Case Highlight: He Fired a Gun On Video, But We Showed He Was Overcharged. Our client made a split-second, heated mistake: he fired a gun once, in frustration, after finding unexpected people in the family business he managed. The prosecution tried to turn that moment into a felony for maliciously discharging a firearm, claiming someone’s life could have been in peril. But the gun was never aimed at anyone, and no one was hurt. The jury held him accountable, but only for what he actually did.

 

I want to start off by thanking you for being here. There have been issues, not just in Hampton Roads, not just in Virginia, all across the country with people showing up for jury duty in the age of COVID; so I genuinely thank you for being here because he's been waiting a long time for his day in court. As you heard, it's been about two years now, and it wouldn't have happened without you showing up to do your duty. So I give you my thanks, and I know that [THE DEFENDANT] thanks you as well. [CO-COUNSEL], my colleague, told you in the opening statements that we wouldn't be standing in front of you and trying to make the claim that [THE DEFENDANT] didn't do anything wrong. I think in his exact words he said we wouldn't be making the argument that he handled the situation appropriately. He definitely didn't handle the situation appropriately. I think we can all agree on that. I don't disagree with the notion that what he did was wrong. It was wrong. He owns that. He takes responsibility for that. This case is not about whether he handled the situation appropriately because he clearly did not. The reason that we're here is very simple. We're here because when you hold a man responsible, you hold him responsible for the right thing. You hold him responsible for what he actually did. You hold him responsible for charges that are supported by the facts of the case. They have overcharged him. That's the simple reason that we're here. He is guilty of the brandishing charge. No doubt about that. The two elements of the brandishing charge. He brandished a firearm. No question they proved that beyond a reasonable doubt. The second element of that offense is to reasonably put somebody in harm. I would suggest to you that I think [WITNESS 1] did put on a little bit of a show. That being said, I do think a reasonable person in her position would have been in fear, would have had apprehension. I certainly would. I think any reasonable person would if somebody has a gun in their hand. Okay. He's responsible for that. He owns that. He should be held accountable for that. But what he should not be accountable for is this charge of maliciously shooting a firearm. That charge has absolutely no remote basis in the facts of this case.

 

The very simple reason -- I'm going to get more into the facts and the legal analysis in a minute. But just to give you a sneak preview of the argument, the very simple reason it's not supported is those last two elements the prosecution was talking about. Okay. The second element is they have to prove that a person's life was in peril, that a person's life may have been in peril. The gun was never pointed at anybody. Everybody agreed on that. That unanimously across the board was agreed on. Also, supported by the video, was never fired in the direction of another person. All of that is agreed upon. But before we get into a more in-depth analysis, I think it makes sense just to at least -- let's briefly retrace what the facts of the case are. [CO-COUNSEL] told you in the opening that we didn't anticipate there was going to be a lot of disagreement about the facts. Based on the argument I just heard, I do think we've got some disagreement on the facts. So I at least want to go back over it.

 

What the testimony and the evidence has shown you in this case is [THE DEFENDANT] started working at [THE CLUB] sometime around the beginning of May. We heard that it's a family business. His dad played a role in the business. His sister played a role in the business. He came to work as the general manager. And you heard that he made sacrifices in order to do that. He had a contracting business. You heard through the jail calls he has a family. But he wanted to work with his family, support his family's business. So he's working as the general manager, and he has a lot of responsibilities that he's juggling as the general manager. You heard he's doing hiring, scheduling, he has to buy food, buy the booze for the business, do the inventory, set up point of sale, responsible for marketing, booking acts. When you run this sort of business, you're juggling a lot of different responsibilities. And you heard both through his testimony and through the jail calls that he was proud of the work that he was doing there. He took a great deal of pride in it. He thought he was doing a good job. In the jail calls I wrote down, This is what I built. That's all I have. He was proud of the work that he had done, proud that he's helping to build a successful business for his family. And I think it's sort of maybe deeply embedded in the psyche of especially young boys that they're trying to impress their dad. He's working with his dad and he thinks he's doing a good job, and he's continuing working there throughout the entire summer, the busiest time of the year clearly at any oceanfront business when you live in a resort city like we do. And then we hear at the very tail end of the summer season there's a conversation with his father. The conversation doesn't even take place face to face. It takes place over the phone. And all of the evidence has been that his father tells him, I want you out. I don't want you involved in the business anymore. Obviously, yes, it's very clear he was hurt, that he was emotional, that he was upset. It's abundantly clear that he was upset. All of that is reflected in the jail calls. It's also reflected that he's extremely confused about what his status is. He's says, I'm trying to figure this out. They were trying to take me out with no warning. They went behind my back. No warning. No nothing. They stabbed me in the back. So clearly he is upset. He's surprised. He's emotional.

