Most Read
Image 01 Image 02 Image 03

How the Michigan Porch Shooting case may be defended

How the Michigan Porch Shooting case may be defended

Could there be evidence of “accident”?

On December 18 a pre-trial hearing was held in the shooting case of Renisha McBride in Detroit.

The purpose of the hearing was to determine whether the second degree murder charge against the defendant, Theodore Wafer, ought to be dismissed or whether there existed sufficient grounds to bind Wafer over for trial.

The judge ruled the matter was to go to trial.

Legal Insurrection previously posted on the Wafer/McBride case here: Analysis: Self-Defense Claim May be Legally Weak in Michigan Porch Shooting. As the title of the piece suggests, the evidence as then available seemed inadequate to support much of a claim of self-defense.

In the course of the pre-trial hearing, however, the defense team called to the stand a crime scene reconstruction and firearms expert witness, David Balash. In the course of his testimony under defense questioning facts began to emerge that seem likely to form the structure of the team’s legal defense.

Some of the forensic evidence remains in dispute, but for the purposes of this discussion I’ll make several likely presumptions.

One of these is that Wafer was standing inside his home, looking through the closed (and perhaps locked) screen door, and McBride was on the other side of the door standing on the rather small front porch, so within two to three feet of the screen door. Finally, that the shotgun round that struck and killed McBride was fired through the screening of the door.

When police arrived on the scene in response to Wafer’s 911 call, they found the screen, and its associated frame, had been knocked lose from the screen door proper, and noted the hole in the screen through which the fatal shot had likely been fired. Prior to taking crime scene photos, they replaced the screen in its proper position in the door, the position in which they assumed the screen was placed when pierced by the shot.

Expert witness Balash, however, noted that this placed the height of the hole at an unlikely height, given other known facts. It seems clear, for example, that Wafer is several inches taller than McBride. Further, the exterior porch is an additional six inches lower than the interior floor on which Wafer was standing.

With the screen in its proper position, and the hole at that now elevated height, a trajectory line drawn from McBride’s head (the point of impact) through the hole in the screen would require that Wafer had been holding the Mossberg 500 shotgun above shoulder level and angled steeply downward.

Having handled and fired similar pistol-gripped shotguns on many occasions, I can attest that the normal “comfort zone” for holding such weapon ranges between the waist and the shoulder. Raising the rear-most “grip” hand well above shoulder level would be a most unusual way to fire the gun, unless one needed to fire over some sort of hard cover.

Given these facts, and presumptions, what might be a narrative of events more consistent with self-defense?

The following is, of course, merely speculation for the purposes of exploring the possible.

Imagine Wafer hears a 4AM banging on his door. He retrieves his home defense shotgun, and proceeds to his wooden front door. With the pistol-grip and short barrel of the Mossberg 500 he would be right up on the screen door the moment the wooden front door has opened. He’s holding the shotgun such that the rear-ward gripping hand is close to his body arm pit level. He reaches out with his left hand and opens the wooden door.

Meanwhile, in the course of McBride banging on the outer screen door, she has already managed to knock the screen and frame out of the door, and it now hangs much lower in the frame than would normally be the case. She continues pounding, relentlessly, and is still pounding when the interior wooden door opens.

Just as Wafer opens the front door enough to peer outside, McBride once again brings her fist down on the screen — this fist now, of course, traveling in a direct path towards the just awakened and already frightened Wafer. Seeing this object coming towards him, his body tightens in an instinctual defensive motion—including his right hand, and the finger around the trigger. The gun fires, the shot tears a hole in the fallen screen, and McBride is struck and killed.

Such a scenario would be consistent with Wafer’s initial statements that the shooting was an “accident,” while also leaving space for a claim of self-defense — that is, that a reasonable and prudent person in Wafer’s position, under the same or similar circumstances, would have perceived the approaching fist as an imminent threat of death or grave bodily harm. Indeed, under Michigan law, an attempt to breach his home would create a legal presumption that this fear was reasonable.

The forensic evidence needs considerably more development before a truly confident prediction can be made of its ability to support a self-defense claim. Frustratingly, much of the defense questioning of Balash “dead-ended” because certain Medical Examiner documents, on which Balash based his conclusions, had not yet been admitted into evidence (and the ME was not immediately available to take the stand, as needed to have them admitted).

Nevertheless, the defense’s questioning of Balash suggested the first possibly reasonable narrative of self-defense yet to emerge from the case.

[NOTE: Images of trial postings from the live blog of the Detroit Free Press have been removed at their request.]


