Tomorrow marks the start of the third week of the second degree murder trial of Detroit homeowner Theodore Wafer for the front porch shooting death of Renisha McBride in the early morning hours of November 2, 2013. This past week saw the milestone of the prosecution resting and the start of the defense presenting its case. In preparation for the Court coming back into session tomorrow morning with the continuation of the defense’s narrative of innocence to the jury we thought it might be useful to provide a brief recap of what’s happened to date, highlighting notable events and observations.
The undisputed facts of the case are that Renisha McBride was driving her car the night of November 1 while under the influence of some multiple of the state’s allowable blood-alcohol limit, as as with active marijuana in her system. She crashed her car, disabling it, and apparently striking her head on the windshield. She abandoned the crash site and essentially disappeared for the next several hours.
Around 4:30 a.m. on the morning of November 2 Theodore Wafer was awoken from sleep by McBride banging on his front door. The defense claims the banging was alarmingly vigorous, and that there were similar sounds coming from other exterior doors and windows of the house. The state claims McBride was merely knocking on his door in a normal manner in order to seek assistance. Wafer, unable to immediately find his cell phone, retrieved his home-defense shotgun, a pistol-gripped Mossberg 12 gauge loaded with #4 shot. He approached the locked front door of his home, unlocked and opened it. He then discharged the shotgun through his locked screen door. The shot struck McBride in the face, mortally wounding her. Wafer located his cell phone, called 911, and police were on the scene within a few minutes.
The state’s narrative of guilt presents Wafer as a man who acted unreasonably to the presence of a 19-year-old black woman who was simply seeking assistance after a car accident.
The defense’s narrative of innocence presents Wafer as a homeowner awoken from sleep by noises reasonably consistent with a possible burglary attempt–his immediate neighborhood experiences some hundreds of burglaries and other violent felonies each year–and who fired in reasonable fear of death or grave bodily harm and from within his “castle” when suddenly confronted by the erratically behaving McBride.
Key to the defense’s narrative in it’s opening statement is that the hole in the screen of the screen door could only be positioned as found if McBride had used so much force on the screen door that the screen was knocked out of position prior to the shot being fired.
The jury consists of a panel of 12, plus 2 alternates. There are 7 men and 7 women, with 10 being white and 4 black.
The trial began with live video streaming of the morning’s opening statements, albeit the quality was very sketchy at least on my end. Around mid-day, however, it appears that the cameras accidentally displayed one or more member of the jury. The live video feed has not been available since, with obvious implications for the insight we can share re: events in court. Since then we have been dependent upon the direct observations of news reporters and photographers who are live blogging and tweeting the trial (apparently form a separate room equipped with a direct video feed).
Assistant Wayne County Prosecutor Danielle Hagaman-Clark provided the state’s opening statement. Importantly, she noted that under Michigan law it is not necessary that the state prove Wafer had any intent to cause harm. Rather it is sufficient for a conviction if they convince the jury beyond a reasonable doubt that Wafer “knowingly created very high risk of death or grave bodily harm knowing that death or such harm would be the likely result of his actions.”
Defense counsel Cheryl Carpenter presented the defense’s opening statement
Each side essentially presented its theory of the case as described in the background provided above.
The defense renewed motions for admission into evidence of numerous photos found on McBride’s cell phone, which trial Judge Dana Hathaway denied. Over the course of the trial Carpenter would continue to renew her motion for admission of the photos, as well as for certain content from McBride’s social media accounts. The photos purportedly show her drinking and smoking marijuana, along with some suggestion (unconfirmed) of a photo of her possessing a pistol. McBride’s Twitter account name “Young and Thugging,” which the defense would likely wish to use to raise reasonably doubt on the issue of first aggressor. To date Judge Hathaway has continued to deny admission of both.
Also rejected by the judge was a “crime map” prepared by the defense to illustrate the many burglaries and violent crimes committed within Wafer’s immediately neighborhood each year. The prosecution argued that there was no evidence that Wafer personally had knowledge of these specific events, and thereby there was a lack of foundation for the map’s admission into evidence. Judge Hathaway concurred with the state.
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Immediately after the finish of opening statements, the state called its first witness, Renisha McBride’s mother, Monica McBride. Monica McBride didn’t add much insight to the case, testifying primarily to the fact that Renisha had been involved in a drinking game that night which she “was losing.” She also became emotional on the stand, as one would expect, wiping tears from her eyes as she testified.
