You are on my jury - part deux!

In My Humble Opinion
1

Hypothetical client (HC) is charged with the following:

Aggravated malicious wounding of a law enforcement officer - 20 to life

Various misdemeanor charges for obstruction…

Basic agreed upon facts:

HC is passed out sleeping on a bike trail near a darkened road. His body is near the curb. A sheriff’s deputy is dispatched, and finds HC client. He is initially worried HC is dead, and he will not be going home from his shift any time soon. As the deputy approaches, he sees HC is sleeping, curled in the fetal position, with ear buds in his ears (the long white iphone type ear phones).

Deputy’s version of next events:

Deputy rouses HC after several attempts. HC stands, but is unsteady on his feet, with a strong odor of alcohol emanating from his person. Deputy asks for ID, and if the HC has been drinking. HC responds that he has no ID, and had consumed 12 beers earlier in the day. Deputy asks where HC lives, and HC gives conflicting answers. Deputy begins to remove cuffs, and begins to explain to HC that he is under arrest for being drunk in public. HC sees Deputy pulling out cuffs, lowers his shoulders, and charges the Deputy. The two go to the ground and begin wrestling. During the struggle, HC strikes Deputy multiple times, and attempts to remove his asp. Deputy is able to spray HC with pepper spray, to no avail. Deputy’s radio is also jostled to the point that it switches channels so his calls for help go unheeded. HC is able to get free from Deputy and flees to the woods, where he hides in a shed.

HC’s version of next events:

HC awakens to a deep sharp pain in his ribs. He stands, but is unsteady due to pain. He remembers answering the Deputy’s questions, and the Deputy walking him to the cruiser. He remembers putting his hands on the back of the cruiser. As the Deputy grabbed one wrist to put him in cuffs, HC experienced searing pain in his side, and turned and screamed, “why are you doing this?” HC began to turn towards the Deputy, and was sprayed with pepper spray. HC began flailing and pulling away, eventually getting away from the Deputy and running and hiding in a shed. HC is adamant that they never went to the ground.

Further agreed upon facts:

HC is found in a shed, and is identified by other deputies because they can see the ear bud cords which are still in his ears. HC client is “retrieved” by a K9 officer, and is brought to the hospital.

HC has multiple injuries, including broken ribs and severe lacerations on his arm from the K9. He has to be transferred to another hospital to make sure his broken ribs have not punctured his lungs.

Deputy has what he believes to be minor injuries initially. He has a small scratch/abrasion on his lip. His wrist hurts. And his back hurts. He goes to urgent care a few days later and is determined to have a fracture in his wrist. He continues to go to a back and neck doctor for pain.

Deputy is a veteran and will not be rattled by cross-examination. He will come off as defensive, but probably credible.

HC will testify earnestly, and will likely not be rattled by cross-examination. He does have a prior felony fraud conviction. There will be a jury instruction that indicates the jury can take into consideration his prior as making him not credible.

Jury instructions:

To find the Defendant guilty of Aggravated Malicious Wounding, the Commonwealth must prove the following:

  1. That HC wounded or caused bodily injury by any means of Deputy
  2. That such wounding or bodily injury was with the intent to maim, disfigure, disable or kill the Deputy
  3. That the act was done with malice
  4. That as a result of the act, the Deputy was severely injured and was caused to suffer permanent and significant physical impairement.

If you find that the HC did 1, 2 and 4… but not with malice (3)… you should find him guilty of unlawful wounding

If you find that the HC did not cause severe injury or permanent and significant physical impairment… you should find him guilty of assault and battery

Malice Defined - malice is that state of mind which results in the intentional doing of a wrongful act to another without legal justification at a time when the mind of the actor is under the control of reason, and can result from anger, hatred or revenge. Heat of passion excludes malice when it arises from provocation that reasonably produces and emotional state (to include terror or fear) determined from the circumstances as they appeared to the HC, but those circumstances must be such as would have aroused heat of passion in a reasonable person.

Voluntary Intoxication is not a defense to one’s actions in Virginia

There is no standard jury instruction for what constitutes significant physical impairment. Case law has stated that cosmetic disfigurement caused by visible scars on the face do meet the requirement for significant and permanent injury. Case law would not support a fractured wrist as meeting this criteria.

What say you, Dopers???

Prosecutor has offered the client plea to a malicious wounding and attempt to disarm. Guidelines 1yr9mos - 4yr9mos. Client will have been in custody a year by the time we go to trial. If HC is found guilty of the aggravated malicious wounding, a jury sentence will start at 20 years.

2

Meant to include, the only difference between the aggravated malicious wounding, and standard malicious wounding is the significant and permanent impairment. Or, basically, how bad the injury is…

3

HC is guilty of assault and battery. Prosecutor is also guilty of over-charging but I am probably way more sympathetic to defendants than most Virginia juries.

4

Been a long time since I’ve thought about Virginia criminal law…
Is “bodily injury” defined? That is, does the bodily injury have to be of the type that would “maim, disfigure, disable or kill” (or that might result from an intent to do those things). Or is that limited to the intent element?

5

Agree on the A & B charge. The rest falls apart just based on the two stories. There is no malice and no “intent to maim…”

Probably over-charged to get a stiffer plea bargain.

6

I don’t see anything but a misdemeanor for public drunkenness. There was no malice or intent to wound, or intent to obstruct. I’d need to know more about Virginia’s laws on voluntary intoxication to go further than that. The LEO can deal with the state to get compensation for his injuries, he’s not getting anything from the drunk anyway.

7

There is no standard jury instruction on what constitutes bodily injury. Again, a scar on the face or body would meet that criteria traditionally. All of those cases included scarring caused by a bladed instrument, and required stitches. Although a traditional weapon is not required.

8

Guilty of Assault and Battery.

If his BAC was measured when he was arrested, and it was over the legal limit, also guilty of being drunk in public.

Also guilty of obstruction no matter what his BAC, but that sentence can run concurrently with the conviction for A&B.

Regards,
Shodan

9

Hypothetical client was asleep, not bothering anyone. I’d want to know why he wasn’t left alone.

10

Appears to be A&B at worst, even if the cop’s account is fully accurate, by my reading.

11

I’d prefer that my local bike trails didn’t have speed bumps. YMMV.

Regards,
Shodan

12

Ok.

I’m another assault and battery vote. As I understand the concept, “wounding” contemplates the intent to inflict a permanent injury (such as a disfiguring scar). Certainly the language in the intent section of the statute would tend to imply that. So, for me, that’s where this falls apart.

You may or may not have “bodily injury” (depending on whether we read the term to require an injury of the type that the intent contemplates). I think you likely have malice. I just don’t think you can make out an intent to inflict permanent injury.

(I would tend to discredit the testimony of someone who was severely intoxicated at the time and, as a practical matter, many juries seem to credit police officer testimony more than civilian–especially defendant–testimony. So my opinion is based on crediting the deputy’s testimony).

I’d say almost certainly also guilty of drunk in public, resisting arrest, and probably attempt to disarm.

13

I think the Deputy could reasonably say he was asleep close enough to the road… in the dark, near a blind curve, that he’d be negligent in his duty to not at least get the Defendant to move. He was in danger of being hit by a car.

14

Are there herds of Cleopatras running rampant in Virginia? Why was the deputy armed with an asp?

15

2 and 3 rely on intent. Given the nature of the injuries and the intoxicated state of the defendant there is unlikely to have been any intent other than to avert further pain. Hence no conviction can reasonably be supported.

Also if a judge gave an instruction like that, or made so much as a mention of any previous convictions i would automatically vote not guilty just to spite the bastard.

Seems to me like the cop picked a right with a sleeping man then lost.

16

OK, out of concern for his well being I can see asking him to relocate. But cuffing him seems excessive.

17

:smiley: I think they also call it a billy club

Omar Little, can you tell me why a conviction on Agg. Mal. Wound? This is a win big or lose big case. Why do I lose big to you?

18

I think my strongest piece of evidence is that HC’s earbuds where still securely in his ears when he fled and was detained. No way they would be if he and Deputy went hands on, rolling on the ground in a fight. I don’t like that the Deputy’s version of events includes my client lowering his shoulders and charging him. That gets close to intent.

I think the most difficult bit to overcome is how HC’s ribs were broken. I don’t think I can convince 12 people that the Deputy walked up and kicked HC hard enough to break his ribs just to wake him up. More likely the ribs were injured in the scuffle.

Tell me what I’m missing…

19

I agree with this.

20

I totally agree with the first 3 sentences.

I don’t see the judge’s instruction as out of order and, really, I support the A&B verdict based on the officer’s testimony, so it doesn’t affect the verdict.

I wouldn’t describe cuffing someone as picking a fight and both stories say that’s when whatever happened to the cop happened.

If there’s a law against being drunk in public and he’s drunk in public then he’s breaking the law. I have no problem with the arrest.