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, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

I did photos on a couple crime scenes while in the Corps. Apparently we even get better training on crime scene discipline than cops do. Don’t touch anything until after the medical examiner arrives and move nothing without first taking a photo.
First establishing shots.Then the body from all angles. 360 from near the body. Full sweep of scene from each corner or equivalent spots. Anything of interest to investigator BEFORE and after it’s moved.
Take the last shot and get the H out before I contaminate the scene. (Stomach was fine till then.)

BannedbytheGuardian | December 29, 2013 at 5:27 pm

why was a wild black woman attacking homes at 3 am in a higher socio economic zone than hers?

Were the reports of others fleeing valid or hearsay?

i would need to know more about what she was up to . i have heard about the car crash 2 hours earlier where she was not alone.

    BannedbytheGuardian in reply to BannedbytheGuardian. | December 29, 2013 at 6:27 pm

    To the downtickers. it was the testimonies of neighbours that got zmmerman offnot the shooting dynamics.

    i doubt the case will begin & end on the porch.

    “why was a wild black woman attacking homes at 3 am in a higher socio economic zone than hers?”

    The undisputed reports say she had an single-vehicle accident at 1 a.m. in the morning in a nearby Detroit neighborhood. She hit a parked vehicle, and when bystanders tried to help her, she wandered off. Hours later she showed up at the defendant’s house, where she was shot. The toxicology report shows her blood alcohol level was .20% at the time of her death. So it’s likely she was driving while highly intoxicated, had the accident and became disoriented. There’s still no accounting for the hours between her accident and her death.

    The part of Dearborn Heights where the defendant lives is adjacent to Detroit. While it’s probably economically better off, it isn’t far removed from the Detroit neighborhood where the victim had her accident– it’s only two blocks from the Detroit city boundary, and only six blocks from where she had her accident. The real mystery is what happened to the victim for the missing hours, not that she wandered two blocks into Dearborn Heights.

      BannedbytheGuardian in reply to halflight. | December 29, 2013 at 9:08 pm

      Wild & inebriated black woman attacks house. I have seen the devolvement pics of Detroit but i am assured here are above average housing districts even in Detroit. Every little bit helps – a garden , a porch that isn’t dilapidated & with her street wisdom she would recognise this was not a cocaine or squattor house.

      Anyhow if I were her lawyer that would be my line of attack. i would be filming every street scape from her home to the accident to The Golden Porch from where she figured she could be saved. And with her undoubted ghetto social skills she proceeded to bash the place down.

      AS to shooting thru the door – bring on joe Biden as a witness. Being a Detroiter the shooter has got to have voted for him.

    “why was a wild black woman attacking homes at 3 am in a higher socio economic zone than hers? “

    Was this comment meant to be snarky? it’s in poor taste if that’s the case.

      BannedbytheGuardian is employing snark to imply that any of us who don’t wish Theodore Wafer executed street-side for his “obvious” racist murder of Renisha McBride are ourselves racists who wish dead on innocent young black women.

      That about right, BannedbytheGuardian?

      –Andrew, @LawSelfDefense

“Such a scenario would be consistent with Wafer’s initial statements that the shooting was an ‘accident,’ while also leaving space for a claim of self-defense — that is, that a reasonable and prudent person in Wafer’s position, under the same or similar circumstances, would have perceived the approaching fist as an imminent threat of death or grave bodily harm. Indeed, under Michigan law, an attempt to breach his home would create a legal presumption that this fear was reasonable.”

But would the jury think it was reasonable for a man, who is fearful enough to grab his shotgun, to immediately open his front door during the commotion? Would they believe it is reasonable for him to not attempt to look out a window (if one could gives a view of the front door) or to spy through the peephole (again if one was available), or to at least shout through the door to find out what’s going on? Would they also not assume that Wafer would have called the police prior to opening the door if he felt threatened? It seems a pretty desperate defense.

The prosecution seems likely to paint a picture of an angry, and not fearful, armed man looking for a fight, and nothing in the constructed scenario necessarily contradicts that picture.

This case still doesn’t look so great for the defense.

    JackRussellTerrierist in reply to Yukio Ngaby. | December 30, 2013 at 12:03 am

    The testimony of the witness makes sense. Facts are facts, and common sense is just what it is. Nobody holds a shotgun up over his or her shoulder to fire, especially when immediate action is needed.

    The defendant had no way to know that it was a wayward drunk on his porch breaking down his door. Blacks commit about 75% of all violent crime. That’s a pretty high score for such a small percentage of the population. And, as much as the media tries to hide this fact, people know it. Even the great Rev. Jesse Jackson has admitted he used to cross the street when he saw a group of blacks coming toward him. For all the defendant knew, this was just another case of blacks living up to their self-generated stereotype as violent savages and were out committing crime at 4am with him as the intended victim. Live by the crime, die by the crime.

    I see no need to politely inquire of some animal screaming and ripping my door off at 4am “What can I do for you, Ma’am?”

