first two inches of the blade.

There are signs of a struggle in the dining room. The motorcycle is moved stand and all from where it was sitting. The venetian blind on the window behind the motorcyle is damaged where the handlebar had went through it.

There is no blood on the carpet in the dining room or in the utility room. The only blood is on the floor in the kitchen.

Johnson is located at the emergency room of the nearest hospital. Johnson has a wound about 1 1/2 inches deep and two inches long on the top of his frame, midway between his shoulder and neck. The wound is gaping open 1/2 inch at the top and took seven stitches to close.

Johnson also smells of alcohol and his BAC is measured at .151. Johnson is read his Miranda rights and says that he understands them and is willing to make a statement.

Johnson states that he, his girlfriend and Jones and Smith all went to the homecoming together. Jones and Smith argued over leaving and that Jones left Smith and went home. The argument continued over the phone and Jones argued with Smith and Johnson. After the argument Johnson decided to pick his son up and take Smith home. Johnson states he went in the house after Smith, woke his son (who was sleeping on the floor in the living room) and then went in the bedroom after Jones. He woke Jones and gave him time to get his pants and glasses. Then the fight was on. Johnson states that when he pushed Jones into the motorcycle he realized it as getting out of hand and he stopped the fight. Jones then went into the utility room and came out with a knife. Johnson backed away into the kitchen. Jones followed into the kitchen and stabbed Johnson. Johnson states he left the house with his son and went home, where his girlfriend called EMS. Johnson states that he and Jones are lifelong friends and he doesn't believe that Jones intended to stab him, just to scare him and that he wouldn't testify against Jones.

Johnson's son Steven is interviewed at the hospital. The son is very distraught. He states that his father and uncle (that's what he calls Jones) were fighting and that after Jones stabbed his father he backed him out of the house at knifepoint.

Ok, so who goes to jail and who goes home? Who is prosecuted?

Here is the applicable Illinois law:
http://www.ilga.gov/legislation/ilc...SeqEnd=9300000&ActName=Criminal+Code+of+1961.

(720 ILCS 5/Art. 7 heading)
ARTICLE 7. JUSTIFIABLE USE OF FORCE; EXONERATION

(720 ILCS 5/7‑1) (from Ch. 38, par. 7‑1)
Sec. 7‑1. Use of force in defense of person.

(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.
(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7‑4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93‑832, eff. 7‑28‑04.)

(720 ILCS 5/7‑2) (from Ch. 38, par. 7‑2)
Sec. 7‑2. Use of force in defense of dwelling.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent,

riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or
(2) He reasonably believes that such force is

necessary to prevent the commission of a felony in the dwelling.
(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7‑4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93‑832, eff. 7‑28‑04.)

(720 ILCS 5/7‑3) (from Ch. 38, par. 7‑3)
Sec. 7‑3. Use of force in defense of other property.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with either real property (other than a dwelling) or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent the commission of a forcible felony.
(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7‑4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93‑832, eff. 7‑28‑04.)

(720 ILCS 5/7‑4) (from Ch. 38, par. 7‑4)
Sec. 7‑4. Use of force by aggressor.
The justification described in the preceding Sections of this Article is not available to a person who:
(a) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(b) Initially provokes the use of force against himself, with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or
(c) Otherwise initially provokes the use of force against himself, unless:
(1) Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm, and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(2) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
(Source: Laws 1961, p. 1983.)

 

[Jeff White]

http://www.ilga.gov/legislation/ilc...eqEnd=23500000&ActName=Criminal+Code+of+1961.

