Case Highlight: Caught in a Mob Attack: One Man’s Fight to Protect His Brother. Our client faced a life-altering second-degree murder charge after defending his brother from a drunken mob. Outnumbered and fearing for their lives, he fired warning shots into the air and one shot while retreating. Ultimately, he was convicted of involuntary manslaughter, a far lesser charge than the Commonwealth sought, reflecting recognition that he acted under extreme stress in a chaotic, life-threatening situation to protect his family.

 

This case has been going on for a long time now. You probably heard the date about a 100 times over the course of the trial. It's been about a year and a half now. And it's been about a year and a half that [THE DEFENDANT] has been wondering about his future. This is the most important day of his life. He finds out today whether or not he's going to spend his indefinite future sleeping on a dirty mattress in a cold prison cell rather than being with his family. The Commonwealth says they didn't make you a promise in the opening statement. I guess they charge people with second-degree murder willy-nilly. Of course they made you a promise. If you're going to charge somebody, if you're going to indict somebody on second-degree murder, you're making a promise. That is a serious thing. You're making a promise that you can prove beyond a reasonable doubt that that person acted maliciously. They made you that promise in their opening statement. They made that promise when they charged him with this offense; and we're at the stage now where their evidence has come and it has gone and it has failed. It has failed to prove that [THE DEFENDANT] acted maliciously. You're going to get a whole bunch of jury instructions on malice. I think very disingenuously there were just two flashed up to you. There are more than that. Read them all, please. Because they make it very clear -- the language couldn't be clearer -- heat of passion is not malice. That's the plain language. Heat of passion is not malice. Was this heat of passion? Of course it was heat of passion.

 

Even the Commonwealth's witnesses agree it was a situation where [THE DEFENDANT] was vastly outnumbered. Even the Commonwealth's witnesses agree that it was one of the members of their group who sucker punched somebody. I don't know whether it was [PROSECUTION WITNESS 1] or [THE DEFENDANT'S BROTHER], my client's brother; but when [THE DEFENDANT] saw that, of course he was scared. That's his little brother. That's the person he's been responsible for protecting his whole life. So when he approaches, he sees guys rushing across the street. It's extremely chaotic. He thinks that he sees up to eight or nine guys. It sounds like there were seven guys, at least seven guys out there running around that night running towards the altercation. He sees that. He sees -- And we heard consistently -- there's at least five people in that other group throwing punches. He sees at least five people throwing punches at his little brother. And even in that circumstance outnumbered, watching his brother get beat up -- and don't let them dress that up as something else. Even their own witness said, Yeah, they were getting beat up. You don't need to have your brains beaten in and go to the hospital in order to be getting beaten up as they suggest. They were getting beat up. [THE DEFENDANT] saw that, and he didn't rush in with his gun. He didn't rush in and start firing indiscriminately at people. Confronted with an extremely chaotic situation -- Really the sort of nightmare scenario nobody would ever want to face. All of that adrenaline pumping through his body -- his first reaction isn't violence. It's, How do I resolve this nonviolently? That's why he discharges his firearm into the air. The Commonwealth says, That's what he claims. Why else would he fire into the air? The only reason you would fire into the air is warning shots. That's what he was doing. Why else would he fire into the air? He's trying to resolve the situation nonviolently. Didn't work. The crowd didn't disperse. He's facing at this point at least five highly intoxicated, belligerent individuals. Maybe they're too drunk to react to gunshots. I don't know. But they didn't react, and at that point his fear increases. He's facing off against a group that's not afraid of a gun. He is openly displaying a gun. He's discharged it five times into the air, and they don't run away. That should give you some insight into how [THE DEFENDANT] is perceiving this situation. These guys aren't scared of a gun; and at that point he reasonably believes, If they're not afraid of a gun, you know what? They're probably armed too.