    As for calling the cops, they’re just minutes away when the threat is seconds away. Maybe they’ve got a slow or lousy department there. Maybe they’re useless, like so many cops are now. Maybe he knew that. Maybe they’re wonderful, but THEY weren’t there; HE was, and it was his home and his life on the line, so far as he knew. Maybe he heard the screen go down and figured they’d be inside in a few seconds.

    I say give him an award for getting another drunk driver off the road and ridding society of a selfish, undisciplined woman who, like so many blacks do, demand immediate gratification and service for their every little need because they can’t seem to ever fend for themselves or think of a rational solution to their own problems. They just act like savages, make demands, and become violent when they don’t get what they want right that instant. That comes from living in the moment and never developing foresight and understanding what “consequences” are.

    Likely scenario: As to what she was doing for those three hours after she damaged someone’s property (that they probably worked hard for) through her lack of discipline, judgment and not giving a damn about other lives or the property of others, probably hiding in the bushes or under someone’s car in a driveway or behind someone’s gate, watching until the cops left the scene of the accident which was obviously reported because of the residents’ statements they know what time it happened. That process could take quite awhile. The cops most likely towed her car, which would also take awhile. She then had nowhere to go, so she just decided to force her way into someone else’s home to take care of her worthless ass until she could get a ride. Maybe her cell phone was in the car, which would have been towed, so she felt somebody else should take on her problem and she had every right to be beating on someone’s door at 4am and yelling her head off. Getting no immediate response, she became angry and violent and ripped the door off. Typical.

    Occam’s Razor

      LOL.

      Oh, where to begin. How about: “Blacks commit about 75% of all violent crime.” Irrelevant. Even if McBride herself was personally responsible for 75% of all violent crime does not mean that a guy can blast her in the face with a shotgun while she’s banging on his front door.

      “For all the defendant knew, this was just another case of blacks living up to their self-generated stereotype as violent savages and were out committing crime at 4am with him as the intended victim. Live by the crime, die by the crime.”

      So basically you’re saying that it should be legal for non-black people to kill any black person for crimes that they believe a black person might commit based on their “violent savagery.” If I didn’t know better I’d think that you are a troll.

      I ask myself, why am I even arguing your points? They’re all bigoted, stupid and predicated by your obvious glee that a black woman was shotgunned in the face by a white man (“I say give him an award for getting another drunk driver off the road and ridding society of a selfish, undisciplined woman who, like so many blacks do, demand immediate gratification…). I’m not going to dignify the rest of your silly, racist rant by addressing it any detail.

      And boy oh boy, you sure do seem to love dead black people.

      But, oh wait that’s right– you’re a total racist. And this isn’t the first time you’ve expressed your racist b.s. on this site.

      Let’s all remember some your “best of” racist remarks from your previous comments: https://legalinsurrection.com/2013/07/in-busting-zimmerman-myths-jonathan-capehart-perpetuates-the-greatest-myth-of-all/?replytocom=442554#respond

      Little gems can be found there like:

      “The black kids are feral savages born of feral savages”

      “black women despise white woem because that’s what black men want, by and large. The fact that white women who succumb to such relationships have an extremely high likelihood of being murdered, severely beaten, living in poverty for the rest of their lives or struck down by AIDS doesn’t seem to slow miscegenation.”

      “If you don’t think black culture in America is a swirling cesspool of savage violence and immorality, fine. I do. If you think black culture’s bastardization of our language is a good thing and doesn’t contribute to their failures, fine. I don’t.”

      Nothing like some good ol’ fashioned racism harking back to the days when blacks and Jews could be zoned out of “restricted” neighborhoods.

      I would say that you’re an embarrassment to yourself, but what would be the point? However, you are an embarrassment to conservatives. You make us look very bad with your ignorant vitriol.

      Why don’t you head on over to Stormfront where you can hang around with more irrelevant white bigots like yourself and you can spew your racist nonsense there to a receptive audience.

      In the meantime, let the adults talk.

        JackRussellTerrierist in reply to Yukio Ngaby. | December 30, 2013 at 11:42 pm

        So, are you saying blacks don’t commit a level of violent crime wholly disproportionate to their representation in the population, and therefore other people (including other blacks) have no reason for heightened fear of a violent act when their door is being beaten in at 4am…..or what?

          Oh, I think I was pretty clear in my reply. I thought that when I said that your points were “all bigoted, stupid and predicated by your obvious glee that a black woman was shotgunned in the face by a white man” and then quoted you with an example of your vile joy and approval of a black girl being violently killed, that you would get the gist. But I guess I’ll have to spell it out again.

          I’m saying that you have repeatedly demonstrated through your comments that you are racist– not other people here. You– JackRussellTerrierist– specifically. Or perhaps you would prefer for me to say that you just like to say racist things behind a mask of pseudonym. LOL.