(Text of Section from P.A. 94‑482)
Sec. 12‑4. Aggravated Battery.
(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.
(b) In committing a battery, a person commits aggravated battery if he or she:
(1) Uses a deadly weapon other than by the discharge

of a firearm;
(2) Is hooded, robed or masked, in such manner as to

conceal his identity;
(3) Knows the individual harmed to be a teacher or

other person employed in any school and such teacher or other employee is upon the grounds of a school or grounds adjacent thereto, or is in any part of a building used for school purposes;
(4) Knows the individual harmed to be a supervisor,

director, instructor or other person employed in any park district and such supervisor, director, instructor or other employee is upon the grounds of the park or grounds adjacent thereto, or is in any part of a building used for park purposes;
(5) Knows the individual harmed to be a caseworker,

investigator, or other person employed by the State Department of Public Aid, a County Department of Public Aid, or the Department of Human Services (acting as successor to the Illinois Department of Public Aid under the Department of Human Services Act) and such caseworker, investigator, or other person is upon the grounds of a public aid office or grounds adjacent thereto, or is in any part of a building used for public aid purposes, or upon the grounds of a home of a public aid applicant, recipient, or any other person being interviewed or investigated in the employee's discharge of his duties, or on grounds adjacent thereto, or is in any part of a building in which the applicant, recipient, or other such person resides or is located;
(6) Knows the individual harmed to be a peace

officer, a community policing volunteer, a correctional institution employee, an employee of the Department of Human Services supervising or controlling sexually dangerous persons or sexually violent persons, or a fireman while such officer, volunteer, employee or fireman is engaged in the execution of any official duties including arrest or attempted arrest, or to prevent the officer, volunteer, employee or fireman from performing official duties, or in retaliation for the officer, volunteer, employee or fireman performing official duties, and the battery is committed other than by the discharge of a firearm;
(7) Knows the individual harmed to be an emergency

medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, other medical assistance, first aid personnel, or hospital personnel engaged in the performance of any of his or her official duties, or to prevent the emergency medical technician ‑ ambulance, emergency medical technician ‑ intermediate, emergency medical technician ‑ paramedic, ambulance driver, other medical assistance, first aid personnel, or hospital personnel from performing official duties, or in retaliation for performing official duties;
(8) Is, or the person battered is, on or about a

public way, public property or public place of accommodation or amusement;
(8.5) Is, or the person battered is, on a publicly or

privately owned sports or entertainment arena, stadium, community or convention hall, special event center, amusement facility, or a special event center in a public park during any 24‑hour period when a professional sporting event, National Collegiate Athletic Association (NCAA)‑sanctioned sporting event, United States Olympic Committee‑sanctioned sporting event, or International Olympic Committee‑sanctioned sporting event is taking place in this venue;
(9) Knows the individual harmed to be the driver,

operator, employee or passenger of any transportation facility or system engaged in the business of transportation of the public for hire and the individual assaulted is then performing in such capacity or then using such public transportation as a passenger or using any area of any description designated by the transportation facility or system as a vehicle boarding, departure, or transfer location;
(10) Knowingly and without legal justification and

by any means causes bodily harm to an individual of 60 years of age or older;
(11) Knows the individual harmed is pregnant;
(12) Knows the individual harmed to be a judge whom

the person intended to harm as a result of the judge's performance of his or her official duties as a judge;
(13) Knows the individual harmed to be an employee

of the Illinois Department of Children and Family Services engaged in the performance of his authorized duties as such employee;
(14) Knows the individual harmed to be a person who

is physically handicapped;
(15) Knowingly and without legal justification and

by any means causes bodily harm to a merchant who detains the person for an alleged commission of retail theft under Section 16A‑5 of this Code. In this item (15), "merchant" has the meaning ascribed to it in Section 16A‑2.4 of this Code;
(16) Is, or the person battered is, in any building

or other structure used to provide shelter or other services to victims or to the dependent children of victims of domestic violence pursuant to the Illinois Domestic Violence Act of 1986 or the Domestic Violence Shelters Act, or the person battered is within 500 feet of such a building or other structure while going to or from such a building or other structure. "Domestic violence" has the meaning ascribed to it in Section 103 of the Illinois Domestic Violence Act of 1986. "Building or other structure used to provide shelter" has the meaning ascribed to "shelter" in Section 1 of the Domestic Violence Shelters Act; or
(17) Knows the individual harmed to be an employee