The afternoon began with the start of the state’s presentation of its case, witnesses, and evidence to the jury. These included:
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Carmen Beasley, the woman whose husband’s parked car was struck by Renisha McBride in front of Beasley’s home several hours before McBride was shot by Wafer. It was Beasley who first called 911, and who first communicated with the dazed and injured McBride. This accident took place about a mile from Wafer’s home, the site of the shooting.
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Dearborn Heights Police Corporal Ruben Gonzalez, one of the first responders on the scene at Wager’s home. He would pat down Wafer, and secure him (without handcuffs) in his squad car. Wafer was compliant throughout the interaction.
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Dearborn Heights Sergeant Rory McManmom was the first police officer at the scene of the shooting. He would testify that Wafer told him “I didn’t know there was a round in there,” presumably meaning in the chamber of the shotgun.
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Syphonia Page was a witness at the scene of McBride’s crash car at about 1:00 AM, several hours before the 4:30 AM shooting. She described how McBride walked around the crash site a bit, then wandered off.
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Another witness to testify from the crash site was Paris Pace. On cross examination she was asked by the defense to stand and show the jury what McBride’s gait looked like. Pace’s staggering walk led to audible gasps in the court room.
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Dearborn Heights Police Department dispatcher Valentine Pepper also took the stand. He would also testify that Wafer indicated he had thought the shotgun to be unloaded, and the shooting to have been an accident.
These suggestions of “accident” can be very damaging to a self-defense case. Self-defense is an inherently deliberate act–one sees a threat, and acts deliberately to counter that threat. An accident, on the other hand, is the opposite of a deliberate act, it is something that one does not intend to happen. Normally, if you claim one you cannot claim the other. Self-defense encounters can involve a combination of deliberate acts and self-defense, but it is a far more complex narrative to convincingly sell to a jury.
The afternoon began with a prosecution request for sanctions against the defense for having mentioned a separate crime event in Wafer’s neighborhood–a law enforcement marijuana raid some houses away. No sanctions were imposed.
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Dearborn Heights Police Officer Tim Zawacki was another of the first responders on the scene at Wafer’s home, and his testimony provided the foundation for the introduction of several crime scene photos, including photos of Wafer’s shotgun, photos of McBride’s body on site (prompting her family to briefly exit the court room), and the screen door through which the fatal shot passed. He also noted that a driver’s license and $56 in cash was recovered from McBride’s body. (The amount of cash on McBride’s person would later become an interesting issue, when it other law enforcement testimony revealed there had also been a $100 bill on her person.) Importantly, it was with Officer Zawacki that the defense on cross-examination began to robustly attack the investigative procedures used to identify, collect, and preserve evidence from the scene of the shooting. This would continue with every other law enforcement officer involved in any of these vital functions. The goal, of course, being to lay a foundation for reasonable doubt for the jury.
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Dearborn Heights Corporal Mark Parrinello was another first responder on scene, and his testimony provided the foundation for more pictures from inside Wafer’s house showing where the shotgun and shells had been kept, as well as photos of the crash damage to McBride’s car. He also took photos of the screen door. Importantly, he testified that the peephole on Wafer’s front door was functional upon inspection. He also testified about collecting some fingerprints off the screen door, as well as (oddly) about the presence of maggots later discovered on McBride’s clothing, purportedly because it was placed near rotten deer meat in the medical examiner’s office.
The pace of witnesses testifying picked up considerably today. Among them were:
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Davonta Bynes, who testified that he texted with McBride that fatal night in an effort to get together that evening, apparently for romantic purposes.
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Ray Murad, Wafer’s neighbor, who testified that shortly before the shooting he heard noises outside his home that were sufficiently alarming to induce him to go outside in the early morning hours and check on his cars.
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Michigan State Police Detective Sergeant Kevin Lucidi, an accident reconstruction expert, who testified regarding the site of McBride’s car crash.
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Livonia Detective Wade Higgason, who recovered McBride’s cell phone from her impounded vehicle.
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ATF Special Agent Stan Brue, who is on assignment with the Detroit Police Department, and is an expert on cell phone records. He provided testimony about the approximate location of McBride’s cell phone over the course of the evening on the basis of signals from cell phone towers in the area.
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Dearborn Heights Police Officer Cyndi Maxwell, a fingerprint expert, testified that she was unable to identify any of the prints collected from Wafer’s screen door.