          Arguing with you is pointless because you have demonstrated that you cannot think clearly, impartially, nor maturely about any assault/crime– nor even common involved interaction (dating, marriage, having children, etc.)– involving a black person and a white person because of a bigotry that you have consistently demonstrated both in this comment section and in prior comments.

          LOL. Maybe you should hang out with Melissa Harris-Perry– you have such similar views in racial interactions and the mixing of races.

          JackRussellTerrierist in reply to JackRussellTerrierist. | January 1, 2014 at 2:00 pm

          You can badger and name-call all you like. You still haven’t addressed the issue of the miserably high level of violent crime committed by blacks and why it would be unreasonable for someone to fear for his life when (at least) one of them is breaking through his door at 4am.

          The rest of what you say is the usual libtard yada yada “You’re a racist” bullshit that the you lefties ALWAYS employ when you has no reasonable means through which you can explain away facts. Trying to make me the subject instead of this case is just a libtard’s red herring, and a very old, worn-out one at that.

          It’s clear that you’ve never worked in law enforcement and had to deal with blacks at the street or court level, nor had to deal with their victims and their families. In other words, you don’t know WTF you’re talking about, as usual.

    Yukio Ngaby writes: “This case still doesn’t look so great for the defense.”

    All good points, and exactly how I expect the state to seek to counter such a defense.

    In response the defense would hammer the “same and similar circumstances” facet that is incorporated into the reasonableness standard.

    “Detached reflection cannot be expected in the presence of an uplifted knife.”– Brown v. US, 256 U.S. 335 (1921)

    Clearly Wafer has not anything like the almost perfect self-defense narrative in the Zimmerman trial.

    –Andrew, @LawSelfDefense

      Yukio Ngaby in reply to Andrew Branca. | December 30, 2013 at 11:41 am

      Cut a plea deal? Obviously the answer would be based on current public info. Or would you put this case to a jury trial?

      I have zero idea how I would approch this if I were on the defense’s side.

    Topnife in reply to Yukio Ngaby. | December 31, 2013 at 2:25 pm

    I think the issue of “reasonable” that you argue the jury will invoke must be conditioned by the knowledge that Wafer was awakened at 0430, by at least some sort of commotion at his front door that may have initiated a strong fear response, added to a likely bewilderment and possibly a sense of outrage. Given these circumstances, to expect a careful and rational evaluation of the various response options (don’t open door, call 911, look out window) is itself not reasonable. Of course, it will be up to the defense to elaborate that point effectively.

    What I learn from this case is to take suitable precautions for my own security, and to have a pre-determined mindset, so that complex decision-making is not required at 0430.

Shaky ground indeed. A number of years ago, prior to both Heller and McDonald v Chicago, I was living in a town that banned the possession of firearms. I live in a six flat that turned condo. It’s a Friday night and i got off work at 11:30p and headed out to the bar. made it home around 2am fairly inebriated. The upstairs neighbor had a bone to pick about my leaving a ceiling fan running while i was away. (the guy had some mental health issues) Upon seeing my return he called over his whole family to pound on the front and back doors. There was some talk about kicking the door in… but no action. Luckily, the police arrived and dispersed folks about 10 minutes later.

Had i the right to defend myself at that time, I would not be justified in shooting someone going crazy on my porch. The immediacy of the situation is lacking. However, had they breached the door… that very well could have been an unforgiving lesson in Illinois’ use of deadly force law.

Well.

If the door was intact, as shown in the crime scene photos (er, crime scene reconstruction photos, perhaps), and was between the shooter and the deceased, as shown by the hole, then the deceased was outside the house, the shooter was inside the house, and a claim of defense seems thin.

But, if the door was in process of being disassembled or broken down just before the shooting, the picture for the defense is much rosier.

It makes all the difference between a lost and confused driver looking for directions or other help, and a criminal or destructively crazy person attempting, however ineptly, a home invasion.

    There’s no question that the screen was out of its proper place when police arrived–the lead investigator testified to this, and that he replaced the screen in its proper place for purposes of the crime scene photos, measuring height of the tear in the screen, etc.

    The question is whether the screen was knocked ajar by McBride’s banging on the door (therefore before the shotgun was fired) or by the shotgun blast.

    –Andrew, @LawSelfDefense

      jon_berzerk in reply to Andrew Branca. | December 30, 2013 at 7:09 pm

      One would expect that when a shot is through a screen it would be a roundish hole.This hole is oblong. By the length of the tear in the screen it appears the screen was falling towards the inside of the house when the shot was fired.This hole looks more like it has been slashed then shot.

        Nice observation.

