Law of Self Defense Question of the Week
USA – -(Ammoland.com)- This week’s Law of Self Defense: Question of the Week comes from, I’m afraid, from just about everybody:
What’ the heck happened with the verdict in the Michael Dunn “loud music” murder trial?
Because I can’t really credit any single person with this one, I’ll be donating this week’s free copy of “The Law of Self Defense, 2nd Edition,” to the non-profit women’s self-defense organization Arming Women Against Rape and Endangerment. (Though I doubt anybody at AWARE would recall, when I was a much younger man I did a bit of volunteer firearms training for them–they’re an entirely volunteer organization. They’re good folks. )
The Five Indictment Charges Against Michael Dunn, And Lessers
Michael Dunn, I’m sure we all know, is the defendant in the “loud music” shooting death of 17-year-old Jordan Davis.
He was indicted on five distinct charges:
- A single charge of first-degree murder for the shooting death of Davis (FL §782.04)
- Three counts of attempted murder in the first degree for shooting at the three other passengers in the SUV: Tommy Storns, Kevin Thompson, and Leland Brunson (FL §782.04)
- A single count of “hurling missiles” into an occupied vehicle (FL §790.19)
In addition to these five indicted charges, there were numerous other criminal statutes implicitly at play.
First, there were the automatically lesser included charges for the murder and attempted murder offenses. With a lesser included charge a jury can essentially conclude that the State failed to prove the indicted charge beyond a reasonable doubt, but it did manage to include the next less serious version of that charge.
In the case of attempted first degree murder the lesser included charge was attempted second degree murder (FL §782.04.
There was no lesser included charge for the “throwing missiles” offense.
Also implicitly at play was Florida’s “10-20-Life” statute (FL §775.087), made infamous by the Marissa Alexander case. Under this law the use of a gun in an underlying felony results in a mandatory minimum sentence of 20 years if the gun is discharged, and 25 years to life if the gun is used to kill someone.
The Legal Defense of Self-Defense
Dunn’s legal defense to these charges was, of course, self-defense. That is, he had committed the acts of which he was accused, but he was lawfully justified in doing so because he was acting in necessary self-defense. The technical elements of Dunn’s self-defense are found among several Florida statutes, including FL §776.012 and FL §776.013, among others. It is best understood through Florida’s self-defense jury instruction, 3.6(f) Justifiable Use of Deadly Force.
Self-Defense: The Burden of Production & The Burden of Persuasion
We’re all familiar with the phrase “the burden of proof,” if only through courtroom dramas in popular media. In fact, the burden of proof consists of two distinct elements: the burden of production and the burden of persuasion.
A major function of any court is to control what legal arguments and evidence will be allowed before the jury, and to exclude those that are not deemed relevant. The burden of ensuring there is sufficient evidence to allow a particular legal argument into court is called the burden of production, and it falls upon whichever party wants to introduce that particular argument. In the case of self-defense, the burden of production falls on the defense. They are permitted to rely on evidence produced by the state to meet their burden, but meet it they must, or the jury will not be permitted to consider self-defense in their deliberations.
In the Michael Dunn case, there was literally zero evidence in the record of self-defense until Dunn himself took the stand. Indeed, that’s why he had to take the stand. Had he not, the jury would not have been instructed on self-defense. The moment he took the stand and uttered the words “self-defense,” he’d met his burden—it doesn’t take much to meet, but it takes more than zero.
Of course, the price he paid for meeting his burden in this way was to be subject to cross-examination by the State.
Once the defendant has met his burden of production and gotten the defense of self-defense properly admitted into the trial, the burden of proof shifts—the second half, the burden of persuasion is upon the State. This means that the responsibility for convincing the jury on that argument is upon the State, not the defense. This effectively means that the State must disprove self-defense—and they must do so beyond a reasonable doubt.
As a consequence, if the jury is left with a reasonable doubt that the defendant acted in self-defense, they are to give the benefit of the doubt to the defendant and acquit him of the charges based on that defensive use of force.
(Forty-nine states follow the same self-defense burden of proof paradigm as Florida. In Ohio, however, the burden of persuasion remains on the defendant, who must prove self-defense by a preponderance of the evidence.)
Micheal Dunn’s Use of Force: Three Bursts of Fire
It’s widely known that Dunn fired 10 rounds at the red SUV in which the four young men were riding, 9 of which struck the vehicle. Less widely known is that these were fired in three distinct groups.
The first group consisted of three rounds, all of which penetrated Jordan Davis’ door, and struck him.
One round struck his right leg, another his left leg, causing serious but non-life-threatening wounds. Another round would prove to be the fatal bullet, entering his right side, piercing the diaphragm, the right lung, the liver, the aorta, the left lung, and ending around his left armpit (the yellow line marks the wound channel, from lower-left to upper-right).
The second group of rounds were four in number, with three of these striking the door of Kevin Thompson (the resting place of the fourth round is unknown). These struck the vehicle at a considerable angle as the SUV was backing up, and although they managed to penetrate the outer surface of the door they were not able to pass through the inner surface and enter the passenger compartment. No injuries resulted form these rounds.
The third group of rounds were three in number, all of which struck the rear of the SUV as it drove away. One entered the right-rear window of the SUV, travelled the length of the passenger compartment at head-height, and struck the inside left edge of the driver’s sun visor and windshield. No injuries resulted from these rounds. Dunn was to testify on direct that he fired these rounds to ensure that the purportedly armed people in the SUV kept their heads down and did not “fire blind” back towards him and his fiancé, Rhonda Rouer.
