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Homeowner Takes the Stand in Detroit Front Porch Murder Trial

Homeowner Takes the Stand in Detroit Front Porch Murder Trial

Theodore Wafer testifies: “The floor was vibrating from the banging,” on his front and side doors. “I shot to defend myself, it was them or me.”

Court room testimony took a dramatic turn today in the murder trial of Detroit homeowner Theodore Wafer for the front porch shooting death of Renisha McBride when Wafer took the stand to testify in his own behalf.

Direct questioning was conduced by lead defense counsel Cheryl Carpenter.  (As usual for this trial we had no live video feed, so our observations are second hand and based on the outstanding live blogging of the trial by Detroit Free Press reporter Gina Damron and pictures by Detroit Free Press photographer Mandy Wright.)

The defense did an excellent job of hitting all the key issues necessary for a robust narrative of innocence.

Wafer describes his growing fear at hearing “indescribeably loud banging” [sic] on his front and side doors, banging that went on and grew more severe, to the extent that it was vibrating the floor of his home.

He  described how one of his neighbors across the street had just a few months prior to the events on his porch had been forced to hold off three violent attackers with his handgun.  He recounted how his neighborhood had grown increasingly dangerous, and that he discovered various drug paraphernalia, including syringes, on his property on a monthly basis.  Just recently he’d had his car vandalized outside his home.

In the fact of this growing lawlessness he’d acquired a pistol-gripped shotgun specifically for home defense, noting that he wasn’t getting any younger and that he could not afford an alarm system.

He describes how he had been in a neighborhood pub earlier that evening, consuming three beers over a three hour period between about 4:00 and 7:00PM, approximately 9 to 12 hours prior to his shooting of McBride–obviously, any alcohol in his system would have been metabolized well before he’d even gone to sleep that night.

On the issue of the mysterious and unaccounted for footprint on his air conditioner, Wafer testified that he had never stepped on his air conditioner, not wanting to damage his own property, meaning that the footprint must have some other, perhaps nefarious, source.

Critically, Wafer testified that he held his shotgun in his left hand as he opened his wooden front door with his right. As he did so he observed that his screen door had been damaged and the screen had been dislodged from the frame.

No sooner had the door fully opened than a figure lunged toward him from the side of the door, outside his line of sight, and no more than 2 feet away.  His response, he said, was to fire instinctively.

Asked by his defense lawyer why he pulled the trigger, Wafer said it was in self-defense, and that “it was either them or me.”

This narrative helps to align what would otherwise be two contrary stories of either deliberate self-defense or an negligently accidental shooting.  In essence, Wafer is describing an automative, reflexive, unplanned firing of the shotgun, rather than a literal unintended accidental firing.

The pace of the direct examination of Wafer also appeared well done, with smaller, more ancillary matters like the footstep on the air conditioner and the increasing crime in the neighborhood being dealt with early on, and the dramatic stress-filled fight-or-flight events being delivered to the jury last.

The timing of this delivery may be particularly important and effective given the nature of the state’s cross-examination this afternoon.  While cross has only begun, the state began by showing some videos of Wafer being interviewed at the Dearborn Heights police station.  Other than his use of the term “accident,” however, his statements on the video appear entirely consistent with his testimony on the witness stand and the narrative of innocence being presented by the defense.

The state’s decision to open with the video recording may have made more sense if begun earlier in the day such that they’d have a change to end strong before the jury was dismissed.  Doing so in a manner that this relatively benign evidence was the last heard by the jury, however, seemed a poor choice.

As a result, the jury having been dismissed for the day will be left for the evening with the unimpeached narrative running through their head of a terrified homeowner, awoken from sleep by an apparent attack on his home in a neighborhood growing increasingly violent, and who acted in what he believed was necessary self-defense.

It goes without saying that Wafer’s actions were far from tactically prudent–I, for one, would never have opened the door–but the law does not require perfect decision making or tactical execution in the heat of a fight for one’s life.  I am among those who are troubled by the notion that someone subjectively fearing for their life would open a secured door and thus expose themselves to precisely the threat they claim to fear–and it remains a perfectly legitimate avenue of attack upon Wafer’s self-defense claim.

It seems increasingly doubtful, however, that that line of attack alone will be sufficient to convince a the jury unanimously that the state has disproven Wafer’s claim of self-defense beyond a reasonable doubt, which is the legal burden the state must overcome to gain a conviction.

Keep in mind that in order to accomplish this the state must disprove, beyond a reasonable doubt, at least ONE of the five elements of self-defense–innocence, imminence, proportionality, avoidance, or reasonableness.  Avoidance–the issue of retreat–is off the table because the shooting took place within the context of Wafer’s home, thus gaining him Castle Doctrine protection.

As to the other elements of self-defense, I see no really robust attack by the state in its presentation of the case. Much of the evidence they presented was targeted at their burden of proving the elements of the crime beyond a reasonable doubt–a necessary task, but really the fact that Wafer shot and killed McBride has never been in dispute. Wafer would seem most vulnerable on the element of reasonableness, but where was the strong attack on reasonableness in the state’s case?  Were I the prosecutors I would have hammered relentless on the issues of “opening the door” and “accident,” yet from what I can discern from the live blogging and tweets of reporters present, I just don’t have the sense that the necessary vigorous attack occurred.

There were two other witnesses today prior to Wafer taking the stand–the wrap-up of the testimony of firearms expert witness David Balash and the testimony of Dearborn Heights Sergeant Krot, but I will address their testimony in a separate follow-up post.

OK, folks, that’s it for now.  Court’s back in session at 9:00AM tomorrow, and I expect we’ll have a mid-day wrap-up in the early afternoon.  Key for tomorrow, of course, will be the continued cross-examination of Wafer by the state.

–-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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Comments

Story sounds entirely consistent to me.

I question his decision to open the door, but can certainly see the argument that if he didn’t think they were going away and were going to keep trying until they got in, to open the door and display a gun to scare them off is not an unreasonable course of action.

Likewise his use of the term ‘accident’ would be perfectly consistent with somebody that didn’t necessarily want to kill somebody, but was just trying to defend themselves. I might have used the word ‘reflex’ rather than ‘accident’, but I could certainly see somebody shaken up by the incident using it.

At this point I can’t possibly see how they can convict him. Prosecution hasn’t really shown any evidence to contradict a self-defense claim beyond a reasonable doubt.

    MouseTheLuckyDog in reply to Olinser. | August 4, 2014 at 11:30 pm

    “Opening the door” is like the buxom bleach blonde babe [1] hearing a bang in the basement while showering, then going down to see what it, wearing a towel ( if that ), that you see in the slasher movies.

    Still after several minutes of pounding, I can see where a person’s desire to know what is happening overcomes his common sense.

    [1] Hey. That’s alliterative.

@Andrew, why put Wafer on the stand? Any ideas?

The prosecution seems pretty inept, but any mistake from Wafer on cross could sink him.

    If the threat of substantive impeachment is low (e.g., you don’t have a reputation or history of unlawful violence) and there’s confidence that you won’t lose your cool under cross (which still has to be demonstrated in Wafer’s case), it’s often desirable to put the defendant on the stand in self-defense cases where they are the only substantive witness, as here.

    Who better to tell his story of necessary self-defense while in reasonable fear of imminent death or grave bodily harm than Wafer? If he’d had a wife and kids and they could have testified as to THEIR fear under the circumstances, I doubt we’d be seeing Wafer on the stand. But we don’t have that here–it’s Wafer or nobody to describe what happened that night.

    Remember, the rule about never putting your client on the stand is mostly (not entirely, but mostly) a function of the reality that most criminal defendants are actually criminals, and therefore subject to severe impeachment the moment they start to testify. With “good” self defense cases–those involving people with no prior criminal history–this does not generally apply.