        –Andrew, @LawSelfDefense

          I noticed the size and shape of the hole and wondered if it might not have been made by the muzzle of the shotgun prior to it having been fired, since apparently there’s no GSR or stippling on the screen around the hole.

          (Maybe he stumbled and the barrel poked through the screen)

          (Or perhaps the young lady had put her fist through it.)

          Assuming it the hole wasn’t already there before she ever showed up.

        jon_berzerk in reply to jon_berzerk. | December 31, 2013 at 9:01 am

        The other question would be was there any screen threads found in the wound or on the body?Did anyone look for it?

          Gremlin1974 in reply to jon_berzerk. | January 2, 2014 at 12:26 am

          Unitron, I can see where you might think that the barrel of the shotgun made that hole, but also remember that at that distance the shot would not have even had time to separate from the plastic container that it sets in that is ejected at he time of firing (sorry I just can’t remember what that thing is called right now). So that’s the reason you don’t see a larger hole in the screen.

          jon_berzerk, most likely we will just have to wait until the full ME report is available as evidence, since it sounds like it is mostly not logged in yet.

          Also, there is no telling if they will be able to tell if there are pieced of the screening in the wound or not, since the screen looks mostly intact.

        Gremlin1974 in reply to jon_berzerk. | January 2, 2014 at 12:30 am

        Which would also fit since like I said below it is unlikely that the plastic “wad” had even separated before the shot went through the screen, at that distance, in my completely unscientific and unverified opinion it would have acted more as a single large projectile than as a grouping of shot.

        Also, someone below stated that the screen tear looked like it was made by the barrel being pushed through the screen; counter point to that is if the woman was banging on the door and when homeowner opened the door the screen and a fist came flying at him. In that case it would be the screen being shoved over the barrel.

          unitron in reply to Gremlin1974. | January 2, 2014 at 9:12 am

          But if the muzzle was “indoors” at the time of the shot, and the shot passed through the screen, creating the hole, then shouldn’t there be some sort of gunpowder residue on the inside side of the hole in the screen?

          Gremlin1974 in reply to Gremlin1974. | January 3, 2014 at 2:15 pm

          Unitron, Yes, I would think there would be residue but that is a question that will have to be answered forensically.

I can understand banging the heck out of a door to get help after an accident. What is incomprehensible is the destruction of the outer door. I’d put it down to drunkenness.

    BannedbytheGuardian in reply to Juba Doobai!. | December 29, 2013 at 11:36 pm

    i don”t. Didn”t she have a cell phone?

    what teenage girl would not be on the phone calling everyone -it”s just finger touch on her contacts which would get someone.

    neven fat drunk girls can get their stubby fingers on to a name .

    JackRussellTerrierist in reply to Juba Doobai!. | December 30, 2013 at 12:16 am

    This happened three hours after her “accident”.

    Most likely her cell was in the car which would have been towed by the cops who responded to calls from the residents about the accident. Maybe the cops were too lazy to comb the area looking for the driver. An accident at that hour with a missing driver who was seen on foot and able to speak most always means a drunk was behind the wheel.

    She was a .20 over three hours she hit the parked car. She had to have been close to alcohol toxicity at that time. Alcohol levels that high can cause death. Thank God hitting an inanimate object was all the damage this one-woman wrecking crew was able to wreak on society that night, other than what is now being done to this poor defendant because of her gross negligence, both as a driver and as a human being.

      JackRussellTerrierist in reply to JackRussellTerrierist. | December 30, 2013 at 12:50 am

      A little more info: The cops didn’t show up at the scene of the negligence (“accident”) until later. It was a low priority call. So McBride may have been hiding and watching until the coast was clear for her to start looking for someone to take care of her and get her home. According to one of the residents where McBride hit the parked car, McBride’s words were, “I want to go home.”

      I’ll bet she did.

      Her family hired a lawyer just days after McBride was killed.

      http://www.cbsnews.com/news/renisha-mcbride-update-teen-had-218-blood-alcohol-content-when-she-was-shot-to-death-by-mich-homeowner/

      No information there about when she did the drinking. Maybe she started drinking after she crashed her car. There was certainly enough time for it. We can’t conclude on the basis of the story so far offered that she was intoxicated when she crashed.

        “We can’t conclude on the basis of the story so far offered that she was intoxicated when she crashed.”

        Yes, I imagine every cop responding to the scene of a car crash and finding an intoxicated driver hears some variation of that story. 🙂

        –Andrew, @LawSelfDefense

        MouseTheLuckyDog in reply to rantbot. | December 30, 2013 at 10:10 am

        If she didn’t drink between the time she crashed and theincvident that’s damming.

        If she did drink that’s damming too. Where did she get the liquor?
        A “hip flask”, what’s she doing with an open container in a car?
        A bottle or a six pack? She abandons the car but not the booze.
        A bar? Why is she knocking on a strangers door when she can get help at the bar?

