Law of Self Defense: Man Shoots Home Intruder, Charged with Murder, Accepts Manslaughter
Taking the plea deal can be the best move even when the law favors your case
This Case of the Week is on an interesting defense of dwelling situation out of Louisiana that illustrates both that the legal risks for use of force are never zero, no matter how favorable the law appears to be to the defender, and also why a defender with the law on their side might nevertheless agree to plea to a felony conviction with a multi-year sentence.
Facts of the Case: Simple View
The basic facts of the case are that the victim, Ricky Moser, armed himself with an expandable baton, went to the dwelling where the defender, Kory Mattox, was present, attacked the resident who answered the front door, and unlawfully entered the residence to continue his attack on the defender. At that point, the defender shot and killed the victim with a 12 gauge shotgun. The defender was then charged with first-degree murder.
Law of the Case: Defense of Highly Defensible Property
Louisiana, where these events took place, has among the strongest defense of highly defensible property laws in the country. The relevant statute is §14:20. Justifiable homicide.
First, it includes not just one’s dwelling, but also one’s place of business and occupied motor vehicle within the definition of highly-defensible property, which is about as broad as that definition gets, anywhere.
Second, whereas many states allow for the use of deadly force against an intruder who has forcibly and unlawfully entered highly-defensible property, Louisiana does not impose the requirement that the entry was forcible, nor does it require a demonstration that there was an unlawful threat to human life. A merely unlawful entry into highly-defensible property is sufficient to justify the use of deadly defensive force. (One condition, not apparently relevant in this case, is that this justification is not available if the property is used for drug dealing.)
Defender Gets Charged with Murder Anyway: How?
Given the facts of this case—the victim here clearly had unlawfully entered the home, and indeed did so with the clear intent to attack those present—and the Louisiana highly defensible property law—that a mere unlawful entry into highly defensible property authorizes the use of deadly defensive force—how is it that the defender in this case found himself charged with first-degree murder for having killed the victim?
The difficulty for the defender is that he wasn’t just some innocent person sitting at home minding his own business when a violent lunatic tried to force himself into the defender’s home. (A more detailed reporting of the facts of this case can be found here.)
Rather, the defender, who was dating the victim’s estranged step-daughter and working in concert with daughter and the victim’s estranged wife, had been engaged in a high-intensity effort to drive the victim crazy. I write those words in the most literal sense, this campaign against the victim actually drove the victim to be institutionalized. It was shortly after the victim’s release a stay in a behavioral health center that the victim forced his way into the defender’s home and was killed.
In the few hours immediately prior to the killing, the defendant had escalated his taunting of the victim to a level involving scores of text messages and hundreds of phone calls.
It was this goading that apparently led to the intoxicated victim showing up in a rage at the defender’s home, leading to the killing of the victim.
And it was this goading that led the prosecution to bring a charge of first-degree murder against the defender, despite Louisiana’s potent defense of dwelling law described above. As reported in The Advocate news story, the prosecutor brought the murder charge on the legal theory that the defender had brought on his own trouble and therefore couldn’t rely on Louisiana’s defense of dwelling law (improperly labeled “stand your ground” law in the news story, of course).
The Legal Risk is Never Zero
Frankly, this doesn’t strike as a very compelling argument for the prosecutor, given the plain language of the Louisiana defense of dwelling statute, and in any case I would not think that the special provisions of the statute would be required for an acquittal in this case.
After all, had the victim attacked the defender with an expandable baton out in the street, much less in a dwelling, it would likely have constituted a straight up deadly force attack against which a straight-up legal defense of deadly force self-defense would likely be successful.
Sending mean words to someone via text and phone calls, as stupid as such conduct is, ought not strip you of your right to defend against a deadly force attack by that person. Under the facts and law in this case, I would think the defender would be in a very secure legal position with respect to a first-degree murder charge, in particular.
Nevertheless, that’s the charge with which the defender was hit, and that in turn reflects the simple reality that no matter how favorable the facts and law may be, the legal risk of a serious prosecution is never zero. The prosecution is free to use their discretion to bring even a weak case to trial, as they did here.
Make sure the stakes are worth the risks, folks.
Defendant Eventually Pleas to 10-year Manslaughter
Another interesting facet of this case is that the defendant ultimately reached a deal with prosecutors in which he avoided the first-degree murder trial in exchange for accepting a manslaughter plea carrying a 10-year-sentence.
Why do that, you might ask, when he has such a strong legal case to take to trial?