 

I think it's also very clear on this evidence that this was not a highly organized business entity. This was not a situation where he was brought on, there's a signed employment contract, you're officially the general manager, these are your responsibilities. From what we've heard, all of the paperwork wasn't even in his dad's name. The testimony was that his sister's name was on the liquor license. His sister's name is on all the business entities. So there's a lot of question as to what authority his dad would even have to push him out of the business. And you heard from [THE DEFENDANT] that he's reaching out to his sister trying to clarify his status. And, again, that's reflected in the Commonwealth's own evidence that he's confused, saying, I'm trying to figure all of this out. They've tried to paint a picture that when he shows up the morning of September 4th, he's there because he wants revenge and this is all preplanned. That is not consistent with the evidence in this case and it's not consistent with their own evidence. They've gone to great pains to put in all of these recordings. You hear on the last recordings they admitted into evidence, he's speaking with a friend, clearly in confidence, having no clue that this is going to be played two years later in front of a jury. And you can tell from all of the other calls and some of the colorful language, I'll put it mildly, he's not being reserved. He's speaking openly. And he tells his friend, When I showed up, there's three people sleeping there. And he indicates he was surprised. He still has a key to the business that works. The reason he's there, a month prior he had booked a reggae band and a comedy act -- the flier for it was admitted into evidence. And he still takes pride in this business. He's still proud of it. He still wants the business to succeed. He's unclear what role, if any, he's going to play in the business going forward. But he's not just going to abandon it and not show up. When what? There's these people who -- who knows who these people are -- somebody his dad met in the club and had sitting in the VIP section. There's no indication whatsoever these people played any role up until that point in the business at all.

 

He showed up at 8:30 in the morning, okay. He had no reason to believe anybody is going to be there. It's a nightclub. There is no evidence that he would have any clue that anybody is there. They have made a lot of this idea that it's inherently nefarious that he had a gun on him. This is an oceanfront business, a cash business. There is nothing unusual about somebody who runs a business, owns a business in the resort area having a gun. We all live in Virginia Beach. If you're familiar with the resort area, we know what goes down down there. There's nothing strange about having a gun on you in that circumstance. Then when he goes into the club, he goes upstairs and he's surprised to find three people sleeping there. Two of the people he's never seen in his life. The other person he saw in passing, [WITNESS 2]. And I think we can all agree there's obviously a very heated interaction with [WITNESS 2], okay, and I think the agreement was it's going both ways. There's profanity being hurled by her, by him. It's a very heated, aggressive conversation. Again, did he handle it appropriately? Absolutely not. I'm sorry. It doesn't matter how upset you are, how hurt you are, you can't pull a gun out. You can't fire a gun in the air. No question about that. You have to hold him responsible for the right thing, though. What the video very clearly reflects and what is supported by the jail calls they put into evidence is this was a split-second decision that he made in the absolute heat of the moment. His own words on the jail call, I acted out of emotion. I F'd up. That's what he said. And, of course, that's exactly what's reflected in all of his actions.