        JackRussellTerrierist in reply to rantbot. | January 1, 2014 at 2:14 pm

        If she could get liquor somewhere after the accident she could also have used a phone to call someone to come get her……unless she broke into somebody else’s house and stole the booze.

        A theory that she hit a parked car while sober or relatively so, said to a witness who spoke with her that she wanted to go home, and then acquired some booze and drank it to the level she was at when hauled to the coroner’s is pretty irrational. There were witnesses to the accident who said she appeared to be drunk. If she wanted to go home, and could get somewhere to buy booze or any kind of store or open business, why would she not ask to use the phone to call for a ride? The only explanation that could support that is that she got the booze from somebody else wandering the street or broke in somewhere and stole it. Neither seems likely at all.

      “Most likely her cell was in the car which would have been towed by the cops who responded to calls from the residents about the accident.”

      The lead investigator testified at the hearing that he recovered McBride’s cell phone from her vehicle.

      –Andrew, @LawSelfDefense

    Hard to say without some knowledge of the condition of the door. It may have been ready to fall apart on its own. “Structural integrity” is not a phrase I usually expect to see in a sentence about screen doors.

    For that matter we don’t know that it was assembled properly in the first place. Some can be assembled with either end of the screen panel up, making it harder to know exactly where the hole was during the incident.

      “Hard to say without some knowledge of the condition of the door. It may have been ready to fall apart on its own. “Structural integrity” is not a phrase I usually expect to see in a sentence about screen doors.”

      Wow, speculate much?

      I’ve lived with screen doors on my homes all my life, and never had one spontaneously disassemble. There’s no evidence that Wafer’s house was in any way in disrepair.

      BTW, all the “hard to say” and “may have” and speculation only CONTRIBUTES to reasonable doubt.

      –Andrew, @LawSelfDefense

        Good for you. You’ve never seen one, therefore they can’t exist.

        Speculate much?

          Gremlin1974 in reply to rantbot. | January 2, 2014 at 12:42 am

          Actually, Andrew never said that he had “never seen one”. He said that he has always had screen doors and that they had never “spontaneously deconstructed”, I would be willing to bet that a man of Andrew’s age has seen a screen door is disrepair.

          Also, Andrew noted, to counter your completely speculative argument, that there is no evidence that the home was in any kind of disrepair. So since you seem to need a translation: the screen door was fine until acted upon by the deceased according to the evidence we have at this time.

          You tried and lost, the adolescent attempt to twist Andrew’s words because you lost is frankly just sad.

JackRussellTerrierist | December 30, 2013 at 12:21 am

I see the “Justice for Nisha” protest crowd is in full swing.

Prior to taking crime scene photos, they replaced the screen in its proper position in the door

Doesn’t say much for the professionalism of the investigators.

    Canusee in reply to Hockey Bum. | December 31, 2013 at 3:31 pm

    The only reason to put the door back up for photographs was to make sure this was a crime. The cops know better but chose, made a conscience decision to put the door back up and make sure the conversation stays framed at “he shot through the door”.

Interesting experience on a 911 call involving a prowler tonight at my mom’s house. (we were there having Sunday dinner- my niece calls us and says she saw a guy exiting gmas driveway.)

The 911 operator barrages my mom with questions of whether or not there is a gun or weapon present with us. We happened to have jumped into the car and headed down the long driveway to check the property line and local street for anyone- and they keep quizzing her.

This was before she said we were driving- Which could mean anything from – we were never at the property and we told by a neighbor via cell phone to – fleeing the property for our own safety to going out and doing a Zimmerman. Truth be told- we brought a camera to try and take a picture of anyone walking away.

I’m not up on whether I need to disclose 3rd hand to 911 operator whether I as a CCP am packing or not. To me the context of the question seemed obscure.

– Does my mom have a gun or weapon at her house?
– Does a trusted person at her house have a gun?
– Does she have means of protecting herself or are they probing for a Zimmerman?
– If we are driving- what is the context of the question for 911?

To me it felt more like they were probing for Zimmerman than being concerned with our safety.

This is in Washington state BTW

    unitron in reply to Andy. | December 30, 2013 at 11:49 pm

    Maybe the 911 operator wanted to be sure the cops didn’t show up and encounter a weapon they didn’t expect to encounter, which could lead to an unfortunate misunderstanding on their part or hers or both.

Can we leave aside the casual and ugly racist stereotypes of the victim and talk about something else?

THIS is why, if you own weapons, you try to think out in advance what your plan will be in various “threat” scenarios. So that you’re not completely playing it by ear in an adrenalin-soaked sleep-fogged middle-of-the-night moment.

