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Thread: What constitutes "serious or grave" bodily injury

  1. #1
    Regular Member SouthernBoy's Avatar
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    According to a well known attorney in California who has been involved in hundreds of cases where deadly force was used, he gives the following examples of having fear of serious/grave bodily harm.

    • Suffering broken bones.
    • Wounds requiring sutures.
    • Suffering injuries which will result in disfigurement.
    • Resulting prolonged or reoccurring unconsciousness .

    Certainly there are more, but these are the ones I heard him mention. Some may argue about the broken bones ("You killed him and all you received was your arm in a sling?"), or perhaps about sutures ("Bid deal.. you got 10 stitches and he got the death penalty from you."). But those who might pose such questions weren't there. Suppose your broken arm was the result of your assailant wielding a baseball bat at you? Or your stitches came from a pair of scissors he grabbed from a drawer along the way?

    Comments/additions anyone?



    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

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    Regular Member buster81's Avatar
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    How would that people that say "You killed him and all you received was your arm in a sling?", know what would have happened had you not defended yourself?

    You could have been the one dead.

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    Regular Member SouthernBoy's Avatar
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    buster81 wrote:
    How would that people that say "You killed him and all you received was your arm in a sling?", know what would have happened had you not defended yourself?

    You could have been the one dead.
    Exactly.

    People (juries) often play armchair quarterback and try to second guess someone's actions who has been through something like this. No one really knows what it's like to go through such an ordeal unless they have been through a similar situation already.

    What I found interesting was the attorney's answer regarding broken bones and sutures. We do tend to think of injuries such as these as being relatively benign. But as I said, if the attacker was using something like a baseball bat, severe injury or death could easily result in a solid hit in the head with such a weapon.

    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

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    How about: "He got the death penalty because you didn't want PAIN inflicted by him"? "Yessir. I have the right to STOP pain or its onset".

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    TheMrMitch wrote:
    How about: "He got the death penalty because you didn't want PAIN inflicted by him"? "Yessir. I have the right to STOP pain or its onset".
    I agree with TheMrMitch,

    If someone is gonna get in my space/safety zone, then their gonna have to accept my judgement. Very little debate will transpire during the time I have assessed a threat, and acted in defense..

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    Campaign Veteran skidmark's Avatar
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    Here is how one state Supreme Court has answered the question:


    Fear Alone is not Enough



    Commonwealth v. Sands, 262 Va. 724, 553 S.E.2d 733 (2001).