 

And then he sees somebody reaching towards their waist, and a lot has been made of, Well, there was no gun recovered. Most of these guys were never searched. There's been nothing offered that proves that there wasn't a gun out there that night. And in fact you heard one of the Commonwealth's witnesses [PROSECUTION WITNESS 3] who said, Yeah, I heard there was another gun out there that night. We've heard multiple witnesses describe somebody with long shoulder-length dreadlocks that had a gun. There's been no evidence to establish definitively one way or another whether there was another party out there with a gun that night. But when [THE DEFENDANT] couldn't disperse the crowd, when his brother continued to get beat up, when he thought he saw a guy with a gun on his hip, at that point he's scared. There's no malice here. He was scared. Malice doesn't make sense in any way, shape, or form in this case. If [THE DEFENDANT] is a malicious killer, why is he running away as he fires the last shot? Wouldn't a malicious killer just be standing there blasting away? He's running away because he's scared. This isn't about malice. It's about survival. It's about a guy who's faced with an impossible situation as I said in the opening; and the Commonwealth makes it sound like he had all the time in the world to evaluate all the facts. This was pure chaos in the dark. People rushing everywhere, and he had to make an instant decision. How am I going to survive this? How am I going to try to survive this? How am I going to try and help my brother survive? How am I going to get back to my family tonight? How am I going to make sure that happens?

 

The most important piece of evidence in this case was the interrogation video. The Commonwealth suggests that in the intervening week [THE DEFENDANT] manufactured this story. The only problem with that argument is his story is consistent with what all of their own witnesses said. All of their own witnesses confirmed he's uninvolved in the argument. He's uninvolved in the fight. He's vastly outnumbered. He fired shots into the air. He fired one shot as he was running away. Everything is corroborated by their own evidence. He couldn't manufacture that. The Commonwealth also suggests that [THE DEFENDANT] has been reading up on the case law, and that's the only -- the reason he used the word imminent. Well, yeah, since he's been charged with second-degree murder, has he read up on the case law? Duh. Anybody who's charged with an offense is going to explore their legal situation and look at what legal defenses might be available to them. When he talked to [DETECTIVE 1] a week after this happened, he gave her the exact same story. Now, I also say that the interrogation video is the most important piece of evidence in this case because I think it's really the purest insight that we have into [THE DEFENDANT]'s state of mind. And I say that it's the purest example because of that moment when he's alone in the room by himself. And you can tell a man's true character by what he does when he doesn't think anybody else is watching. He had no idea that any jury, any judge, any person would ever watch that video. He had no idea that room was being monitored, and you saw him with his head in his hands crying, Please, Lord, forgive me. I never meant to hurt that man. And he repeated that four or five times; and because he didn't know anybody was watching, you know the tears were genuine and you know the words that he said came from the heart. The Commonwealth -- they haven't set out any sort of coherent theory of their case. There's no coherent theory of malice here. According to them this hardworking family man went down to the oceanfront and just inexplicably, randomly, indiscriminately opened fired on a stranger. It doesn't make any sense. Self-defense is the only motive that makes any sense in this case; but the Commonwealth's not even concerned at this point with -- with coming up with a theory of the case that makes sense. The Commonwealth -- they're savvy. They're seasoned prosecutors. After we watched that video, that should put the end to any inquiry as to whether there was malice or not in this case. There's clearly not malice. This is clearly not a second-degree murder. So why did they charge him with second-degree murder when it's obvious? On the issue of malice, it's not even close; so why did they charge him with second-degree murder? Because they're counting on you as good and reasonable people to compromise as good and reasonable people do. They're counting on you finding him guilty of the lesser offense, the manslaughter. It is pure gamesmanship on their part. Don't fall for it. Yeah, there's no malice in this case. It's obvious there's no malice. It's not a second-degree murder case, but it's also not a manslaughter case. This is a self-defense case.