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Michigan State Police Forensics Scientist Jennifer Rizk was also unable to identify these prints from the screen door. Importantly, she did mention evidence of an apparent footprint on an air conditioner unit from outside Wafer’s home. This footprint was neither collected nor preserved, again suggesting substantive defects in the investigative procedures and execution. The footprint would become important to the defense’s narrative of Wafer’s reasonable fear, in that it suggested that someone might have stood on the air conditioner in an effort to gain access to his home.
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Michigan State Police Crime Lab technician Allison Riviera-Papillo, who matched blood and tissue from the shooting scene to McBride.
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Michigan State Police Forensic Scientists Heather Vitta, who also matched blood from both the shooting site and from the interior of McBride’s crashed car to McBride.
After the witnesses were done and the jury dismissed, there was a discussion with the judge regarding witnesses the defense planned to bring. Among the testimony to be expected from these witnesses, the defense explained, was that the footprint on the air conditioner should have been preserved in the course of evidence collection, and that the screen in the screen door had been dislodged prior to the firing of the fatal shot.
The rate of witnesses slowed considerably from the previous day, down to two. The first two of these was no more interesting than those of yesterday, but the third finally began to inject some energy into the trial.
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James Bivens Jr., the Chief of the Criminal Investigative Division of the Wayne Country Prosecutor’s office was the first to testify. Bivens had little of substance to add in his testimony, with the only point of interesting being some investigate notes he had failed to provide the defense, which now requested them. The state objected, and Judge Hathaway upheld their refusal.
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Michigan State Police Detective Sergeant Shawn Kolonich, a forensics firearms expert, would start his testimony in the morning and continue into the afternoon. As one might expect, his testimony focused on his examination of Wafer’s Mossberg shotgun, about which there was nothing unusual.
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Dearborn Heights Detective Sergeant Stephen Gurka, the investigative officer in charge of this case, would prove by far the more interesting witness of the day. He would testify that one of the first responding officers on the scene told him that Wafer had said the shooting was an accident, and that information would guide–and, the defense was to argue, improper constrict–the scope of his investigative efforts.
Importantly, Gurka was to testify that the on-scene photos of the damaged screen of the screen door were taken only after he had replaced the screen within its frame–there are no photos of the screen in its dislodged position, a potentially serious shortcoming in evidentiary procedure.
Gurka was also to testify that there was no apparent damage or marks on Wafer’s wooden door, located immediately behind the locked screen door.
Then came some blockbuster information. Some of the on-scene discussion among police officers had been captured by dash-cam in their patrol cars and by individual recording devices they carried. Among these remarks was that a $100 bill had been found on McBride’s person. This discovery led to the officers discussing the possibility that McBride may have been a prostitute, and that her death might have resulted form her attempting to collect a debt from a “John.” These tapes were played in court, but outside the hearing of the jury.
The defense began the day with its continued cross-examination of investigative lead Gurka, attacking in particular the failure to collect and preserve certain evidence. With respect to the footprint on the air conditioner, the defense’s persistent question would eventually lead to Gurka noting that if someone had indeed been standing on the air conditioner that perhaps that was the person Wafer should have shot. This remark would seem to reinforce the defense’s narrative in the sense that apparently even a trained police officer thought it would be appropriate to shoot someone outside of one’s home, if that person was reasonably perceived as attempting to gain access. I would not be at all surprised to hear Gurka’s remark repeated in the defense’s closing arguments.
Also emphasized throughout the cross-examination was Gurka’s candid acknowledgement that he saw the case as “open-and-shut,” from the start as an accidental shooting, and simply didn’t treat it as a potential burglary case. Gurka would also acknowledge that there was a lot of pressure associated with investigation of the case.
Gurka would also testify with respect to the $100 bill that the medical examiner had provided that to the family.
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Sure enough, the next witness would be the mother of victim Renisha McBride, Monica McBride ,who testified that she received the $100 bill from the medical examiner.
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Interestingly, the next immediate witness was the medical examiner, Dr. Kilak Kesha, who would testify that he didn’t know anything about the $100 bill. He had performed the autopsy on McBride, and testified about her injuries. Her brain had been pulpified by the shot. She also had blood on her hands. He described McBride as being 5’4″, but also 180 pounds, so hardly a slight woman.