    "The principles governing a plea of self-defense are well-established. Self-defense is an affirmative defense to a charge of murder, and in making such a plea, a "defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors." McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). The "bare fear" of serious bodily injury, or even death, however well- grounded, will not justify the taking of human life. Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887, 900 (1874). "There must [also] be some overt act indicative of imminent danger at the time." Vlastaris v. Commonwealth, 164 Va. 647, 652, 178 S.E. 775, 776 (1935). See also Yarborough v. Commonwealth, 217 Va. 971, 975, 234 S.E.2d 286, 290 (1977); Mercer v. Commonwealth, 150 Va. 588, 597, 142 S.E. 369, 371 (1928). In other words, a defendant "must wait till some overt act is done[,] . . . till the danger becomes imminent." Vlastaris, 164 Va. at 652, 178 S.E. at 777. In the context of a self-defense plea, "imminent danger" is defined as "[a]n immediate, real threat to one's safety . . . ." Black's Law Dictionary 399 (7th ed. 1999). "There must be . . . some act menacing present peril . . . [and] [t]he act . . . must be of such a character as to afford a reasonable ground for believing there is a design . . . to do some serious bodily harm, and imminent danger of carrying such design into immediate execution." Byrd v. Commonwealth, 89 Va. 536, 539, 16 S.E. 727, 729 (1893).
    In holding that the trial court erroneously refused to instruct the jury on self-defense, the Court of Appeals construed the term "imminent" to mean something less than "immediate." Sands, 33 Va. App. at 678, 536 S.E.2d at 465 (quoting Sam v. Commonwealth, 13 Va. App. 312, 325, 411 S.E.2d 832, 839 (1991)). Applying its view of that term, the Court of Appeals concluded that, "[u]nder the facts of this case, the fact finder could reasonably have concluded that [the defendant] was without fault in beginning the altercation, reasonably apprehended she was in imminent danger of death or serious bodily harm and, thus, was justified in shooting her husband to prevent him from killing her or further inflicting serious bodily harm upon her." Sands, 33 Va. App. at 679, 536 S.E.2d at 465.
    We agree that the defendant reasonably believed that she was in danger of serious bodily harm or death. Nevertheless, that reasonable belief is not dispositive of the issue before us in this appeal. The question here is whether the circumstances immediately surrounding the killing, specifically, the actions of the defendant's husband at that time, were sufficient to create a reasonable belief of an imminent danger which had to be met. The Court of Appeals did not squarely address this requirement of an overt act.
    Even when viewed in the light most favorable to the defendant, the evidence fails to reveal any overt act by her husband that presented an imminent danger at the time of the shooting. The last episode between the defendant and her husband occurred after the defendant telephoned Shelton. Then, sufficient time elapsed for Shelton to arrive at the couple's home, and for the defendant to view the extent of her injuries while in the bathroom with Shelton, walk from the bathroom to the living room door, turn around and proceed back into the kitchen, retrieve a gun from a cabinet, and walk back into the bedroom where her husband was reclining on the bed, watching television. At that moment, the only reaction by the defendant's husband was his question, "What are you doing[?]" While we do not doubt the defendant's genuine fear for her life or minimize the atrocities inflicted upon her, we cannot point to any evidence of an overt act indicating imminent danger (emphasis added), or indeed any act at all by her husband, when she shot him five times while he reclined on the bed. Nor did the Court of Appeals cite to any such evidence. Thus, the defendant was not entitled to an instruction on self-defense. The requirement of an overt act indicative of imminent danger ensures that the most extreme recourse, the killing of another human being, will be used only in situations of necessity. "The plea of self-defense is a plea of necessity and the necessity must be shown to exist or there must be shown such reasonable apprehension of the immediate danger, by some overt act, as to amount to the creation of necessity." Vlastaris, 164 Va. at 651, 178 S.E. at 776.
    CONCLUSION
    For these reasons, we will reverse the judgment of the Court of Appeals and enter final judgment reinstating the convictions. Reversed and final judgment."

    http://www.virginia1774.org/Page6.html

    Seems they are saying that not only must there be "[t]he requirement of an overt act indicative of imminent danger [which] ensures that the most extreme recourse, the killing of another human being, will be used only in situations of necessity" but that you are going to have to show that other reasonable persons who found themselves in that same situation would also believe that right then at that moment they had no reason to believe that any lesser injury might befall them.

    Add to that the following decision:


    Disparity of Force not a Defense by Itself
    Andre Barbosa v. Commonwealth Va. App. (2002 Unpublished)


    "...Thus, . . . [one] who expects to be attacked should first employ the means in his power to avert the necessity of self-defence, and, until he has done this, his right of self-defence does not arise." Hash v. Commonwealth, 88 Va. 172, 192, 13 S.E. 398, 405 (1891). "The 'bare fear' of serious bodily injury, or even death, however well-grounded, will not justify the taking of human life."