    –Andrew, @LawSelfDefense

      Andrew: “Remember, the rule about never putting your client on the stand is mostly (not entirely, but mostly) a function of the reality that most criminal defendants are actually criminals.” I actually laughed out loud!

      Ain’t that the truth. Of all the indigent clients I represented back in the day, I think only one was actually innocent.

      Thank you for the clarification Andrew 🙂

The only mistake he made that I can tell was talking to the police without a lawyer present. The police will and can use whatever you say against you in court.
prosecutors are not interested in justice, just convictions. If the person that got shot is a “protected minority”, the media scrutiny is worse. And the prosecution to avoid the “racist” label will pull out the stops to convict you. I can get bashed as a “racist”…but this is the truth in today’s society…If you use a gun, you gotta be ready for that. I am a long time gun owner and I have a lawyer on speed dial in case I ever have to call one if I have to use my pistol to defend myself.

Richard Aubrey | August 4, 2014 at 7:41 pm

Said before, I fixed windows and did various similar things all over the Detroit area in the mid Sixties. Lots and lots of fast builds in the immediate post-war years. Dearborn Heights was pretty much built up back then, so unless Wafer has a house built on an old house’s lot, it’s from that era, more than likely.
Which means it’s perfectly reasonable to think of the floor as vibrating under such pounding, and that a door wouldn’t be much of an obstacle if it was original or similar to the original. Keep out the rain, I suppose. So to say, without knowing about the sturdiness of the door and the frame, that opening the door was unnecessary as keeping it closed would mean safety is uninformed. I lived in a place like that, not far from Dearborn Heights, Redford Township. A reasonably solid guy who learned in tenth grade football how to throw a forearm shiver wouldn’t even have to kick the door open.

Question for Andrew. Does Wafer testifying open the door to showing the crimes committed in the immediate neighborhood? And could that lead to the photos on her phone and social media?

    He spoke to some specific instances of crime today, so in that sense, yes. An across the street neighbor had to defend self with pistol against three attackers, and he routinely finds drug paraphernalia, including syringes, on his property.

    But if the defense was going to go in to much greater detail than that — e.g., the “crime map” of the neighborhood they’d prepared, they would have done so today during their direct of Wafer. It may be they were unable to meet their burden of production on Wafer’s prior existing knowledge of those other specific crimes, and thus they were excluded on that basis.

    Of course, they can still re-direct after the State is done cross-examining Wafer, but that re-direct is generally limited in scope to whatever the State covers. So if State opens the door to neighborhood crime–but I can’t believe they’d be that stupid, but given what I’ve seen of the prosecution so far, who knows.

    –Andrew, @LawSelfDefense

Andrew — Would this case even be triable if Wafer had asked for a lawyer instead of using the word accident to the police?

    Wafer shot an unarmed 19-year-old black women in the head with a shotgun in Detroit.

    The political forces for a prosecution with that prima facie fact pattern would be very, very substantial.

    Obviously, of course, Wafer would have been better off if he’d attended a Law of Self Defense Seminar where I discuss what to say and not to say to the police.

    Relevant bit for here: What do you say to investigative officers in the absence of legal counsel?

    ABSOLUTELY. NOTHING. PERIOD.

    Except assertion of rights to counsel, silence, of course. Nothing substantive about the case, is what I mean.

    Maybe the prosecution will effectively beat his self-defense claim to death with the issue of “accident” tomorrow–I don’t have high expectations, given their performance to date.

    –Andrew, @LawSelfDefense

I feel the key is that the figure in the dark rushed him from the side, as if (though this is not what he said) the pounding was to lure him out to then physically attack him. It just seems the woman who was shot was simply not in her right mind and did something no sane person should do in a country with routine gun ownership.

At any rate, this plugs one of the key holes in the narrative.

    MouseTheLuckyDog in reply to JBourque. | August 4, 2014 at 11:17 pm

    Leaping from the side explains why only roughly a third of the pellets were found in her. She was not completely in front of the gun.