Well, lots of reasons. First, there’s always a chance, however slight, of a conviction at trial, and a conviction on first-degree murder would have seen the 26-year-old defendant spend the rest of his day in prison at hard labor. In Louisiana. A 10-year manslaughter sentence looks pretty good compared to that.
Second, the defendant wasn’t really looking at another ten years, because he has been sitting in jail awaiting trial for nearly 3 ½ years already, and that time will be credited to his 10-year-sentence.
Third, the defendant would be eligible for parole on a manslaughter conviction where he wouldn’t be under a first-degree murder conviction, and eligible for parole after serving about two-thirds of his sentence, a status he’ll achieve in only about another two to three years.
So, from the defendant’s perspective at this point in the process he’s looking at choosing between either agreeing to do another couple of years and getting out of jail before he’s 30 years old on the one hand, or a prospect of a life sentence at hard labor if he loses at trial.
Added to this as well is that the defendant may not have the resources one might like to mount an effective legal defense against an aggressive prosecutor in a life-sentence case. If you don’t have many resources to bring to the fight, especially compared to the prosecutor’s effectively unlimited resources, the prospects for a win diminish even with the law and facts on your side. (That’s a key reason to consider some form of self-defense “insurance,” folks, about which you can learn a lot more at lawofselfdefense.com/insurance.)
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
P.S. Be sure to join us TODAY for our new self-defense law Q&A show, broadcast LIVE at 3PM PST, “Calling the Shots,” hosted by Alien Gear Holsters on their Facebook page at: facebook.com/aliengearholsters. You can submit your questions for consideration for the show at: lawofselfdefense.com/cts. If you miss the LIVE show, you can catch the recorded replay at: lawofselfdefense.com/blog.
[Featured image consists of police mug shots of the defendant, Kory Mattox (l.) and the “victim”/intruder, Ricky Moser (r.)]
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Comments
This case is interesting on many levels.
First, is the status of the domicile in question. The domicile was inhabited by Moser’s wife. They were not divorced and there is no mention of any restraining order. So, it is possible that Moser, as the spouse, would have a legal right to enter the domicile.
Second, is the exchange between Mattox and Moser, just before the incident. Moser had asked Mattox to text him his (Mattox’s) address so that he (Moser) could come to his location and kill him. In surrounding texts, Mattox had threatened to shoot Moser with a shotgun. As Mattox subsequently shot Moser, with a shotgun, upon his arrival, there is a very strong appearance that Mattox enticed Moser to the domicile in order to kill him. This is buttressed by the fact that Mattox was intimately familiar with Moser’s mental state and anger management issues. And the baiting nature of Mattox’s texts make it seem as though Mattox was the aggressor, not Moser. If Mattox can be cast as the aggressor, then he loses the protection of self defense, until he makes a good faith effort to retreat.
This is why Mattox was charged with premeditated murder and why he ultimately pled guilty to manslaughter. This was nowhere near a legally justified use of deadly force and very close to premeditated murder.
I thought the law in general is that “words” (or texts) can never justify the use of physical force or in this case the use of deadly force? You are stating that words (or texts) can make one an aggressor for self-defense purposes, but I didn’t think this was the law? If words spoken face to face can never justify the use of deadly force, then how can texts, not face to face, justify the use of deadly force. You are arguing that words/texts can justify the use of deadly force. The dead guy was using deadly force in response to words/texts.
How can you differentiate your analysis from a situation where the words/texts are not spoken directly to the person but to others. Then the person spoken of hears of the words/texts and becomes enraged and shows up at the speaker’s home and uses deadly force to break in and attempt to attack the speaker? Your logic would extend to make the speaker’s words/texts to others in the community a basis for denying the speaker a right of self defense at their home??
Uh-huh. The distinction between “words” and “actions” has some, but not all, confused. Per TheAdvocate,
Loyola law school professor Dane Ciolino acknowledged that “there’s not a whole lot of law in this area,” but he argued that for someone to be deemed an aggressor, they generally must present an “imminent and present threat of physical violence.”
“Generally you’re talking about physical aggression when you’re talking about being an aggressor,” he said. “It doesn’t fit if we’re just talking about offensive language, intimidating language.”
You have to look at the specific incident, not generalities.
In this case, Mattox’s “words” [delivering words is an “action”] is analogous to standing outside a fence and aggravating a vicious dog. You are enticing the dog to attack you. But, Mattox went further. By providing his location to Moser, who had indicated that he was going to come over and do harm to Mattox, Mattox essentially opened the gate to the fence so that the dog could reach him. In other words, he actively participated in providing the means necessary for Moser to commit his crimes. Mattox was a participant, not simply a victim. If you seemingly agree to fight with another person, this is a mutual affray in which both may assume the role of aggressor. But, it is more complex than that.
Moser may actually have had a legal right to enter the home, as he was still lawfully married to the principal tenant, his estranged wife. Striking his daughter, in the head with a collapsible steel baton, would constitute the use of deadly force, but there is no mention that this attack continued. If it was over, it would no longer constitute grounds for the legal use of deadly force, in defense of another. This leaves Moser vs Mattox. And, this is where timing becomes important. Moser, by the embedded news report, was shot in the chest, with buckshot, and fell, face down just outside the front door. So, the distance beween Moser and Mattox becomes an issue, as Moser was not armed with a distance weapon. Also, his point of rest may well indicate that he did not have time to actually set foot inside the domicile, before being shot. So, when did Mattox actually arm himself, with the shotgun; before or after the door was opened. The report would suggest that he armed himself before the door was opened. Then you have the recent texts sent by Mattox. At best, they clearly indicate that he was baiting an unstable man, who was known to be violent, unnecessarily. During the exchange, mattox threatened to shoot Moser, with a shotgun, if Moser came near him. Then Mattox actually told Moser where to find him. Upon his arrival, Moser was shot by Mattox, with a shotgun. And therein lies Mattox’s problem.
Given their history, Mattox knew, or should have known, that Moser would react, as he did, to the taunts of Mattox. Mattox should have known that Moser would came to the location which Mattox specified and would attack. Mattox then carried out HIS threat, to shoot Moser, upon Moser’s arrival. This strongly suggests that Mattox enticed Moser to come to the house for the purpose of killing him; premeditated murder [1st degree homicide]. Knowing Moser, as he did, it is likely that Mattox armed himself, upon Moser’s arrival and shot him, even if he (Mattox) had not planned for Moser to come to his location; unpremeditated murder [usually 2nd degree homicide]. At the very least, as Mattox was an active participant in the text war with Moser, and knowing Moser as he did, Mattox should have assumed that there was a strong likelihood that Moser would come to his location and attempt to harm him. By enticing Moser to his location, if Mattox only intended to use the threat of the shotgun as a deterrent, using it after placing himself in that position, to begin with, could very likely result in a conviction for manslaughter.
Words do not justify the use of deadly force. However, if the delivery of those words are designed to result in an expected physical response, and produce that response, this can strip the deliverer of those words of legal protections.
Most self defense use of force cases, are pretty cut and dried; with a clear victim using for to protect himself from a clear aggressor. Others, like this one, are not so clear cut. It is always best to use your head and avoid becoming involved in situations such as the above.
“Moser, by the embedded news report, was shot in the chest, with buckshot, and fell, face down just outside the front door. So, the distance beween Moser and Mattox becomes an issue, as Moser was not armed with a distance weapon. ”
WTF is this?
“I’m sorry son, but he had a knife, you had a rifle and he was 25 feet away. You had to wait for him to get closer before you could shoot the violent thug. So we’re going to charge you with murder.”
Oh how I wish to read the jurisprudence and actual law citations to that little niblet of “self defense”. I wonder if there’s been any actual testing of people with knives vs people with guns…
There has been a lot of testing. The test was originally formulated as the “Tueller drill.” This drill determined that a contact weapon armed person can close 21 feet on a person armed with a firearm (when the firearm is holstered) before the firearm can be effectively employed. Naturally, this distance is dependent upon the skill of the gunman – how fast can he draw – and the condition of carry – is there a concealment garment covering the gun that must first be moved out of the way, and in what kind of holster is the gun being carried (some security holsters can slightly slow a draw).
This video shows a firearms expert, Instructor Zero (he’s Italian, that’s why the broken English) and knife expert Doug Marcaida, investigating the dynamic between two experts and discussing how the dynamic can vary depending on the level of skill of the opponents (esp. the skill of the gunman).
In spite of his skill, Zero finds that Marcaida can easily close the distance before a firearm can be brought to bear, and he then devises a very interesting tactic that permits the gunman to confound the knife attacker.
https://www.youtube.com/watch?v=2fjMpn7JCJ0
If you’re wondering about their skill levels, watch any other videos of Zero and Marcaida. Zero can obviously shoot, and Marcaida moves a knife like flowing water.
A very brief video on the Tueller drill:
https://www.youtube.com/watch?v=8djH9JjUsyU
I told you self defense law was complicated.
There are two problems in this case.
First is whether Moser actually “entered” the residence. In this case, it appears that Moser was shot nearly immediately agfter the door was voluntarily opened for him. If such was the case, he may not have “forcibly entered” the residence, even though he did strike his daughter with the collapsible baton. If he did not forcibly enter the residence, then deadly force has to be based upon imminent attack using deadly force.
So, the second point is, was such an attack imminent? Now, Moser was armed with a potentially deadly weapon [it is usually classified as a dangerous weapon, not a deadly weapon, in most jurisdictions]. He had struck his daughter in the forehead, which was a felonious battery, which would justify the use of deadly force to prevent or stop such an attack. However, we do not know if such an attack was continuing. If it wasn’t ongoing, than use of deadly force was not justified. And this is where the positions of the principles, Mattox and Moser, were standing, as well as what they were armed with becomes important.
Moser is armed with a contact weapon. As the name implies, the weapon can only be used, effectively, when the wielder of the weapon is in contact with his target. Therefor, Mattox may or may not have been in imminent danger of a deadly force attack from Moser, depending upon the distance separating them. In this case, distance is an important factor. Mattox was armed with a distance weapon. His weapon could be used from a distance, as many as several tens of yards. There is also the issue of intervening barriers and their effectiveness. Then there is the issue of whether Mattox was armed when the door was opened or if he fetched the shotgun after the door was opened. This can be a double edged sword, for Mattox. If he had to fetch the shotgun, after the door as opened, then it brings into question what Moser was doing during that time. As he fell just outside the front door and his daughter did not suffer significant injury, this does not sound as though Moser entered the residence or that any immediacy existed in Mattox’s use of deadly force. On the other hand, if Mattox was armed when the door opened and he shot Moser on the threshold, given the content of his texts immediately before the incident, it is realistic to suspect that he intended to shoot Moser upon his arrival.
Now, as I said before, most deadly force self defense cases are really pretty simple. There is usually a clear aggressor and a clear victim. In this case, no such dichotomy does not exist. There is ample evidence that Mattox intended to kill Moser and he did, in fact, kill him, by luring him to Mattox’s location, and shooting him. The best way to stay out of these situations is not to become involved in thr first place. At best, Mattox knowingly poked a bear and ended up in a situation where he placed himself on risk, both physically and legally. At worst, he lured Moser into a situation where he could legally kill him.
Dave, the Tueller Drill is not applicable here.
When facing a deployed firearm, in the hands of an average person who is primed to fire, most attackers cove no more than 7-10 feet before they are shot. It takes a man from 1.25 to 2.5 seconds to cover a 21 foot distance from a standing start. It takes a man, or woman, from .35 to .5 seconds to fire a round once he has identified the threat. This is essentially all reaction time. What the Tueller drill is used to illustrate is that a man will usually take from 1.5 seconds to 2.5 seconds to draw a pistol from the holster and fire one shot. However, other environmental factors can invalidate the premise of the Tueller Drill. Such things as intervening barriers can force an attacker to take longer to reach the defender or even keep him from reaching him.
Now, in this case, the door was opened and Moser struck his daughter with the baton. And here is where timing is important. If Mattox did not have the shotgun in hand, at that point, Moser would likely have closed with him, before he could retrieve it from the bathroom or, if Moser did not stop Mattox from retrieving the shotgun, Moser’s body would most likely have been found inside, perhaps deeply inside, the domicile. Instead he was found, after taking a full charge of buckshot to the chest, just outside the front door. This suggests that Mattox most likely had the shotgun in hand, and possibly aimed at the doorway, when it was opened and may have shot Moser before he actually entered the domicile.
TheAdvocate—
The estranged couple had mutual stay-away orders in place, which both had violated in the past.
Of course the intrepid reporter managed to work the irrelevant phrase “stand your ground” into his short article five times, so I have little confidence in his grasp of essential details.
It sounds to me like the “victim” got what he deserved and that society is better off.
Don’t associate with losers, even if you are one yourself.
Both lost in this case.
One, his life and his wife. The other, his freedom.
Andrew, you can really dig up the most bizarre case to make your points! I would sum this case up as a “Provocation” and immediately see that when someone if provoked into an act, the provocation must be considered as the trigger to the crime no matter where it takes place. Sort of “Never hit a wasp nest with a stick” proverb.
I think its clear this guy settled because he had no money for a defense.
TheAdvocate—
Two earlier trial dates were postponed because of a shortage of jurors. Mattox has remained behind bars since his indictment in late 2015, unable to post $500,000 bail.