I have plans for what I’ll do in the case that I wake up in the middle of the night smelling smoke, so that hopefully I don’t fall into a blind panic and end up doing something fatally stupid, but instead give myself the best chance of coming out of it with as little damage to my person and property as possible.

Likewise I have plans for what I’ll do in the case that I wake up in the middle of the night hearing someone pounding wildly on my front door, or back door, or sliding glass doors, or breaking through a window, or already having made entry, walking around in my house.

It’s kind of too late for Mr Wafer, but reading the last chapter of Mr Branca’s book might have saved him a world of pain.

    Amy in FL: “It’s kind of too late for Mr Wafer, but reading the last chapter of Mr Branca’s book might have saved him a world of pain.”

    I have a collection of letters I’ve received over the last 16 years from people in prisons around the country who express exactly that sentiment: “If I’d read your book before, I wouldn’t be here now.”

    Sad, really.

    –Andrew, @LawSelfDefense

    Gremlin1974 in reply to Amy in FL. | January 2, 2014 at 12:47 am

    Great post, I would also add that not only should you plan these scenario’s and routes but practice them as well. That cool holster you got to keep you gun in on the side of the mattress may seem like the best thing since the Colt Army, however, in the middle of the night finding that cool holster in a fog of sleep, in messed up sheets and blankets and the beginnings of an adrenal surge is a completely different animal.

“To me it felt more like they were probing for Zimmerman than being concerned with our safety.”

To give the dispatcher the benefit of the doubt, she may have been trying to determine if the responding officers were likely to arrive on the scene of an armed homeowner.

–Andrew, @LawSelfDefense

Andrew:

Did Mr. Wafer use the term accident to mean the accidental discharge of a firearm?

If not, does his attorney have room to argue that he used the word accident in a broader and more colloquial sense? Perhaps it was his way of saying he had no mens rea?

Do the facts permit defense counsel to argue along those lines?

I have zero legal skills, but considerable substance abuse experience.

Re: alcohol levels. Assuming normal liver functioning and other such variables, the body metabolizes about .02 per hour, that is, if the victim was .20 at time of death, and assuming she drank nothing more after her auto accident three hours previous, she would have been blowing approximately .26 at the time of the auto accident. That is very drunk: passed out for most, knee-walking drunk for many, and even fifth-of-whiskey-per-day alcoholics will be quite drunk at .26. Tolerance due to chronic drinking only extends so far.

For the average, not-an-alcoholic, recreational drinker, coma is induced at .30 or more, while death by overdose generally begins at .40. A BAC of .20 or .26 is very, very drunk.

All this to point out that it might be a fool’s errand to try and determine logically what she was doing for three hours between auto accident and shooting incident. Wandering in circles in a stupor, passed out in the bushes, hiding from police due to accident, etc., etc. There’s very little definitely on or off the menu of choices when you’re that drunk.

That she was able to ambulate enough to locate her car, start it, and drive it long enough to get into an accident while blowing somewhere between .20 and .26 can be taken clinically (if not legally) as evidence of tolerance of alcohol, meaning evidence of a history of alcohol abuse. It takes a lot of abusive-level drinking to be able to tolerate that much alcohol without passing out.

    How quick can you go up to .20 from nada? Presume empty stomach and hitting straight shots?

    If it was ingested after the accident and on the way up, I would think organs would have the rest queued up. Reasonable presumption that processing stops at TOD.

      Henry Hawkins in reply to Andy. | December 30, 2013 at 5:21 pm

      Again, with generally typical liver function, etc., your BAC goes up approximately .02 for every 6% ‘full’ beer (some states have 3.2% beer) or its equivalent in wine (about 6-8 oz depending on proof), or liquor (about 1-1.5 oz depending on proof).

      She could have gone from .00 to .20 in the three hours between her auto accident and her death, but she’d have to be guzzling high-proof stuff. Plus, during three hours of drinking, about .06 would have been metabolized out. So, generally, assuming yada yada, she’d have to drink the equivalent of 16-18 oz of liquor to go from .00 to .20 in three hours. A fifth* of whiskey is about 25 oz.

      *This thing happened in Detroit, across the river from Canada, and there is a difference between an American fifth and a Canadian (Imperial) fifth.

    If we speculate that McBride knew she was intoxicated when she crashed, then she likely left the scene to conceal her state from any responding police. She turned up at Wafer’s house 3 hours later.

    It has been my observation (as a physician) that intoxicated persons who “sleep it off” usually awaken with a substantial residual BAL, but due to the rebound stimulation of alcohol withdrawl associated with a falling BAL, they believe that they are no longer drunk.

    Thus, about 3 hours later, still intoxicated but now agitated, it might be plausible that a person would attack somebody’s screen door in such a way as to at least appear threatening.