    It also raises a possible but unlikely scenario. When she knocks the screen off she makes the hole in the screen. When he opens the door the muzzle pops up through the hole. She lunges in front and grabs the barrel of the shotgun. Was the barrel of the shotgun dusted for fingerprints?

    At the very least it’s something the jury has to consider.

DINORightMarie | August 4, 2014 at 9:31 pm

I am among those who are troubled by the notion that someone subjectively fearing for their life would open a secured door and thus expose themselves to precisely the threat they claim to fear–and it remains a perfectly legitimate avenue of attack upon Wafer’s self-defense claim.

Andrew – would you be equally troubled by the man who hears a noise – lots of noise, maybe the sound of knives rattling in the kitchen, thumps, etc. – and goes downstairs to investigate? Seems like the comparable thing to me – see if the cause of the noise, etc. is gone, or fled.

Is that a comparable action? Not being a lawyer, it seems comparable to me. 🙂

    The difference is that in your hypothetical, the person or persons are already in your house.

    In my house, I have women and children I have a duty to protect, and even in MA we are not required to sacrifice the integrity of our homes to forcible intruders.

    When, however, that person is not inside the home, but outside, and separated from entry by a secured door, it’s simply not at all the same situation.

    All that said, my personal policy for indications of intrusion on the first floor of my house is to take an armed position at the top of the stairs to the second floor (where we all sleep), have the wife dial 911, and the intruder(s) can steal whatever they like from the first floor until the police show up and deter them.

    There’s nothing down there I’m willing to die for, and theft is what I have homeowner’s insurance for.

    What I will NOT allow intruders to do is come up those stairs.

    Of course each of us must draw that line where we think best for our own circumstances–just be careful you draw it within the constraints of the law. 🙂

    –Andrew, @LawSelfDefense

      JackRussellTerrierist in reply to Andrew Branca. | August 5, 2014 at 12:10 am

      Well, if you gathered your family in one room upstairs and locked the door, say a nice, wooden door hinged on the inside of the room just as front doors are hinged, how is that any different from suggesting Wafer shouldn’t have opened the door? Since MI law includes curtilage in its Castle Doctrine, there really is no difference between opening or not sheltering behind a locked, interior door and opening a front door when the intruders are actually closer than they would be in a downstairs/upstairs scenario when you get right down to it.

Not a lawyer, but well versed in self defense. The accident statement is very troubling. I think even a minimally adequate prosecution would be able to take advantage of that. It makes me suspicious of how this went down. Accidentally pulled the trigger? Probably.

    JackRussellTerrierist in reply to Bill Hull. | August 5, 2014 at 12:15 am

    Misspoke (used wrong term) or perhaps suffered wave of acute Zimmerman trial paranoia when he realized the intruder was black (and a woman) and simply lied in panic, not knowing that MI’s Castle Doctrine includes the curtilage?

I can see where the “accident” claim might not be a problem. The entire episode was an accident. Wafer did’t plan to hurt anybody that night, he wasn’t engaged in any activity, such as a robbery, which a reasonable man would realize carried substantial risk of injury to somebody, he had no feud with McBride or any other night owl, etc. It seems to have been pure accident which made McBride pick his house to do what whatever-the-hell-she-thought-she-was-doing to, and which made Wafer think he was being subjected to a home invasion.

But the statement about “accident” isn’t really the one he needs to have interpreted in a way which is consistent with self defense.

The problematic statement is his one about not knowing that the gun was chambered.

“It was an accident” and “I didn’t know it was loaded” are two different things.

“It was an accident” means, well, an accident, and sometimes accidents happen, particularly if one party is doing something bizarre, like hammering on a door in the middle of the night.

“I didn’t know it was loaded” also implies an accident, but due to negligence, and is not the sort of accident many of us (like gunowners) are willing to tolerate, because it’s the sort of accident which, if tolerated, kills people.