    "...Under these facts, we hold, therefore, that it was not "necessary" for Barbosa to use deadly force to avert the perceived impending "gang beating." The fact that he was surrounded by Serna and his friends and that Serna "bumped into his gun," stating he was not afraid, does not constitute an "overt act indicative of imminent danger." See Vlastaris v. Commonwealth, 164 Va. 647, 651-52, 178 S.E. 775, 776-77 (1935) (holding that accused's fear for his life was without foundation because victim made no overt act at the time of the shooting). "

    as opposed to:



    No Duty to Retreat When Doing a Lawful Act and Suddenly Attacked

    Decarlos Coleman v. Commonwealth, Va. App. (2002 Unpublished)

    "Appellant next contends the trial court erred in refusing to instruct the jury on self-defense. We disagree.
    "Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt." Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978); Yarborough v. Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977)). "[A] person assaulted while in the discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all the force he deems necessary, and is not compelled to retreat from his assailant, but may, in turn, become the assailant, inflicting bodily wounds until his person is out of danger." Dodson v. Commonwealth, 159 Va. 976, 979, 167 S.E. 260, 260 (1933) (quoting Jackson's Case, 96 Va. 107, 30 S.E. 452 (1898))."

    See Also : Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546 (1998).
    which makes it hard to decide what to do, no matter what the situation or circumstances.




    Seems that if you are sucessful in defending yourself you are almost certainly going to be judged. The problem seems to be that the rules for judging you may in fact be so hard to abide by that youcould lose even though you were sure you had no other choice but to use lethal force or die.




    Which brings me to the best advice I ever got for free: ask cops who they want to hire if they ever get charged with shooting somebody. That lawyer willbe picked because the cops hate him/her fortheir track recordof getting defendants off.




    stay safe.




    skidmark
    * tried to get rid of underlining - but you see I failed. Ignore underlining.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    That says to me not to attack or kill someone I think will harm or kill me unless I'm actually being attacked. Makes sense.

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    Campaign Veteran skidmark's Avatar
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    TheMrMitch wrote:
    That says to me not to attack or kill someone I think will harm or kill me unless I'm actually being attacked. Makes sense.
    1) The affrimative defense of either justifiable or excusable homicide is based on our conclusion that the only way to stop the attack was to use lethal force. It then is our job to convince a jury of reasonable persons that our action was reasonable in those circumstances.

    2) It's not about being harmed - it's about suffering death or "serious bodily injury".

    3) If I wait until the actual blow is struck, it's too late in most cases. The point is for me toconclude that the attack is imminent and that if it were carried to completion I would suffer death or serious bodily injury. Therefore, I defend against the attack. Then I have to prove beyond a reasonable doubt that if it were carried to completion I would suffer death or serious bodily injury.

    Another way of looking at this is to say that situational awareness failed as I had no way to avoid/escape the attack and thus was reduced to defending against it. Then, after admitting that I intentionally murdered the person attacking me, I prove beyond a reasonable doubt that doing so was either justified or excusable.

    As I see it, the great majority of us will go through life never having to worry about this except as an intellectual exercise. The few who will have to make the decision to employ lethal force to stop an attack will not have the lucury of time to consider the circumstances intellectually, but will react as they have trained. Then, if sucessful, they will watch as a jury decides if their reaction was justified or excusable.

    Force-on-force training is a good way to play out various possibilities and then review the responses to see if you can eliminate any reasonable doubt about your reaction being the only way to avoid death or serious bodily injury.

    stay safe.

    skidmark
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

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    There could also be other factors as to a quick response with deadly force that a would be attacker may be totally unaware of

    #1 Bad guy walks up to you in a parking lot and demands your car keys.

    seems like anyone could avoid a confrontation here right, just hand the fella your keys, let him drive off then call 911

    NO, you put a tennisball sized hole right where his shirt pocket used to be, and explain to the courts that you life maintaining meds. were in the front seat, your whole savings of $3000,00 dollars was locked in the console for christmas shopping and groceries, Yourback seat was currently being occupied by a child in a car seat, my wife was already in the car and buckled in..There's lots of variables that would cause a bad guy to wonder why he never got another syllable across his/her lips before the big flash..

    I'm not arguing with you Skid, I understand the facts you've explained, but the bad guy don't know me, and had better render me unconscious beforeI know he/she is even close..

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    2 words: "Bush Doctrine".

    We need to fight the criminals where they live, so we don't have to fight them where we live



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