    Gremlin1974 in reply to Henry Hawkins. | January 2, 2014 at 12:53 am

    As a Nurse I can tell you that at .18 to .20 is when we begin to think of it as a “medically significant level”. Now read that at Alcohol Poisoning if you want, but yes that is a very high level that could already be causing some significant issues. It is also far higher a level than a person of her age should ever have had.

    I would also be interested to see the fill tox screen. If she was on any other kind of medication it could have reacted with the booze. (Before I get flamed, I am not suggesting that she was taking anything else, I am just pointing out the possibility and that even valid prescription drugs react funny with booze.)

amatuerwrangler | December 30, 2013 at 11:12 pm

Based on my experience, HH is right on regarding the decay of the BA over time. This woman was young, so it is reasonable to assume a properly functioning liver.

Not mentioned, but relevant, is the alcohol concentration of her stomach contents; this would come from the autopsy. The body’s metabolism of the alcohol will not result in a reduction of the BA level until equilibrium was reached. Until then the BA would rise, even though actual consumption had ceased. This is where the nature and amount of food consumed comes into play.

Re. crime scene: assuming the front door was solid, did the shooter have a means of observing what was happening on the porch without opening the door. He could have been prepared to aid someone in need, and armed just in case, but could not know if this was so without opening the door. The knocking on the door, through the screen, could have been interpreted as an assault or even a move to grab at the gun barrel. The demonstrated angle of the shotgun is not inconsistent with what would result if someone was withdrawing it to keep it out of someone’s reach.

Accident happens when the gun discharges when the person holding it doesn’t wish it to. One is still responsible, but the intent is very important.

Remember that this happened in Detroit, MI. Due to its financial woes police services are reduced and it is well documented that field response times are extremely high. I recall seeing articles placing it in the half-hour range. Calling 911 first would not have changed things a lot.

    “Remember that this happened in Detroit, MI.”

    Just to be picky, it happened next door to Detroit in Dearborn Heights, although I expect they aren’t exactly rolling in greenbacks these days either.

      Henry Hawkins in reply to unitron. | December 31, 2013 at 12:22 am

      I meant only to point out the proximity to Canada and imperial measurements. I’m a Detroit native.

      amatuerwrangler in reply to unitron. | December 31, 2013 at 12:42 am

      I stand corrected.
      Greenbacks or not, a lot can happen during that period when the caller is playing “Twenty Questions” with the dispatcher to when they get the call out to the field and someone drives to the location… The best you could ever expect is a response time of about 5 minutes; that is typically measured from the time the call is taken in to the arrival of the first officers, some measure it from the time first broadcast on the radio net. In either case you had better be prepared to handle things on your own for a while. Remember, Lee Harvey Oswald was killed with an officer at each elbow; nearly instant response was not enough.

Andrew, what are the lesser included offenses in Michigan? With what we know now, without too much speculation, the homeowner is not likely to get off without a conviction of some kind of offense.

If you take Mr. Wafer at his word, so near in time to the offense, it was “an accident.” In my state, there is still grounds for punishment of someone who accidentally kills another, such as involuntary manslaughter.

Going back to the photo of Wafer’s house, at the Daily Mail and the first post here, one can see that the front door is hinged on the left as viewed from the outside. The screen door is missing in the photo, and it is unclear to me so far, just where the hole in the screen was, relative to the positioning of the screen door. The stairs rise to the porch from the left. If the screen door was hinged to the left and opening outward, it would be awkward to make entry; the door was likely hinged on the right. The hole appears to be in the lower corner of the upper panel, probably nearest the stairs. If McBride was standing one or two steps below the landing, on the stairs, the location of the rent in the screen would be consistent with the shot striking her head.
We need a lot more info (e.g., blood spatter, location of recovered shot).

Another anomaly is the irregular and long tear in the screen, which seems inconsistent with a shotgun blast at short range.

    Gremlin1974 in reply to Topnife. | January 2, 2014 at 1:02 am

    Just a thought as well, those screens are typically square, which means can be put back in the door with any edge at the top and even possibly backwards, how does the cop know that he got the proper edge at the top?

    As far as the irregular and long tear in the screen see my post above but it could be that the deceased pushed the screen onto the shotgun while banging on the door, since her hand would have traveled further into the home after the door was opened. Also if the screen was falling between the end of the barrel and the deceased the “shot” would most likely not had time to separate from the “wad” at that distance it would have basically been a solid projectile flying through the screen. (At least it would seem so to me.

    I was shooting my home defense shotty at targets 2 to 8 feet away a few weeks back and basically until it got out past 3 to 4 feet all I was getting was a big hole in the target where the shot was still in the wad and hadn’t spread at all.

Font Resize
Contrast Mode
Send this to a friend