 

[THE DEFENDANT] acted lawfully in self-defense that night in two different ways; to defend himself and to defend his brother. The Commonwealth doesn't care about the truth in this case. We know that based on the witnesses they put forward. They care about one thing. Convicting [THE DEFENDANT]. That is their single-minded focus. To them he's another file to close, another notch to put up on the belt. That's all he is. You can't let them do that. You can't let them do that at the expense of [THE DEFENDANT], and you can't let them do that at the expense of justice. I would hope that we all agree. I'm sure that everybody agrees that any man who's charged with a criminal offense deserves a thorough and competent investigation of the evidence against him. Has [THE DEFENDANT] received that? Absolutely not. We heard yesterday from the forensic technician. By the way, I have no idea what the point of that testimony was for the entire hour. I mean there was nothing relevant whatsoever to what you're going to have to decide today. But there was one little gem in there. They did a primer residue test on two people, [PROSECUTION WITNESS 4] and [PROSECUTION WITNESS 5]. You heard the forensic tech say, Well, the purpose of this test is to determine whether or not somebody has handled a firearm recently. Well, [DETECTIVE 1] talked to [THE DEFENDANT] back in August, early August, August 2nd of 2011; and at that point he told her, I saw a guy with a gun. I saw a guy -- what I thought was a guy with a gun. I thought I saw a brown handle. The Commonwealth on their cross-examination says, A brown handle could look like a black man's hand, right? [THE DEFENDANT] said, No, incorrect; and I hope you all know that's ridiculous. But in any event, getting back to it. He told [DETECTIVE 1], I saw a man with a gun that night. What I thought I saw was a man with a gun. I saw a brown handle. So isn't the obvious next step to take as a part of a thorough and competent investigation to send the primer results? The forensic tech already took them. All you have to do is send them up to the lab to get analyzed, and they just sit on it indefinitely. It's in a box somewhere in the Virginia Beach Detective Bureau. That's not a thorough and competent investigation. And you know what? I don't think [DETECTIVE 1] is incompetent. You saw how she presented herself, and she's a veteran detective. She knows what she's doing, and we heard that it was her decision to make. And you know well the Commonwealth. If they said get it done, it would be done. They don't want to risk screwing up their case. Once [THE DEFENDANT] made the statement to [DETECTIVE 1] that he was the shooter, as far as they were concerned, We're going to close this file. We're not going to risk screwing this thing up. We're not going to send this test up to confirm or deny whether somebody had a gun that night. He deserves better, and you should absolutely hold that against them in your evaluation of the evidence in this case.

 

The only evidence -- the only eyewitnesses to the actual shooting that they've offered -- Wow. In the opening statement from the Commonwealth, they describe small inconsistencies. Where was the aggressive demeanor that was demonstrated on cross-examination yesterday towards [THE DEFENDANT] with relation to those witnesses? Where was the passion from the Commonwealth when it came to those witnesses? Their stories were ridiculous. The Commonwealth hasn't thoroughly evaluated these witnesses or maybe they've just got their blinders on and the only thing they can see is evidence that proves conviction and everything else is to the periphery. They can't see it. They're just going to cherry-pick anything that supports conviction and cast aside anything else. But he deserves to have the testimony of every single one of those witnesses closely scrutinized. They haven't done it. The detective bureau didn't do it, so we're counting on you to do it. And before you go back into the deliberation room, I'd like to talk about those witnesses. The next one who testified was [PROSECUTION WITNESS 2]. Now, [PROSECUTION WITNESS 2] says when the prosecution questions him, Oh, well, you know, I had two to four drinks. I was a little intoxicated. A couple of witnesses later we hear [PROSECUTION WITNESS 6]. [PROSECUTION WITNESS 2] was the drunkest one in the group. He was so drunk in fact that I felt like I needed to stay close to supervise him, and basically chaperone him. He was more or less falling down drunk; so I don't know to what extent, if any, [PROSECUTION WITNESS 2]'s testimony is worth anything. But to the extent that it is, again it corroborates [THE DEFENDANT]'s version of events. The important thing [PROSECUTION WITNESS 2] said was -- And he agreed. He tried to weasel out of some things on the direct examination, but he admitted it on the cross-examination. Yeah, I told [DETECTIVE 1] my sense was that these other guys -- they didn't really want to fight. They were just kind of mouthing off. He admitted that it was someone from his group that threw the first punch. He admitted that it was five guys from his group that he saw throwing punches. He admitted that [THE DEFENDANT] was uninvolved in the argument preceding it and the fight itself. He admitted that [THE DEFENDANT] shot in the air, and he admitted that [THE DEFENDANT] was running away as he fired the last shot; so what we get from [PROSECUTION WITNESS 2] is, Yeah, I can corroborate what [THE DEFENDANT] says is the truth, and I was stinking drunk.

 

The second witness was [PROSECUTION WITNESS 4]. [PROSECUTION WITNESS 4] may have set some sort of world record for the worst witness in history. When [PROSECUTION WITNESS 4] is questioned by [DETECTIVE 2] twice on the night that this occurred, he describes a mysterious white sedan with black males, and it's more or less a drive-by shooting. Then four days later when he's talking to [DETECTIVE 1] -- and this is the same story he told on his direct examination today -- Well, forget about the white sedan. I don't remember that. This is what actually happened. After he was shot, I ran around the corner, and that's when a mystery man jumped me, and he held a gun to my head, but he didn't say anything, and he did it for about five seconds, and then he ran away, and then I ran back to the scene. His story was insulting. He ought to be ashamed to come into this courtroom with this man's freedom on the line and to testify to that. Here's some food for thought. [PROSECUTION WITNESS 4] clearly lied. It's obvious he's a liar. Why do people lie? They lie because they want to conceal something. They're lying because they feel guilty about something. So what does [PROSECUTION WITNESS 4] feel guilty about? Well, in his statement to [DETECTIVE 1], isn't it convenient that that story would account for him being gone from the crime scene immediately after the shooting for about a minute? That's how long he said it took. It was about a minute, and it would also account for the presence of a gun if the detectives were ever to find one. It was the mystery man's gun. The mystery gunman that held a gun to my head. Again, just something to consider, food for thought.

 

The third witness that the Commonwealth presented was [PROSECUTION WITNESS 6]. Now, [PROSECUTION WITNESS 6] couldn't even keep a story straight for two or three minutes. On the direct examination he says, Yeah, I had two brandy and Cokes at the hotel. He said it crystal clear. I know you heard it too. And then five minutes later when I'm questioning him, Well, it was definitely less than five. Then he admits he also had two vodka drinks once he was out at LunaSea; so we know that [PROSECUTION WITNESS 6] by his own estimate had at least six mixed drinks that night, which I think it's safe to assume is a low-ball estimate. These guys were drinking hard that night. Take a look at [THE DECEDENT]'s toxicology report. His urine sample was .26. The legal limit is .08. He was over three times the legal limit, and all these guys were drinking together. And [PROSECUTION WITNESS 6] says, Well, we were fighting against four or five guys, when the prosecution is questioning him. Then when I questioned him, it became five or six guys. I don't know. Maybe he was so drunk that he was seeing double or triple, and that's how many guys he saw. The evidence is pretty clear it was two guys, two eighteen-year-olds getting beat up by a belligerent drunken mob of twenty-something-year-old guys.

 

Now, let me move on to -- to [PROSECUTION WITNESS 5]. He was the first witness yesterday. And [PROSECUTION WITNESS 5]'s another interesting witness. [PROSECUTION WITNESS 5] describes five different people attacking him. Blows are raining down on him from five different people, and then it's either [PROSECUTION WITNESS 4] or [PROSECUTION WITNESS 7] -- he can't remember which, but there's three more guys attacking him; so there's eight total guys, and they're just under attack. But then he makes an interesting statement and says, Well, you know actually it all happened really fast. I didn't really start to remember it until two or three weeks later. He would be some sort of an interesting psychological experiment. It's interesting. I've never heard of somebody who recovers memories -- whose memory improves two to three weeks later to better remember events from when he's drunk. And then he tells the biggest whopper. Well, yeah, it was two to three weeks later that I started to realize maybe things weren't exactly as I described; so I -- you know, I contacted [DETECTIVE 1], and we had a face-to-face meeting. He was very clear about that. We had a face-to-face meeting, and it was two or three weeks later. You heard from [DETECTIVE 1]. She has no record whatsoever of meeting with [PROSECUTION WITNESS 5] two to three weeks after the event. She had no note of it. And she -- I wasn't real impressed by the fact that she acted a little weaselly there in saying, Well, I don't have a record of it. I can't recall it. It would be malpractice if a detective interviewed a witness and didn't make a single note of it. She didn't interview him. The interview never happened. [PROSECUTION WITNESS 5] lied. It was a bald-face lie that he told you on the stand. So again I ask you, why does somebody lie? What are they trying to hide? Why does he feel guilty? These guys had a year and a half to talk amongst each other and get their stories straight, and it's so pathetic. They can't even come close.