 

And you see in the video, they've tried to embrace the video as powerful evidence for them. It's probably their weakest evidence in the whole case. You see that he acts very quickly. It's one very quick motion. That's the only shot he fired. He testified and told you, I know I screwed up. I regret that I handled it that way. The recording, I acted out of emotion. After the one shot is fired, he allows them to leave, does not try to prevent [WITNESS 1] from calling 911. You heard that he actually came downstairs and allowed [WITNESS 1] to come back into the club. Said, Sure, you can come back in. You can come get your friends. Within ten minutes or so, he's surrendering to the police, surrendering the firearm, surrendering the shell casing. You heard from [DETECTIVE], He was nothing but polite and cooperative with me. I read him the Miranda rights. He agreed to make a statement. He admitted that he fired the gun. He even showed me that there was video surveillance and showed me how to access it, which I think, again, just really goes to show these other folks are not genuinely running the club at that point. They don't even know how to access the video surveillance. He's the one that provides it to the police. Totally cooperative across the board because after he has a moment to cool down, deliberate, and reflect, he realizes, I screwed up. And from that point forward, he's cooperative. He's accepting responsibility for what he did. Those are the facts.

 

So now we have to take the law -- all those jury instructions, by the way, they go back with you, so don't think you have to memorize them based on your notes. You're going to take those jury instructions and you apply them to those facts. So I think this is a good moment to talk about beyond a reasonable doubt and what that means because that's their burden in this case. They have to prove each and every element beyond a reasonable doubt. Beyond a reasonable doubt is the highest standard that exists in any courtroom in this country. You can go to federal court. Go to court in Alaska, California, Texas. It doesn't matter where you go. It is the highest burden that exists in any courtroom in this country. There's a way I like to put that that I think makes it even more meaningful. We're not always here for criminal cases. A lot of the time courtrooms are about disputes about money or maybe they're disputes about custody of a child or parental rights. Beyond a reasonable doubt is higher than the standard in any of those cases. It is higher than the standard that's required to take your money from you. It's even higher than the standard that's required to take your own children from you, the most precious thing that any of us could have. That's how high it is. Beyond a reasonable doubt is such an extraordinarily high standard because in this country we take liberty and we take freedom seriously. That's what this country is founded on. We don't take chances of guessing people into convictions that are more serious than what they actually did. We don't do that. And that's why it is such an extraordinarily high standard. And when you're dealing with the highest burden, the highest standard that exists in any courtroom in this country, it naturally flows from that but it demands the highest quality of evidence. And as you're going through each one of these elements of the offense, you have to ask yourself, Have I been provided with the highest quality of evidence to prove this element? As far as this element of a life being put in peril, I would submit to you there has been no evidence, let alone strong evidence. There has not been a single objective fact put before you to suggest that somebody's life was put in danger. The only facts that have been put before you are the gun was never pointed at anybody, it was never fired in anybody's direction. It was fired one time. Thereafter, he was cooperative.

 

Their whole theory, and I think it's fair to characterize it this way, is something bad could have happened. That's their argument, that, you know, there could have been a ricochet. Problem is there's no evidence that  happened or that it was likely to happen. There was some very vague suggestion there were some metal beams in the ceiling. No photographic evidence was shown to you. There's no evidence of where the bullet actually went. There was zero evidence that a bullet actually did ricochet. Zero evidence that a person was actually put in danger. Their whole argument is something bad could have happened. That's not beyond a reasonable doubt. Let's think about that exact argument in a slightly different context. Let's say, one of you -- you're driving to court to do your jury duty today and you're holding your cell phone, you're checking a text or trying to change the music, find a podcast to listen to, whatever. There's now a law that says you can't hold a cell phone, right? They do that because they want to discourage distracted driving. So let's say you get pulled over. A police officer says, I saw you holding your cell phone. I saw you looking down. You say, You know what? I was. I shouldn't have been doing it. I know that's not the right thing to do. I know that's distracted driving. So, you know, I'll pay the ticket for it. If I'm required to come to court, I take responsibility. I'm accountable for what I did. But you see quickly how an argument like that is a slippery slope to completely absurd results. What if the police officer got together with a prosecutor and said, Well, you know what? Distracted driving kills thousands, tens of thousands of people every year. It's inherently dangerous. But for the grace of God, when you were looking down at your phone -- I mean, but for the grace of God you could have plowed into another person. You could have killed people. That was dangerous. You were putting people's lives in peril, so we're going to charge you with a felony endangerment charge. That would be absurd. We would all accept in that context that charge would be completely unwarranted. You would be overcharging that individual. I'm sorry, but the logic they're employing is the exact same. It's no different.

