Opinion
No. 2009 KA 1740.
April 5, 2010.
I respectfully dissent and believe the evidence indicates the defendant was acting in self-defense and the homicide was justifiable. The majority takes the position that the defendant had disarmed the victim and the killing was not necessary to save him. Thus, the defendant had abandoned the role of defender and taken on the role of aggressor. I believe this is legally incorrect.
There is no question that the defendant was the original victim. Candy testified that Albert hit Landor on the head with a gun and she thought the gun went off, but Landor was not hit, Luciana stated that Albert shot at Landor, but missed him and Landor knocked the gun out of Albert's hand. The defendant's taped statement was that Albert forced the gun from Luciana and shot at him. Albert then approached him and hit him in the head with the gun. At the trial, Landor declared that Albert shot at him but missed and then put the gun to his head and pulled the trigger, but the gun did not fire. He acknowledged that Albert then hit him in the head. They all agreed that Albert and Landor wrestled over the gun, Landor was able to grab it and he shot Albert twice. There is some disagreement about whether he had to chamber a round prior to firing the weapon.
The majority posits that "appellate courts have found repeatedly that during such encounters where the defendant disarms the victim/aggressor and then kills him or uses the victim/aggressor's own weapon against him to kill or injure him, the defendant becomes the aggressor and loses the right to claim self-defense." However, none of the cases cited by the majority involved the use of a firearm. Almost all involve "overkill" by the defendants who stabbed the victim numerous times or continued to kick, stomp, and beat the victim who was on the ground.
In State v. Bates the defendant took a knife away from the female victim and then stabbed her. In State v. Pittman after chasing the defendant into the yard, the victim threw away the knife prior to the fight taking place. "The defendant then continued beating the victim, who appeared to be unconscious. This version of the incident indicates that the defendant was clearly in control of the situation, the victim was completely defenseless, and a continued beating was unnecessary." Supra, at 303. In State v. Smith the defendant testified that he was attacked by his wife who was armed with a kitchen knife. However, Mrs. Smith's body had sixteen lacerations of various lengths, including some defense wounds on her hands and arms. The fatal wound was a stab wound in her back, approximately four inches deep. Additionally, there were four small puncture wounds in her abdomen, which were made with an ice pick or other similar object. In State v. Patton the defendant was able to flip the victim over his back at which time he dropped his knife. The defendant, using his own knife, then stabbed the victim twice, once in the face and once in his side. In State v. Mackens, supra, the defendant stated that he was stabbed twice. The court found "that Donna died from a total of five stab wounds and one slash wound. Dr. Hayne testified that there were a total of nine stab wounds, which included penetrating wounds to the chest, three stab wounds to the left lung, one to the heart, and another to the right lung. The slash wound was found across the front surface of Donna's neck. . . Donna was 5 feet, 7 inches tall and weighed 130 pounds, while Mackens is six feet tall and weighs approximately 240 pounds." Supra, at 460. In State v. Jenkins the defendant disarmed the victim and stabbed him numerous times. Once the small knife bent he found a larger knife and continued to stab the victim for a total of fourteen stab wounds. In State v. Stevenson, supra, the defendant took a stick away from the victim and hit him knocking him to the ground where he continued to hit him with the stick and also stomped on him. All of these cases are clearly distinguishable from the elements before us.
The nature of the use of a firearm differs significantly from the use of a knife. It is too easy to sit back at our desks and unemotionally reflect on this highly emotional, excited, fiery encounter. The fact that the defendant fired the gun twice does not negate the justification and self-defense aspect of this conflict.
For these reasons I respectfully dissent.