You can hear the sequence and tempo of rounds in this audio clip, starting at the 00:30 mark:
From a shooter’s perspective, it is notable how rapidly Dunn fired each group, and with what accuracy and precision. He is clearly not a novice to his Taurus 9mm pistol.
For the purposes of our discussion, and given the rapidity of fire of each group, it is most useful to consider each of the three groups as a distinct use of deadly force.
Aligning the Charges to the Individual Acts of Deadly Force
The first group of shots was clearly the group Dunn fired at Davis, killing him. This use of force would underpin the first charge of first degree murder.
The second group of shots struck Kevin Thompson’s door, but did not penetrate the passenger compartment. Dunn claimed on the stand that these rounds were, in fact, also intended to strike Davis’ door, he simply hadn’t observed the SUV moving backwards as he fired. If this is not believed, these rounds could have been the basis for the charge of attempted first degree murder of Thompson. For purposes of our analysis, however, we can essentially ignore this group.
The third group of shots were fired at the retreating SUV more generally, with one traversing the length of the SUV at head height. This is more than sufficient to support the three charges of attempted first degree murder.
Any one of the three groups would also be sufficient to support the “hurling missiles” charge.
Understanding the Jury’s Conclusions: Throwing Missiles
The jury found Dunn guilty of the charge of throwing missiles. This was perhaps the easiest of the three charges to prove beyond a reasonable doubt.
More importantly, however, it tells us that the jury had discarded Dunn’s claim of self-defense for at least one of the three groups of fire. If they believed self-defense applied to all three, they would have been obliged to acquit him on the missile charge, as well.
Conviction of this charge, a second degree felony, carries with it a maximum sentence of 15 years.
Understanding the Jury’s Conclusions: Attempted Murder
The jury also found Dunn guilty of all three counts of attempted murder, albeit in the second degree (a lesser included offense of the indictment charge of attempted murder in the first degree).
Because Dunn used a gun in the performance of these felonies, he also exposed himself to the sentencing enhancements of the “10-20-Life” statute. Each of these guilty verdicts carries with it a mandatory minimum of 20 years.
The norm in Florida is that convictions resulting from charges all on a single indictment are served concurrently, which would lead him with a total sentence of 20 years. Judge Healey has a reputation for being a book thrower, however, and the ultimate decision of how the sentences should run is at the discretion of the sentencing judge.
In addition, there is some case law in Florida suggesting that sentences under “10-20-Life” must be run consecutively in order to meet the clear intent of the Legislature in passing mandatory minimum sentencing.
In either case, if run consecutively these attempted murder convictions would obviously yield a 60-year sentence—effectively a life-sentence for the almost 50-year-old Dunn.
Understanding the Jury’s Conclusions: Hung on Murder
That brings us to the first-degree murder charge for the shooting death of Jordan Davis. Here the jury was unable to come to a unanimous verdict, and so they were a hung jury on this count.
There are two rational means by which the jury could have found itself hung: they could have been unable to agree on the specific degree of Dunn’s intent in killing Davis, or they could have been unable to agree on whether he had acted in self-defense in firing those first three rounds.
In the first case there would have been some jurors who believed Dunn had been proven guilty beyond a reasonable doubt of either Murder 1 or one of the other lesser included charges, and other jurors who agreed he was guilty but only of a different one of the killing charges. So, for example, some believed it was Murder 1, others Murder 2, and the two could not meet.
I consider this unlikely. In my experience when jurors disagree on the degree of an issue, rather than on a fundamental principle, after four days of deliberations one or the other agrees to compromise. In my hypothetical, the juror(s) who believed in Murder 1 would like have compromised to a Murder 2 conviction.
More likely in my opinion is that the jurors disagreed not on degree, but on principle. That is, some jurors believed that Dunn had been proven guilty on one of the killing charges, but at least one juror (and it would take only one) believed that the State had failed to disprove self-defense beyond a reasonable doubt for those first three fired shots.
In this scenario, jurors are disagreeing not just on how guilty Dunn is, but on whether he is guilty of the charge at all. And on such terrain compromise would be far more difficult to achieve—and apparently in this case impossible.
Re-Trial on the Murder Charge Anticipated
State Attorney Angela Corey (of Zimmerman trial fame) was adamant in her post-verdict press conference that she would be re-trying Dunn on the hung murder charge, as is her privilege. Should he be re-tried, I would expect a guilty verdict on at least second degree murder, for reasons that go beyond the scope of this Question of the Week.
Ok, that’s probably enough for this week’s question of the week. This week’s “winner”, Arming Women Against Rape and Endangerment, will get their complimentary autographed copy of “The Law of Self Defense, 2nd Edition” sent out to them tomorrow.
If you’d like to submit your own Question of the Week, and become eligible to win a free book or hat, simply submit your question at Ask Andrew at the Law of Self Defense web site., to my Twitter account at @LawSelfDefense (no “of”).Stay safe! -Andrew,[email protected]
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (where a custom autograph can be specified, great for gift purchases!), Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.
In addition to the book, Andrew also conducts Law of Self Defense Seminars all around the country. Seminars for 2014 are currently being scheduled, if you’d like to see one held in your area fill out the comment box on the LOSD Seminar review page, where you can also see reviews of recently completed seminars in New Hampshire, Maine, Texas, Massachusetts, Ohio, Virginia, Florida, South Carolina, Georgia, and elsewhere.
Andrew is also a contributing author on self defense law topics to Combat Handguns, Ammoland.com, Legal Insurrection, and others.