 

The last witness who testified was [PROSECUTION WITNESS 3]. [PROSECUTION WITNESS 3] says, Well, yeah, again I had about four drinks. A little drunk. Then we hear from [DETECTIVE 3]. [DETECTIVE 3] testifies he talked to [PROSECUTION WITNESS 3] at the hospital. This was hours later. Hours after they had left Luna Sea. Hours after he supposedly had his last drink; and [DETECTIVE 3] says, Well, my observation was that he was clearly drunk. He reeked of alcohol. But to the extent that [PROSECUTION WITNESS 3]'s testimony is worth anything, again it only corroborates [THE DEFENDANT]'s version of events. He says the shooter was totally uninvolved in the argument. He's totally uninvolved in the fight. Of course he describes a man with shoulder-length dreads who's firing the gun. You'll see a surveillance photo. [THE DEFENDANT] looked hairstylewise the same way on that day that he does today. You can see that from the 7-Eleven video. These are the five witnesses. These are the only five witnesses that have been presented to you that were eyewitnesses to the shooting. Beyond a reasonable doubt is the highest standard in any courtroom in this country. It is the gold standard. Beyond a reasonable doubt is based on cold, hard, consistent, irrefutable facts. It's not based on testimony of five guys who were all stinking drunk.

 

The Commonwealth really has to be desperate to rely on those five guys, but consider this: There are several other factors that I would ask you to take into consideration that I really think demonstrate the true desperation on this side because they know the facts don't support what they're asking for. What was the purpose of the autopsy photos that they've admitted into evidence? Why did they put these images onto this big board, and why did they lead with that in their closing? I told you at the beginning the cause of death wasn't contested. We all knew that it was a single bullet wound to the chest. We all knew that [THE DEFENDANT] had fired the gun. None of that was in dispute. What they did was a cheap tactic. They don't want you to look at these facts rationally. They want you deciding this case emotionally. That's why they showed the photos of [THE DECEDENT]. That's why they showed the photos of [THE DECEDENT] being autopsied. It had nothing to do with what you have to decide in this trial. They're trying to hoodwink you, and it was a classless move.

 

Second thing that I'd ask that you take into consideration that I think exposes the desperation on this side is the forensic technician -- and this was sort of a running theme throughout their case. Well, this is not CSI. You can't expect forensic evidence. He put up an hour long direct examination that was utterly pointless. I mean I don't know about you. I was bored to tears. There wasn't a single thing that was presented, other than primer tests which supports the defense case, that was worth anything. It was an effort to make it look like, We do have forensic evidence. We have something stronger. I'd ask you to take into consideration statements that were made in the opening that this was -- quote, This was an act of chivalry. Wow. Well, we heard the testimony of the girls. The girls didn't even really know these guys that well. The girls said, We don't want you to fight. The girls said, Keep moving. Everybody agreed they couldn't even understand what this guy had said. The word that was used throughout everybody's testimony was, He said something; and then [FEMALE WITNESS 1] said later, Well, it was something about the way she looked, although she admitted that that was her first time coming up with that in a year and a half immediately after. When she was interviewed, she didn't say anything about that. She said he mumbled something. So even though they didn't hear what this guy said, even though the girls all confirmed, We weren't offended by anything that he did, these guys all stopped, and somebody in their group decided to sucker punch somebody and to engage in a mob assault. To try and dress that up as some sort of a romantic gesture is pathetic.

