Results 1 to 7 of 7

Thread: When a DVP Isn't Enough

  1. #1
    State Researcher
    Join Date
    Jan 2007
    Location
    Lebanon, VA
    Posts
    676

    Post imported post

    Link to story.

    To summarize the facts available at this hour: Mr. Johnson apparently broke into his ex-girlfriend's (?) home around 6 AM Saturday, August 1, 2009, and physically stuck her in the head. This woman had obtained a domestic violence petition (DVP) that legally prohibits him from having any contact with or being within a certain physical proximity of her for a fixed period of time, which he violated. At some point, a third person (whose identity and relationship with the other parties we do not know at this time) shot Mr. Johnson. Mr. Johnson will face a felony charge of burglary and misdemeanor charges of domestic battery and violating a DVP once he is released from the hospital.

    Until all the facts are in, I would be hesitant to draw a firm conclusion. However, everything available at this point in time indicates that this was a proper self-defense/defense of others shooting covered by not only the general law of self-defense but the Castle Doctrine.

    I'll edit this post and/or comment more later.

    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

  2. #2
    Founder's Club Member
    Join Date
    Nov 2006
    Location
    Fairfax Co., VA
    Posts
    18,766

    Post imported post

    WVCDL wrote:
    SNIP However, everything available at this point in time indicates that this was a proper self-defense/defense of others shooting covered by not only the general law of self-defense but the Castle Doctrine.
    I'm not an attorney, but I'm darned if I can find all the elements of justified lethal force in the articles. I'm not speaking to Castle Doctrine. Just the "general law on self-defense."

    I didn't see any informationabout the elements of AOJ. Although, maybe we can find the beginnings of "ability" in the blow to the woman's head if the shooter was defending her. Then again, if just smacked the back of her head with an open palm...we just don't have enough to characterize that blow.

    Do you have more information that is not in the news report?

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  3. #3
    State Researcher
    Join Date
    Jan 2007
    Location
    Lebanon, VA
    Posts
    676

    Post imported post

    It's late--and I'm still mentally recouperating from taking the bar exam last Tuesday & Wednesday. As I mentioned above, I'm operating on a news report based on partial facts; I have no other knowledge of this case so far. However, here's the relevant law in West Virginia:

    Use of Deadly Force -- General Rule:

    When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.
    Syllabus Point 7, State v. Cain, 20 W.Va. 679 (1882).

    Defense of Others:
    To establish the doctrine of defense of another in a homicide prosecution, a defendant must show by sufficient evidence that he or she used reasonable force in a situation where the defendant had a reasonable belief of the lawfulness of his or her intervention on behalf of another person who was in imminent danger of death or serious bodily harm from which such person could save himself/herself only by using force, including deadly force, against his or her assailant, but was unable to do so.
    Syllabus Point 3, State v. Cook, 204 W.Va. 591, 515 S.E.2d 127 (1999).


    The burden of proof placed upon a defendant asserting the doctrine of defense of another is not a high standard. To properly assert the defense of another doctrine, a defendant must introduce "sufficient" evidence of the defense in order to shift the burden to the State to prove beyond a reasonable doubt that the defendant did not act in defense of another.
    Syllabus Point 4, State v. Cook, 204 W.Va. 591, 515 S.E.2d 127 (1999).

    Castle Doctrine:

    The occupant of a dwelling is not limited in using deadly force against an unlawful intruder to the situation where the occupant is threatened with serious bodily injury or death, but he may use deadly force if the unlawful intruder threatens imminent physical violence or the commission of a felony and the occupant reasonably believes deadly force is necessary.
    Syllabus Point 2, State v. W. J. B., 166 W.Va. 602, 276 S.E.2d 550 (1981).


    The reasonableness of the occupant's belief and actions in using deadly force must be judged in the light of the circumstances in which he acted at the time and is not measured by subsequently developed facts.
    Syllabus Point 3, State v. W. J. B., 166 W.Va. 602, 276 S.E.2d 550 (1981).


    A man attacked in his own home by an intruder may invoke the law of self-defense without retreating.
    Syllabus Point 4, State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935).


    Burden of Proof on State:
    Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense.
    Syllabus Point 2, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978).


    Once the defendant meets his initial burden of producing some evidence of self-defense, the State is required to disprove the defense of self-defense beyond a reasonable doubt.
    Syllabus Point 6, State v. McKinney, 178 W.Va. 200, 358 S.E.2d 596 (1987).


    Relevance of Prior Acts of Violence:
    Where a defendant has asserted a plea of self-defense, evidence showing that the decedent had previously abused or threatened the life of the defendant is relevant evidence of the defendant's state of mind at the time deadly force was used. In determining whether the circumstances formed a reasonable basis for the defendant to believe that he or she was at imminent risk of serious bodily injury or death at the hands of the decedent, the inquiry is two-fold. First, the defendant's belief must be subjectively reasonable, which is to say that the defendant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the defendant's belief must be objectively reasonable when considering all of the circumstances surrounding the defendant's use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), is expressly overruled.
    Syllabus Point 3, State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009), slip opinion available at
    http://www.state.wv.us/wvsca/docs/Spring09/34268.htm.

    I will likely comment further when more complete information is available.
    Last edited by JimMullinsWVCDL; 03-31-2011 at 09:16 PM.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

  4. #4
    Regular Member
    Join Date
    Feb 2009
    Location
    , ,
    Posts
    21

    Post imported post

    For what it's worth, I got a bit of the inside scoop on this one. I've met Johnson on a few occasions and know a couple of his friends. He seemed like a nice enough guy to me, but has a pretty bad rap. Story is, his girlfriend and mother of his kid called him up and said something was wrong with the child. When he got there, another male friend of her's was waiting with a gun. Johnson is also said to carry a firearm on a regular basis, so this story would seem to have at least some merit, since he was shot and no other injuries were reported from the other parties involved.

  5. #5
    Regular Member
    Join Date
    Sep 2006
    Location
    Cherry Tree (Indiana County), Pennsylvania, USA
    Posts
    1,155

    Post imported post

    Doesn't matter if she called him or not. If he knew she had a DVP prohibiting him to get anywhere within so many feet of her, then shame on him for violating the DVP.

  6. #6
    Regular Member
    Join Date
    Feb 2009
    Location
    , ,
    Posts
    21

    Post imported post

    I don't mean to sound like I'm taking up for him. I'm really not. I agree he should not have showed up. I was simply pointing out that she is not just an innocent victim, according to his story.

  7. #7
    Regular Member
    Join Date
    Aug 2009
    Location
    , ,
    Posts
    2

    Post imported post

    If someone had a DVP against them and they broke into my home with the intent of doing bodily injury I would have to put a 40cal. 155gr. HP right between their dumba__ head. Case closed

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •