After four days of trial testimony, and with at most two defense witnesses yet to testify, there exists a distinct possibility that the defense has failed to meet its burden of production on self-defense. If so, the jury will not be instructed to consider self-defense as a possible legal justification for the shooting death of Jordan Davis. If if THAT is so, a murder conviction would appear utterly unavoidable.
Many people are not aware that a person has no automatic right to claim self-defense at trial. One has to qualify to have the jury instructed to consider self-defense as a justification for an otherwise criminal act. And that qualification is met through the defendant meeting his burden of production–ensuring that there is at least some evidence in the record, however controverted, that supports a claim of self-defense.
In most genuine cases of self-defense the circumstances alone are sufficient to meet the defendant’s burden of production on self-defense. The defendant’s 911 call, witnesses who observed the attack, later recorded statements of the defendant referencing the defensive act, defensive injuries to the defendant–the Zimmerman case is a good example of where such evidence of self-defense was in abundance.
None of that exists here, largely because Michael Dunn fled the scene of the shooting and never called 911. Other than Defense counsel Strolla’s opening statement–which does not count for this purpose, as it is not evidence–there appears to be no facts in evidence to date that support a claim of self-defense.
Because of this, it is my expectation that of the defense’s last two witnesses, one of them MUST be Michael Dunn. If so, we will hear him testify tomorrow morning, most likely as the last defense witness before the defense rests, as that would be the most powerful position for a self-defense narrative.
All he need to is merely utter the words “self-defense” on the witness stand, and I’m sure he’ll get the self-defense instruction. But at the cost of being cross-examined by State Attorney Angela Corey. THAT will be worth watching. As much as I despise the prosecution’s conduct in the George Zimmerman trial–and always shall-Corey has proved herself a professional and competent prosecutor in this trial. I expect she’ll take her pound of flesh, and then some.
It has also become clear over the last four days that the State has a straight-faced shot at getting the jury to convict Michael Dunn of first degree murder. I came to my observation of this trial assuming that the first degree murder charge was a typical case of prosecutorial overcharging.
Here, however, there appears more than enough evidence from which a rational jury could find the killing was an act of premeditation, specifically in the many affirmative steps Dunn had to take in order to bring gun fire unto the SUV, and the manner in which he engaged the vehicle repeatedly.
First, in order to fire the gun at the SUV at all, he had to:
After the first three shots, Dunn paused deliberatively before firing an additional four very rapid shots, then an even longer pause followed by a final rapid three shots. Of the 10 shots fired, nine of them struck the SUV, with each group of three being reasonably precise as well as accurate. (If interested, you can hear the number, pattern, and tempo of the gun shots on the short piece of surveillance video here: “Loud Music” Murder Trial: Sequence of Gun Shots.)
In summary, the defense witnesses seen today drew a picture of Michael Dunn as a very odd, and very isolated young man. Effectively no contact with his only child, although he lived in the same state and was apparently amicably divorced from the child’s mother. His only character witnesses appear to be people who would more accurately be identified as his parents’ friends, not his own, and someone with whom he worked a relatively few times over a 15 year period. Indeed, the people one would expect to have the keenest insight into him as a person were the first to concede, when asked, that they really didn’t know him all that well at all.
With all that said, let’s step through today’s mostly pathetically weak defense witnesses–the notable exception being when Strolla called Ron Davis, father of Jordan Davis–as well as next steps for the trial moving forward.
The first defense witness was Randy Berry. Randy lived in the same community as Michael Dunn’s father, apparently community build around an interest for flying light aircraft. Randy had taught Michael Dunn aerobatics, and Michael participated on a weekly basis with various flying-related activities in the community, but by all appearances it would have been more accurate to call Randy a friend of Michael Dunn’s father rather than of Michael Dunn.
Asked by Strolla if he knew whether Michael Dunn had a reputation for being violent, Randy answered the in his experience Dunn had always been a peaceful man.
Not much to say here. Beverly, wife of Randy, was an even weaker character witness for Dunn than was her husband. Seems like she’d even be a poor character witness for her husband, late-life marriage.
Corey was in a take no prisoners mood on cross. In response to Beverly’s testimony about interacting with Dunn at social events, Corey asked “Any black teenagers at these social events?” Strolla promptly objected, sidebar.
This was another character witness from the community of Michael Dunn’s father, rather than from Michael Dunn’s own community. Again, seemed more a friend of the father than of Dunn.
On cross, Corey asked, “You don’t know anything about the facts or circumstances of this case, do you?” Thompson agreed he did not. Dismissed.
This witness was a bit of a mystery. An employee at the Gates gas station the night of the shooting, he nevertheless seems to have had no personal knowledge of the shooting itself other than having heard shots.
Strolla showed a great many photographs of various angles of the gas station–at least 20 of them–each time asking Ates if it was a true and accurate representation of the gas station. Each time it was. Indeed, the pictures weren’t even of the “crime scene,” in the sense that they were taken many days later. By Defense Attorney Strolla himself, who apologized for the poor quality of the photos (“I’m no cameraman.”)
Strolla also asked Ates about the dumpsters behind the gas station, but seemed to determine only that all employees shared responsibility for bringing trash bags out there.
Indeed, so pointless seemed Ates testimony that even the lovely Assistant State Prosecutor Erin Wolfson seemed at a loss at how to cross-examine the affable young man.
On re-direct Strolla re-affirmed again that the witnesses at the gas station had been gathered together in the convenience store, rather than kept separated somehow. Nothing new here, nor seemingly terribly relevant.
To be perfectly honest, so boring was the Ates testimony that my attention wandered. I suppose it’s possible he said something important and I missed it. But I think not.
Ms. Reeves was working her job at a dry cleaners in the Plaza that adjoins the gas station. At the time of the shooting she had left her job for the day. Driving behind and around the gas station, she found herself at a red-light immediately in front of the gas station when she heard the shots. She looked over and saw a red SUV leaving the gas station parking lot. Period.
On cross, ASA Erin Wolfson explored whether she might have been too far from the scene to see much in the evening darkness. Reeves explained it wasn’t really all that dark yet. Wolfson asked if it wasn’t true that she hadn’t seen the SUV actually stopped, but merely in motion. Reeves agreed. And that was that.
The next called defense witness was a real surprise to me, and I think an incredible blunder by Defense Counsel Strolla: Ron Davis, father of Jordan Davis.
Strolla’s goal seemed to be to get Davis to concede that he and the three other boys in the SUV–Kevin Thompson, Leland Brunson, and Tommy Storns–had met and discussed the facts of the shooting, in contravention to what they had been instructed by police.
When Davis resisted this implication, Strolla turned to the transcript of his earlier deposition of Davis. It turned out that Judge Healey lacked his own copy, so when Wolfson began objecting the Judge had no way to make an informed ruling. Minutes went by as Davis sat, a forlorn and apparently broken man in the witness stand, alone, before the jury, while the paperwork was straightened out.
Once Strolla got back to questioning Davis, he accomplished little more than provide the father with a platform on which to express the devastation he, as well as Davis’ three friends, felt at the loss of Jordan Davis. After only three minutes of this questioning Strolla gave up the effort, far too late.
The next witness seemed at first as if he might have something to contribute, but in the end his testimony only further isolated the defendant. It was Chris Dunn who was married the day of the shooting, and whose wedding Michael Dunn and Rhonda Rouer had just departed.
Chris seemed a nice enough young man. Asked by Strolla if Michael Dunn had seemed unhappy, angry, confrontational, intoxicated, etc., at the wedding, Chris answered in the negative, and quite credibly. It was well known that Michael Dunn and Chris’ mother had long been divorced, and it was seen as a positive for Dunn that this post-divorce family could join together for a friendly family event.
On cross, however, when asked by Corey how many times he had seen his father in the fifteen years prior to the day of the wedding, he answered, “Three time.” Three times. In fifteen years. Yikes. Is it fair to say, asked Corey, that you really didn’t know your father very well? Yes, answered Chris, that would be fair.
Finally, Corey zoned in on an area of questioning that was both drippingly contemptuous and hilarious, all driven by the tone of her voice.
If, she asked, his father had called him that night, said there was an emergency, and asked him if he could watch his father’s new puppy, would he have done so? Yes, he answered.
The contempt was focused exclusively on the word “puppy”–she might as well have been saying “leper.” The reason, of course, is Rhonda Rouer’s testimony that the reason Dunn and she had not called the police in the aftermath of the shooting was because they wanted to situate their 7-month-old puppy beforehand.
Next up was Michael Dunn’s ex-wife, and the mother of Chris Dunn. Again, Strolla used this witness to ask about Michael Dunn’s peaceable demeanor at the wedding, as well as whether Molinaro had any fear or concern about Michael Dunn. Indeed not, she said, and like her son credibly so.
Again on cross, Corey came back with her “puppy” question. If Dunn had called, said there was an emergency, and asked her to watch the puppy, would she have? I guess so, she replied, if only because it’s a puppy. Dismissed.
Next up was a witness who perhaps had less to say about anything to do with this case than anybody else, even Darrion Ates: Lexi Molinaro the daughter of Phyllis Molinaro by her husband after she’d divorced Michael Dunn.
Lexi had been at the wedding, and like everyone else agreed that the affair had been affable and that Dunn had not appear angry or out of sorts or intoxicated. That was it for the defense.
On cross, Corey asked her how many times she had met Michael Dunn before the wedding. Two or three times, she answered. Fair to say you didn’t know him well? Yes. Would you have cared for the puppy? Sure. Dismissed.
Strolla used the appearance of Detective Oliver to get into the child-locks on the doors again but the result was simply confusion. Strolla showed a series of photographs of the child locks, and Oliver agreed that was how they had been set when he’d inspected the SUV for that purpose some days after the shooting. The pictures clearly show the locks in the unengaged (lower) position.
It is important to what little narrative of innocence Strolla has that the child safetly locks have been in the off position at the time of the shooting. If they were engaged, it becomes impossible to argue that Jordan Davis exited the vehicle and attacked Michael Dunn, thus justifying Dunn’s use of defensive force. Leland Brunson, the other rear passneger in the SUV, had testified that the child locks were engaged that evening.
In the greater scheme of things, it would seem not to matter a great deal, because there is as yet no witness who ever saw Jordan Davis exit the vehicle.
Next up was another strange character reference, a Don Moes. Moes had previously worked with Dunn some 15 years earlier, then after a 13 year lapse had worked indirectly with him again a couple of years ago. Moes testified that his knowledge of Dunn’s reputation is that of a preaceful man. Nevertheless, he came across as a character witness who really did not know Dunn well on any meaningful personal level.
After Moes the jury was dismissed from the day and the Judge, State, and defense discussed expectations for moving forward. Strolla indicated that he had at most two witnesses remaining. One of those was a purported expert that had to date not produced any kind of formal report of findings. As a result, the State was essentially blind to what this guy would testify to. If he is to testify, it seems likely we have a Daubert hearing facing us in the morning to qualify this expert, as well as the scientific credibility and evidentiary relevance of his proffered testimony.
It was not stated who the second witness was, but as discussed at the star of this post, if that second witness is not Michael Dunn himself it is difficult to see how he is even allowed a self-defense instruction to the jury, much less any kind of acquittal on a self-defense argument.
Judge Healey indicated that if they can complete witness testimony by lunch tomorrow, he’d like to move to closing arguments in the afternoon. If, however, witness testimony moves into the afternoon, there will likely be too little time for closing. In that case, they’ll close early and start closings the following day.
Further complicating matters is a great deal of uncertainty over what the jury instructions are going to be. Closing arguments can’t really take place until the jury instructions are finalized, because they will be referred to in those closing arguments. But the jury instructions can’t be finalized until the evidence is in final form–in this case, the last testimony is heard.
In this case, for example, if it turns out a self-defense instruction is not warranted, something on the order of 17 pages of jury instructions can be done away with.
The court’s schedule for tomorrow is that the parties will meet with Judge Healey at 8AM tomorrow to hash out whether the defense’s “surprise” expert witness will testify. The trial proper is supposed to start at 9AM, and proceed from there as described above.
Join us all again then. We’ll be ready to go live at 8AM in the event the early hearing is televised, and will certainly be live the moment the trial proper beings.
Until then!
–Andrew, @LawSelfDefense
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.
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