of a police or sheriff's department engaged in the performance of his or her official duties as such employee.
For the purpose of paragraph (14) of subsection (b) of this Section, a physically handicapped person is a person who suffers from a permanent and disabling physical characteristic, resulting from disease, injury, functional disorder or congenital condition.
(c) A person who administers to an individual or causes him to take, without his consent or by threat or deception, and for other than medical purposes, any intoxicating, poisonous, stupefying, narcotic, anesthetic, or controlled substance commits aggravated battery.
(d) A person who knowingly gives to another person any food that contains any substance or object that is intended to cause physical injury if eaten, commits aggravated battery.
(d‑3) A person commits aggravated battery when he or she knowingly and without lawful justification shines or flashes a laser gunsight or other laser device that is attached or affixed to a firearm, or used in concert with a firearm, so that the laser beam strikes upon or against the person of another.
(d‑5) An inmate of a penal institution or a sexually dangerous person or a sexually violent person in the custody of the Department of Human Services who causes or attempts to cause a correctional employee of the penal institution or an employee of the Department of Human Services to come into contact with blood, seminal fluid, urine, or feces, by throwing, tossing, or expelling that fluid or material commits aggravated battery. For purposes of this subsection (d‑5), "correctional employee" means a person who is employed by a penal institution.
(e) Sentence.
Aggravated battery is a Class 3 felony, except a violation of subsection (a) is a Class 2 felony when the person knows the individual harmed to be a peace officer engaged in the execution of any of his or her official duties, or the battery is to prevent the officer from performing his or her official duties, or in retaliation for the officer performing his or her official duties.
(Source: P.A. 93‑83, eff. 7‑2‑03; 94‑482, eff. 1‑1‑06.)

(720 ILCS 5/12‑11) (from Ch. 38, par. 12‑11)
Sec. 12‑11. Home Invasion.
(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present or he or she knowingly enters the dwelling place of another and remains in such dwelling place until he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon, other than

a firearm, uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury, except as

provided in subsection (a)(5), to any person or persons within such dwelling place, or
(3) While armed with a firearm uses force or

threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(4) Uses force or threatens the imminent use of

force upon any person or persons within such dwelling place whether or not injury occurs and during the commission of the offense personally discharges a firearm, or
(5) Personally discharges a firearm that proximately

causes great bodily harm, permanent disability, permanent disfigurement, or death to another person within such dwelling place, or
(6) Commits, against any person or persons within

that dwelling place, a violation of Section 12‑13, 12‑14, 12‑14.1, 12‑15, or 12‑16 of the Criminal Code of 1961.
(b) It is an affirmative defense to a charge of home invasion that the accused who knowingly enters the dwelling place of another and remains in such dwelling place until he or she knows or has reason to know that one or more persons is present either immediately leaves such premises or surrenders to the person or persons lawfully present therein without either attempting to cause or causing serious bodily injury to any person present therein.
(c) Sentence. Home invasion in violation of subsection (a)(1), (a)(2) or (a)(6) is a Class X felony. A violation of subsection (a)(3) is a Class X felony for which 15 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(4) is a Class X felony for which 20 years shall be added to the term of imprisonment imposed by the court. A violation of subsection (a)(5) is a Class X felony for which 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court.
(d) For purposes of this Section, "dwelling place of another" includes a dwelling place where the defendant maintains a tenancy interest but from which the defendant has been barred by a divorce decree, judgment of dissolution of marriage, order of protection, or other court order.
(Source: P.A. 90‑787, eff. 8‑14‑98; 91‑404, eff. 1‑1‑00; 91‑928, eff. 6‑1‑01.)

The great majority of self defense situations are much closer to this example then they are to the nice clean stories you see in The Armed Citizen in your NRA magazine.