 

The last thing that I would ask that you take into consideration -- And again it's been a running theme throughout the Commonwealth's case, and they pounded on it just now. It was in their opening. It was throughout the trial. It's in the closing. This is a fistfight. A fight? Two on two is a fight. Three on three is a fight. A fight by definition involves willing participants. This was at least five on two. At least. Some estimates had it as, Well, I think it was seven guys. Some people had said seven or eight. It sounds like there were seven guys on the other side that night all in their twenties beating up two eighteen-year-olds, two teenagers. That's not a fight. Let's stop calling it a fight. I can think of some more appropriate terms. How about mob beating? How about mob assault? Let's dispel the notion right here and now that this is a fistfight. It was a beating.

 

You know the Commonwealth -- The gist of the cross-examination yesterday -- and it was sort of suggested again in the closing -- is, Well, you know, he could have run away. He could have run away and just left his brother to the wolves. Couldn't you just have walked away? Your brother's being beaten up by at least five people. He should have just walked away. Just leave. Boy, I'm glad I don't have a brother that thinks that way. I'll take a brother who thinks like [THE DEFENDANT] any day. When [THE DEFENDANT] used force, he was 100 percent justified in doing so. You don't have to wait until your brother has his brains beaten in. You don't have to wait until somebody draws a gun on you and shoots you before you have the right to use force. Look at the self-defense jury instructions. When you reasonably fear, you have the right to act, and that's what he did. And again he didn't have the benefit of hours or days, as we've had, to listen to everybody and to pour over all of the evidence. He had milliseconds. He had to make an instant decision.

 

The one thing that [THE DEFENDANT] did in his testimony yesterday, and he did it also in the interview with [DETECTIVE 1], that candidly annoys me a little bit is he does try to make excuses for why he didn't come forward earlier. I understand why he did that. He was obviously scared; and then he said -- he said, I'm holding my baby thinking this is the last time I'm going to hold her. The Commonwealth says, Just call 1-800-Lock-U-Up. More like 1-800-Lock-Me-Up. Once he calls the police, he's going to jail. That's a tough thing to do. He should have done it. He should have called, and I'm not saying that he shouldn't have, but it's a tough step to take, and it doesn't mean he's guilty. It means the man was scared. He's never been in this sort of a predicament before. I have nothing but compassion for [THE DECEDENT]. More importantly than anything, I feel [THE DEFENDANT] has nothing but compassion for [THE DECEDENT]. You heard it in his statement to [DETECTIVE 1]. You see it in the note that he wrote, and you saw it in that moment when he's by himself with his head in his hands. He's not a malicious killer.

 

You know I think sometimes there's a natural reaction when somebody dies that you want to do something to make it right. You know something, anything to sort of restore some balance. But let me tell you there's no redemption. There's no justice in convicting this man who was confronted with a terrible nightmare scenario and did the best that he could when he had milliseconds to decide how to try to survive. I'm going to be done in just a few moments, and it's the last opportunity that I have to speak to you. You heard [the Judge] tell you the Commonwealth gets one more chance to talk with you to make a rebuttal as they call it. But just know just because they say it last doesn't make it so. I'm going to be itching I'm sure to jump up and say something. I can't. Just keep that in mind. You get the final word. They don't get the final word. Another thing that [the Judge] told you at the beginning of the trial and probably just now in the jury instructions is your verdict has to be unanimous. Every single one of you has to be of one mind. I think there's a way of putting that that makes it a little more meaningful. Each and every one of you is individually responsible for the outcome of this case. Each and every one of you is individually responsible for [THE DEFENDANT]. Each and every one of you is individually holding in your hands his freedom. Any single one of you -- any single one of you can stand up and say, No. I'm not going to convict a man who acted in self-defense that night. You saw in his video interrogation that [THE DEFENDANT] indicated -- and it's in his handwritten letter as well -- that he says, I sinned by killing a man; and that's -- that's his belief, and it's his belief that some day he'll have to answer to a higher authority for that. But as far as the laws of the Commonwealth of Virginia are concerned, he has violated no law. He's an honest, hardworking family man who was thrust into a situation not of his choosing. He was uninvolved in the argument, uninvolved in the fight. Saw his brother getting beaten, and he did the best that he could. When he saw that man and he thought that he had saw a gun, he was justified in using force. I'm asking that you find him not guilty. Thank you for your attention. Thank you for your service.