 

And I think this is another good moment to talk a little bit more about beyond a reasonable doubt. The instructions tell you that when you're doing your analysis, a probability of guilt is not enough to satisfy beyond a reasonable doubt. A suspicion, no matter how strong, is not enough for proof beyond a reasonable doubt. So what that means is that if when you go back there to deliberate and you say, You know what, I think that probably a life may have been put in peril, that's not enough. If you get back there and you say, I strongly suspect that a life may have been put in peril, that's not enough. And what I would suggest to you is we're not even close to getting there. On that element of the offense, the case is not close and that shuts down that charge completely right here and now. The only appropriate verdict for the maliciously discharging a firearm is not guilty.

 

But they haven't proven the third element either, which is malice. And they had sort of skimmed over malice, and I would suggest to you they cherry-picked words in the instruction. They left out this entire portion of it. Heat of passion excludes malice when that heat of passion arises from provocation that reasonably produces an emotional state of mind such as hot blood, rage, anger, resentment, terror, or fear so as to demonstrate an absence of deliberate design to kill or to cause one to act on impulse without conscious reflection. All right. What that instruction is telling you is that if you find that there's heat of passion, by definition they haven't proven malice. Their own evidence is all consistent with this being heat of passion. All you have to do is listen to the jail calls and watch the video. Again, they stabbed me in the back. That's not fair. No warning. No nothing. This is what I built. I acted out of emotion. I F'd up. His actions in the video are all consistent with this being a split-second, heat of passion, terrible choice. And there's no doubt it was a bad choice, but it was done spur of the moment. There was no design. There was no reflection. There was no plan, nothing predetermined. And you see it in the video where his hand goes up. Almost instantaneously he jerks his hand up. And once he realizes I just did something incredibly stupid, from that point forward he's cooperative with the police. There is absolutely reasonable doubt when it comes to malice.

 

There's another instruction that tells you if you have doubt between malice and heat of passion, you have to resolve it as heat of passion. So at this point I don't want to beat a dead horse. I think you understand my arguments. I'm going to wrap it up shortly. When I sit down it's always a really painful moment as the defense attorney because I have to just sit down and be quiet and I don't get to say anything else. They get to make a rebuttal. And that's really excruciating for me because I always want to jump up and say, well, no, that's not so and make my counterarguments. And you can't do that. I have to sit down. I have to be quiet. But what I like to tell jurors is just because they say it last doesn't make it so. They don't get the final word. I don't get the final word. You get the final word in this case. And when very shortly you go back into that jury deliberation room, your verdict has to be unanimous. All twelve of you have to agree on what the appropriate verdict is, and there's a way that I like to put that to people that I think makes it a little bit more meaningful, which is every single one of you individually controls the outcome of this case. Each and every one of you has responsibility over the outcome of this case. You can't hide behind other jurors because any single one of you can and, in fact, every single one of you has the responsibility to stand up and, in a case like this, to stand up to say these facts do not support a felony charge. They simply do not. They have not proven beyond a reasonable doubt the elements of the offense.

 

And so when you come -- go into that room and you deliberate and you come back out and you return a verdict of guilty of brandishing a firearm, not guilty of maliciously discharging a firearm, you can feel good about that decision and you can walk out of the courtroom with your head held high because you will have accomplished a number of things. One, you'll have done the job that you swore to do because it's the only appropriate verdict on the facts and the law in front of you. Two, you'll have proven that people from the community will hold their government accountable. They will not just blindly do the bidding of the government and convict people of whatever charge is put before them when it's not supported by the facts. And, third, you can feel good about it because you will have held him accountable. He should be held accountable, he should be held responsible, but you will be holding him responsible for the right thing, the crime that he actually committed, not a trumped-up charge. Thank you for your time. Thank you for your attention. Thank you for your service.