Jeff

 

[Preacherman]

I suppose, from my perspective, it would boil down to who initiated the attack. That person would be responsible for the initial offence, and would therefore carry a disproportionate share of the blame and/or legal responsibility, even if he later discontinued the attack - his victim might not have realized that this had happened.

Unfortunately, determining who started what is going to be a matter of one person's word against another, and since alcohol was involved . . . messier and messier!

(BTW, Jeff, nice thread! This makes us think, which is important. More such, please!)

 

[sacp81170a]

Tough one. Depends on who you believe. If Johnson broke off the attack and attempted to leave *before* Jones stabbed him, then Jones could be charged with aggravated battery. If you believe Jones' statement that stabbing Johnson was what stopped the fight, then no charges against Jones.

Johnson would be charged for entering the home and starting the fight, but it comes close to mutual combat when he allowed Jones to get his glasses and put his pants on unless Jones is under no duty to retreat while in his home (I assume Illinois law reads this way). If this is the case, then he used reasonable force to stop the home invasion. If it's not the case, Jones could have used this as an opportunity to retreat.

Bottom line:

Johnson comes away with home invasion at least and a DUI too.

Depending on when Johnson attempted to retreat (before or after the stabbing) Jones could be charged with aggravated battery. Absent other eyewitnesses to the actual stabbing, forensic evidence is all you've got to go on and that's inconclusive. Favor goes to Jones in that event.

Johnson goes to jail. Jones goes home, with details to be sorted out by the investigating officer.

 

[Jeff White]

There is no duty to retreat in Illinois. The assailant must stop fighting when the aggressor withdraws in good faith.

It's been my experience that most uses of force in self defense are more like this case then the badguy confronts good guy in the bar, parking lot, mall home.....There are very few cut and dried, black and white scenarios. Most of them are as murky as this one or worse.

Jeff

 

[pcf]

If Johnson were likely (or appeared likely) to returns to Jones' dwelling after being released from the hospital. Johnson would go to jail for public intoxication, or disturbing the peace so he could cool off.

Since neither is cooperative, it's not a domestic violence or child abuse case, it's doubtful that the DA would want anything to do with the case.

 

[mp510]

Johnson should definetely be arrested as he was the aggressor, and he assaulted and batterized Jones without provocation. I believe that Jones definetely reacted with too mcuh force. He too should face prosecution. Had he used less force than a knife, I would say that Jones should notbe charged, but I believe the force used was excessive.

 

[NickBallard]

Interesting how Jones went into a different room and then back again with a knife!