    JackRussellTerrierist in reply to tom swift. | August 5, 2014 at 12:22 am

    He may have had a desperate fear of becoming the next George Zimmerman so he first claimed “accident” and “didn’t know it was loaded”, especially when he saw that the deceased was black….and a woman. He may not have known that MI Castle Doctrine includes the curtilage, or did know it but still feared Zimmerman’s fate (and there have been others politically prosecuted in addition to Zimmerman when the dead or injured criminal actor is black).

      Char Char Binks in reply to JackRussellTerrierist. | August 5, 2014 at 10:30 am

      Wafer is getting the Zimmerman treatment all over the net. They demand (white) people know in the heat of the night what everyone can see in the cold light of day. I doubt Wafer got a close enough look at McBride to identify her race or sex before he shot.

        JackRussellTerrierist in reply to Char Char Binks. | August 5, 2014 at 4:51 pm

        Right, probably. Then, perhaps in the very next moment, Wafer looked at her once she was down and George Zimmerman’s face flashed through his mind, so he made the 9-1-1 call and went with ‘accident’, ‘didn’t know it was loaded’ when in fact it was really self-defense, pretty open and shut based on the circumstances.

        He’s probably still wondering why he had the cursed bad luck for this psycho drunk to pick his house.

        If nothing else, maybe other people with a propensity to get their drunk on and unleash their self-centric entitlement mentality of take care of me me me me right now now now will think twice about demanding aid in such a manner from a stranger in his home in the middle of the night.

        Mcbride would be alive if she had waited a couple more hours as she would have been more sober and could have walked around looking for somebody out and about starting their day and asked to use their phone.

        Her own terrible judgment and behavior got her killed. But when I think of her, I think about the lives that have been saved by such a disgusting drunk driver no longer being able to kill somebody. She wasn’t just “buzzed”, she was in a state of several multiples of the legal limit while she was driving.

        Wafer’s bad luck has inadvertently quite possibly saved someone else’s life.

          “She wasn’t just “buzzed”, she was in a state of several multiples of the legal limit while she was driving.”

          That is a point I expected the defense to actually make a bigger issue. For her to still be at the BAO that she was, she either continued drinking in the time she was “missing” or was on the verge of alcohol poisoning when she wrecked the car. Not to mention sill being under the effects of THC.

          Perhaps the defense thought it would look to much like trying to impeach the deceased and would have lost them points with the jury. Though I did note that Dr. Spitz made mention of the fact.

          Targeting McBride directly would have been very dangerous. She is, after all, an unarmed dead 19-year-old black woman shot through the head by Theodore Wafer. You’ll not that Wafer repeatedly expressed sadness at her death.

          But the info got before the jurors, and that’s pretty much all you can do.

          –Andrew, @LawSelfDefense

Andrew, are the ladies in the courtroom not going to allow you to use their stuff anymore? That was very helpful, especially for those of us who don’t tweet.

    Chem_Geek in reply to Gremlin1974. | August 5, 2014 at 12:46 am

    I saw some of the Usual Suspects (“OMG this tiny little youth was gently tap-tap-tapping at the slobbering monster Wafer’s lair’s door seeking help when he cruelly blew her head off and laughed maniacally”) whining about Andrew’s fact-based comments on the Free Press blog. I suppose it was easier for the Freep to just deny permission than to look into it.

    The Detroit Free Press has asked us not to use images of their live blog posts. Naturally, we’re more than happy to reply with such a request. In an abundance of caution we have also removed images of their reporters’ tweets.

    –Andrew, @LawSelfDefense

      It’s really a shame that Michigan refuses to televise major trials the way Florida does. Or even live-stream them. Not much appreciation for “sunshine” up there I guess.

      I mean, I know we’ve got a lot of weird goings-on down here, but at least we don’t hide our crazy and pretend it doesn’t exist. We bring it right out on the front veranda and offer it up a nice sweet tea and maybe even some pimento cheese if we’re feeling fancy.