He testified that McBride’s blood alcohol concentration (BAC) was 3.5 times the permissible level (it would later be revealed that it was 3.5 times the permissible level for someone 21-years-old or older–for a 19-year-old, like McBride, her BAC was actually 11 times the permissible level). At this level she would be profoundly intoxicated, dis-coordinated, and likely staggering.
Interestingly, it was revealed that Dr. Kesha had never been Board certified, for which his explanation was that he’d been to busy.
Following Kesha’s testimony the state rested. The defense made a motion for a directed verdict of non-guilty, at least on the second degree murder charge (Wafer is also charged with manslaughter). Judge Hathaway denied this motion, and the defense began its presentation of its case.
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The first defense witness was expert witness Dr. Werner Sptiz. The now-retired 87-year-old had for 16 years been the chief medical examiner. It was with this witness that the defense began to cause substantive damage to the state’s narrative of guilt.
While all of Dr. Spitz’s testimony is worth reviewing, by far the most important portion was when he described the bloody injuries and swelling of McBride’s hands. These could not, he said, have been caused in the course of the car crash some hours earlier, as the blood would of clotted and the swelling subsided by the time of the shooting. They could only have occurred in the minutes prior to the shooting–suggesting, then, that they were the results of McBride forcefully attacking the screen door of Wafer’s home.
Dr. Spitz’s direct testimony continued, with the important observation that McBride was likely within two feet of Wafer’s shotgun muzzle when the shot occurred. The closer McBride was to Wafer, the more credible that a reasonable person in his position would have been suddenly alarmed, especially if she staggered–e.g., lunged–from out of sight, as Spitz testified the crime scene photos might well have been the case.
It was on cross-examination, however, that the questioning of Spitz began to suggest a prosecution that was flailing. The state questioned Spitz’s interpretation of the swelling of McBride’s hands, but in such a way as to confirm the probability of his conclusions and to reinforce them in the jurors’ minds. They attempted to belittle his credentials by noting that he had not been Board certified in some decades, only to learn (oops) that re-certification was not required if continuing medical education was maintained, as Spitz had done. This was particularly ironic in view of the fact that the state’s medical examiner has never been Board certified.
At one point the prosecutor made a lengthy rambling statement, and when this drew no response from Spitz he asked if the doctor had understood the question–attempting to suggest, perhaps, mental frailty. Certainly I understood, answered the doctor, but you didn’t ask me a question–would you like my thoughts on the matter? The result was an outburst of laughter in the court room, including from the jurors.
At another point the prosecution held up the forensic’s text book Spitz had both edited and written for–a book that the state noted weighed 9 pounds–and sought to impeach Spitz’ testimony regarding the shotgun wound with words from his own book. After reading text from the book that contradicted Spitz’ court room testimony, they found themselves on the receiving end of a kindly explanation that what they had just read involved handgun wounds, and what was at issue was a shotgun round, and that the two were profoundly different matters.
The prosecution also unhelpfully (for their own narrative) dug back into the toxicology report of McBride’s intoxication, allowing Spitz to reinforce in the juror’s minds that McBride had been well and truly blotto that night.
Perhaps the best of Spitz’s testimony, however, came when the prosecution challenged Spitz’ credibility in claiming to be able to understand McBride’s state of mind at the time of the shooting. Indeed, Spitz, acknowledged, there was someone who was perhaps better positioned to truly understand McBride’s state of mind–and that would be the defendant, Theodore Wafer, who was the last person to see her alive.
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The next defense witness was firearms expert David Balash. Of humorous interest when Balash first took the stand were efforts by the prosecution to impeach Balash’s credibility as an expert witness for the purposes presented by the defense. Balash is a retired Michigan State Police Lieutenant Detective who as testified as a firearms expert in many, many hundreds of cases. The effort by the state carried the appearance of petulance.
The substantive value of Balash’s testimony for the defense was his analysis that the shotgun blast to the screen had occurred only after the screen had been dislodged from the door–reinforcing the defense narrative that McBride had attacked the screen door with considerable force, sufficient to create in Wafer’s mind a reasonable belief that someone may have been attempting to invade his home.
And that brings us to where things stand today. Court resumes at 9 AM tomorrow morning. I’ll personally be in transit much of the morning, but will seek to pul together a mid-day-wrap up early in the afternoon. And end-of-day wrap-up is, however, a certainty.
Until then!
–-Andrew, @LawSelfDefense
[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 (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.
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