One thing that really stands out to me is how both Johnson and Jones both agree that Jones went from the dining room into the utility room and then back again with a knife. Jeff, so to make sure I'm understanding this correctly, when Jones was fighting he didn't just reach over to grab the knife, but went into a different room to grab the knife? The reason I say this is I notice on the news quite frequently how one guy punches the other, and then the punched guy walks over to his car to grab a gun and then walks back again (or to a different room and then back again), and shoots the guy who punched him and claims self-defense. This often doesn't sound like self-defense to me, but as passion-driven assault. Since Jones was in his house, he didn't need to retreat (I'm quite against being required to retreat whether the law says you have to or not). I'm not even against Jones coming back into the dining room after he grabbed his knife (since it was his house and it doesn't make any moral sense why he couldn't). If he would have held out the knife and said, "Leave me alone," that would have been okay. But he didn't give warning and walked all the way up to Johnson so that he could stab him. Knives are not long rang, but really close up weapons, so the way that it was used in this situation not only sounds like excessive force, it doesn't even sound like any type of self-defense since the threat was in the distance! The physical evidence shows the motorcycle slamming was in the dining room, but the actual stabbing was in the kitchen, so Johnson backed away which shows Johnson was retreating while Jones was attacking. Jones and Johnson were best friends, which doesn't mean that one can go into the other's house, but this really separates how this would have been seen if a complete stranger came into his house. True, Johnson was in Jones house. However, it sounds like Smith let him in. Is this correct Jeff? Smith was a resident at Jones house. Are there any state laws that say if your son is at someone else's house it is illegal to drive over to pick up your son and if an adult over the age of 18 allows you into the house to get your son that's illegal? Jeffrey Dahmer invited people over to his house all the time so that he could hurt (kill) them. Just because someone's in your home doesn't mean you can hurt them. There's a difference between someone breaking in and someone being let in by a resident to pick up his son. So if I'm understanding all the facts correctly, Jones should be criminally charged? Should Johnson be charged with anything? According to Johnson's view, the fight sounded pretty mutual and agreed upon. Jone's viewpoint is a little vague. At first it says that Johnson dragged him out of bed, but then he says that he asked Johnson if he could get his glasses and then "the fight was on". This almost sounds like mutually agreed upon fight, not an assault. So it would depend on the physical evidence found and their testimonies about whether it was a mutually agreed upon fight (like the guy who says, "I'll meet you in the parking lot" and you say okay), or if Johnson attacked him and Jones just put up punches and pushes to get him off him and the heck out of his house after telling him to leave. But definitely Jones should be criminally charged for the knife incident, unless if I'm not understanding one of the facts that I just analyzed.

 

[Jeff White]

NickBallard asked;

Jeff, so to make sure I'm understanding this correctly, when Jones was fighting he didn't just reach over to grab the knife, but went into a different room to grab the knife?

That's correct, both parties stated that the knife was in the utility room on the dryer. The motorcycle was against the wall and the utility room door is right at the rear wheel of where the motorcycle was. Jones states he twisted away from Johnson and got to the knife and stabbed Johnson in the dining room near the rear of the motorcycle. Johnson states he retreated into the kitchen and Jones stabbed him there.

However, it sounds like Smith let him in. Is this correct Jeff? Smith was a resident at Jones house.

Yes, Smith lived with Jones. When asked she specifically stated that she did not invite Johnson into the house that he just followed her in.

Are there any state laws that say if your son is at someone else's house it is illegal to drive over to pick up your son and if an adult over the age of 18 allows you into the house to get your son that's illegal?

The key factor here is that Smith states she did not invite Johnson in and Johnson admits that he just followed her through the door. Even though Johnson and Jones were best friends and he probably walked through that door without being asked in many times in the past, this time he went in to fight.

The problem here is deciding what really happened. Look at all the statements and see what matches between the them. Then look at where they differ.

The police are almost never present at an incident like this when it happens. So you have to sift through everyone's statement and look at what physical evidence there is and try to piece together what really happened.

So you think that Jones should be charged. What should the charge be? If you click on the link above the Aggravated Battery cite, you'll find the legal definition of assault, aggravated assault and simple battery. The law gives you some other options.

What about Johnson walking into the bedroom and waking Jones to fight? Should he be excused for that? Does he have a right to enter the room where Jones is sleeping and start a fight?

Jeff

 

[Powderman]

Much as I dislike "mutual combat" situations:

Jones: 1 in custody, Aggravated Assault. (In WA State, Assault in the First Degree.)

Johnson: 1 in custody, Home Invasion. More than likely, he would cultivate an assault charge, too.

 

[beerslurpy]

If neither of them want to press charges against the other, what more needs to be said? Neither of them were badly injured and I dont see any State interests that were harmed by the fight. Frankly I would take a report and go away. Also take a photo of the knife and the injury in case they decide to kill each other later.

 

[unixguy]

Johnson goes for assault & battery. Jones doesn't have to testify against Johnson, since Smith also saw the fight and can testify to it. (Hopefully the situation doesn't get so desparate that the son has to be called.)

Jones goes for EPA violations and crimes against decency for having a motorcycle in his dining room. OK, maybe not this one.