      And in addition to trying to preserve the traditions of openness and transparency, it also keeps people like that Mr. Branca fellow off the streets … and out of other peoples’ Tweeter feeds 😉

      Gremlin1974 in reply to Andrew Branca. | August 5, 2014 at 3:48 pm

      Understood.

MouseTheLuckyDog | August 5, 2014 at 1:42 am

Something that someone said on the FP blog has made me think. Wafer should claim that he thought she was a Jehovah’s Witness.

Since I feel that Jehovah’s Witness’s should be near the top of the Lord High Executioner’s “Litte List”, I would vote to acquit based on justifiable homicide.

    I’ve often wondered, if a Jehovah’s Witness were to observe a crime while doing his door-to-door, would he wind up in a Jehovah’s Witness Protection Program??

Question on how the law works. If the effort to explore to why Wafer opened the door to weaken his case – if he was frightened why would do that – is that still valid if when Wafer opened the door a person lunged at him and he fired?

Doesn’t Wafer’s claim to self defense start when the person lunged at him when he opened the door and thus what he did before the person lunged at him becoming moot?

It reminds me of the Zimmerman case where the prosecutors didn’t seem to understand that even if Zimmerman was a loose canon, still it was true that Martin mugged him and he – Zimmerman – did not provoke Martin to do so.

Zimmerman’s behavior before Martin mugged him isn’t really important. Yet the law seems to allow trial lawyers to use Zimmerman’s behavior prior to his being mugged by Martin to credit or discredit him.

The law is a bit of an ass in this way. If the person lunged at Wafer then that’s that. Arguing that Wafer is lying is of course valid, but if he isn’t and she lunged at him then whatever he did before that seems moot and this should be a judge’s instructions but apparently won’t be.

Of course the issue here is this – if its not self defense what is it? Murder? What interest had Wafer in killing her?

I caught commentary re this on one of the morning fluff shows. They played tape of the prosecution grilling the defendant over whether he was crying after the shooting like he was on the stand.

Really stupid line of attack. If I just killed someone, I’m going to be in shock. A lack of tears at that moment doesn’t imply anything.

    Gremlin1974 in reply to Fen. | August 5, 2014 at 3:24 pm

    They don’t have a real case. The law is actually on his side, the facts are on his side, so basically they are “pounding the table”.

      JackRussellTerrierist in reply to Gremlin1974. | August 5, 2014 at 5:05 pm

      That’s my take, too, on what we’ve been able to glean about the trial so far.

      I wonder if the DFP reporters took heat from their local readers and that’s why they shut down much of Andrew’s access. I guess it’s all our fault for posting logically drawn conclusions and speculations instead of expressing emotionally driven, unquestioning sympathy for McBride.

        That’s my guess–more than a few of the “pro-McBride” crowd got seriously (well, for that crowd, “typically”) outraged upon being informed what the law actually is, as opposed to what they’d like it to be.

        At least one had the internet savvy to look me up on the MA Bar’s lawyer’s list, and threaten to seek sanctions. I suggested she do that, as then she’d be writing fewer inane posts for me to read. I guess she took it personally. 🙂

        Regardless, the images were “color” for the posts, not the heart of the posts, and there’s no need to have a paper media organization all grumpy at us.

        As it happens, it’s actually faster to write the posts WITHOUT the images–it takes a long time to upload them, embed each individually, re-size each individually . . . ugh.

        –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | August 5, 2014 at 5:41 pm

          “I suggested she do that, as then she’d be writing fewer inane posts for me to read. I guess she took it personally. :-)”

          Andrew, let me once again complement you on how wonderfully and refreshingly abrasive you can be when the situation warrants.

          It would also be interesting to read about your Libel, Slander, and Defamation civil action if someone was actually silly enough to try to affect your licenses.

          “It would also be interesting to read about your Libel, Slander, and Defamation civil action if someone was actually silly enough to try to affect your licenses.”

          Oh, I don’t lose much sleep over that. 🙂

          –Andrew, @LawSelfDefense

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