 

[Tim Burke]

Unfortunately, we can't simply charge both of them with felony stupid.
Charge Johnson with Home Invasion, Jones with Aggravated Battery, and see what shakes out. My prediction: they'll both make bail, neither will get convicted and the only punishment either gets will be the jail time they serve before they make bail, and the bail bondsman's percentage.

 

[joab]

I agree with beerslurpy
No complainant, no charge.
Two drunks behaving badly.
Notify DCF to monitor the children and let it go

But if I had to decide, the benefit of doubt would go to the homeowner

 

[Biker]

Yup, no charge for either.

Biker

 

[NineseveN]

I think there shouldn't be any charges filed on any of them for the assault, but I suspect that Jeff wouldn't have posted this if no charges were filed...

However, this type of conduct and the amount of alcohol with a 10yr old in the home does beg for some considerations.

 

[LaEscopeta]

THEY ARE ALL GUILTY...

…including the 10 year old!

Just kidding. But I’m guilty of just skimming the above posts before responding, so with foot ready for my mouth, I think:

These 2 guys are trouble waiting to happen, and this is a case of zero tolerance for felony stupid. Charge Johnson with Home Invasion, maybe Assault, and Jones with Aggravated Battery, based on the testimony of Smith the 10 year old Steven Johnson in court. Also use the police statements made by Jones and Johnson against them selves and each other. There should be no need for Jones and Johnson to press charges or testify against each other.

Smith’s and Johnson’s own statements should be enough to show he went into Jones room and woke him up with malice intent.

Jones statement is contradicted by the type of wound and the lack of blood where Jones says the stabbing occurred, and also by the 10 year old’s statement that Jones backed Johnson out of the house at knife point. That should be enough to show Jones used deadly force AFTER he was no longer being threatened.

If this get chalked up to just two dumb drunks fighting and no charges are filed, in 6 months the cops will be back after another fight, and maybe that time the knife will have gone in the neck.

If both are charged AND prosecuted, it may very well end with:

…they'll both make bail, neither will get convicted and the only punishment either gets will be the jail time they serve before they make bail, and the bail bondsman's percentage.

But at least it drives the point home to the 2 drunks that they can’t be drunk and fighting without negative consequences. Plus there is a chance (abet a small one) the 10 year old will learn a lesson from this and not grow up like his dad and “uncle.”

 

[beerslurpy]

With the number of busybodies in this thread, it is little wonder that the nanny-state is alive and well.

Dont you guys think the resources of the State would be better spent pursuing real criminals, rather than pressing charges (that will fail to convict) against two fighters with superficial wounds who have already reconciled?

However, if youre trying to win extra points by making rowdy drunks hate an overintrusive government, this is certainly a golden opportunity.

Their statements to police are testimonial and would be excluded, by the way. Note that they both inculpated the other and didnt confess their own wrongdoing, which places them outside the confession hearsay exception. You cant use the other's statement unless you can get him to testify, which they both refuse to do. All you will have going into the trial are the knife and ER room testimony as to the fact that he had a wound. I think a jury would rightfully ask "if these guys attacked each other, why cant you get them to testify as to that fact?"

 

[sacp81170a]

Two separate issues: who goes to jail tonight and who gets charged?

Johnson goes to jail for the DUI. Who gets charged with what involving the altercation depends on who presses charges. At the street cop level, that's more than likely what would happen in my jurisdiction.

 

[NickBallard]

Jones charged with aggravated battery, Johnson with home invasion and battery

I think Jones should be charged with aggravated battery. He used a knife (deadly weapon other than firearm discharge) to commit battery (striking another individual in an unlawful way). Jones went from the dining room where Johnson was into the other room back into the living room (for those who want to know why I think this wasn't self-defense, see my first post on this topic for more details). Even after that, the physical evidence and how their testimonies line up and differ show that Jones didn't stab him in the dining room, but that Johnson backed away and Jones followed after and stabbed him in the kitchen. (I know because I've cut my finger to the bone before and blood squirted everywhere until I could apply pressure to it) It would have been pretty difficult to hide it if he was stabbed in the dining room and then went to the kitchen.

I think Johnson should be charged with home invasion and simple battery. Smith didn't invite Johnson in, and it sounds like she not only did that but told him not to come in, but that he forced himself in? Is that right Jeff? So that's home invasion. Johnson also was striking Jones and even though he had no injuries, the state law says injuries don't matter in the definition. If it was NOT a mutually agreed upon fight (Johnson, "Let's fight", Jones, "OK, but let me get my glasses first. OK, I'm ready to fight"), then Johnson definitely should be charged not only with the home invasion, but also battery.

 

[NickBallard]

They both should be charged even if they don’t want the other one to be charged

The thing about this is most people who are convicted of assault and like crimes are not convicted the first time they assault. Usually they’ve done it quite a few times before. Remember, Ted Bundy found that quite motivating when he worked for a short while at a place where he saw how criminal investigation works and found that out. Quite a few times when someone’s murdered, no one’s convicted for the murder (kind of not a good thought). So even if Jones or Johnson doesn’t want the other to be charged, it may help out future victims who may be assaulted or battered (isn’t that the point of all this, more than it is as a way to revenge?). When the police pull up their records later on when they deny that they attacked someone, the police will be a little more suspicious. I’ve heard of times when people have shot unarmed people because they said they felt like their lives were about to end. Then the only thing that stopped them from being convicted in using a gun in self-defense was the extensive record of the other person being charged with assaulting and battering people. The U.S. Supreme Court ruled that police are to protect society as a whole, not individuals, so even if Johnson and Jones don’t want the other one to be charged, the whole of society is more important! If they don’t want the other to be charged, then they should have just kept their mouth shuts and just said, “The other one’s a good friend,” after Smith was interviewed.

 

[gezzer]

Home invader should be not only charged but dead. Homeowner should get a medal for saving the gov.com the expense of a trial and custody for twenty years of the home invader. I don't care if the homeowner left the room to get a weapon, he needed to get a weapon to repel boarders.

 

[pcf]

I'll bet you pesos to brand new pickup trucks, that the boy will not testify against his father or "uncle", without some "encouragement"

The girlfriend might testify but there's no way to corraborate her testimony. If she won't willingly testify is it worth having to charge her with obstruction or contempt of court?

The DUI charge, can you prove that this guy violated the law. He was drinking, he got stabbed, he drove home, his girlfriend called EMS. Can you show where he violated a single DUI law? Where's the evidence that his BAC was over .08 and he was operating a motor vehicle?

The "well charge them with felonies, they'll get dropped, and that'll be their punishment"......

What if they can't make bail? They might spend a year or two in prison while "things get resolved". I'm sure most of you would be screaming "Police State, Comrade" if that was you or yours.

 

[itgoesboom]

I am going to reply without reading everyone else's comments, so as to only give my initial thoughts.

Both idiots should be arrested.

Moron #1 started a fist fight by attacking Moron #2.

Moron #2 escalated the fight into a knife fight, and according to Future Moron #1, backed Moron #1 out of the house at knife point.

Moron #2 doesn't have any injuries, and from what I can tell can't justify using lethal force (knife) unless there is justification, which I think is lacking here.

Moron #1 should be arrested for DUI if he drove home as well.

Just what I think.

I.G.B.

 

[sacp81170a]

The DUI charge, can you prove that this guy violated the law. He was drinking, he got stabbed, he drove home, his girlfriend called EMS. Can you show where he violated a single DUI law? Where's the evidence that his BAC was over .08 and he was operating a motor vehicle?

Good point. If you've got eyewitnesses to him driving to the ER or camera footage of him driving, you've got PC for the DUI. If his girlfriend drove him to the ER, no PC.