Isn’t it insufferably quaint that the state’s incompetence at finding jurors lets it keep the accused incarcerated without bothering with the expense of a trial.
Yes, can’t afford bail, can’t afford lawyers, I can almost see how room and board at state expense might seem like a reasonable offer.
The gas-lighting and baiting are problematic, but a good defense . . . yeah, I wondered if money was at the root of his plea, too.
Mattox saw the flash of headlights outside the window and warned Nicolosi, but she opened the door anyway. Moser stood outside, gripping the baton.
Doesn’t sound like a terribly forcible entry there.
But when the intruder is trying to enter “unlawfully and forcibly,” Louisiana law presumes the killing was justified.
“Forcibly”, maybe not so much. “Unlawfully”, probably, given the stay-away orders.
I keep guns and both German Shepherds and Rottweilers to control both four and two legged varmints. I also bait traps, and this sounds like baiting a trap to get rid of a dangerous varmint.
sounds like both parties were dangerous varmitts
In related news, Cherokee County, NC has declared itself a “Gun Sanctuary.” Think that’ll spread?
https://tinyurl.com/yxu3le67
Louisiana sounds like a real hoppin’ place. The estranged wife—who did manage to raise bail, at least for herself—has subsequently dodged a couple of rifle bullets in an apparently unrelated incident.
“I wonder if there’s been any actual testing of people with knives vs people with guns…”
Actually, there has been quite a bit of testing. The most recognized was done by Tueller.
https://en.m.wikipedia.org/wiki/Tueller_Drill
https://www.armedcitizensnetwork.org/en/the-tueller-drill-revisited
http://www.hendonpub.com/resources/article_archive/results/details?id=3947
Very misleading headline! When details are read, clearly not self defense. Similar to supermarket tabloid tactics.
Any broad look, over time, at self-defense will include claims of self-defense that don’t add up, as well as ones that do. Branca’s earned his goodwill here many times over. You should search more of his posts/ articles or even read his book. He’s a wealth of information and a good and interesting writer.
You must be new here. The “Law of Self Defense” in the headline refers to my area of legal expertise, as well as the formal name of my legal practice, generally, not to this case in particular. That said, a straight-faced self-defense defense certainly can be made in this case.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
http://lawofselfdefense.com/blog
Yes, it was a shame you had to drive all this way for nothing. Was it hard to park?
I think, put very briefly, the separation from a traditional view of “fighting words” is that there is no immediacy. Texts and phone calls are viewed in the same ancient manner as written letters, so the opportunity to cool off is presumed to be present. That’s the assumption. The shooter sought to blur all kinds of lines while hiding behind the law.
Unfortunately, responding to taunts – even at this obscene level – is a good way to get yourself shot and killed, as was the case here. I wonder if the shooter felt, all in all, the entire thing was worth the time invested (including jail time). Perhaps so.
batons and stones may break my bones but words will get me shot……
huh…
On the one hand, the guy who was killed could have gotten a restraining order, destroyed his phone, changed his number, etc. Physically assaulting someone is never a good idea or legal justification for phone harrassment.
On the other hand, the kid who killed him was way out of line in the harassment. Play stupid games, win stupid prizes.
Either way, the shooter is mentally unhinged as well and successfully drove someone crazy. He deserves to be away from society for awhile. Tough case for both prosecutor and defendant. I’d hate to be on that jury.
When dealing with the mentally ill, distance is your friend. There is never an upside to inviting them to the house. Likewise, visiting them is right-out too.
It is interesting that I recently suggested to a guy, who was being harassed by his ex on social media and via phone/text, that he simply inactivate his social media accounts and to spend $20 on a burner phone with a new number (or just block her number on his existing phone and not answer any calls not in his call book). Amazingly, he actually did those things and appears much happier. I told him that in a month or two of not getting what she wanted that she’d get bored and move on. In the meantime, she isn’t living in his head rent free. If only Moser had a buddy like me, he’d be alive and likely much happier. But I can’t be everywhere.
MajorWood…
You should open up a chain of “Good Buddy” franchises, then you could be everywhere..! 🙂
I guess Moser was a big guy and a violent drunk, the boyfriend
(according to his Aunt) is 5’5″ 125 lbs. If I was a little guy, I would consider harassing a large violent drunk…a bad idea.
A friend of my daughter was lamenting the fact that his ex was tormenting him with texts/calls/social media posts…when I suggested he drop social media and change his number or block her number, you would have thought I’d said, “Cut off your ear and poke out your eyes”.
(some people never learn)
this article was pretty bad due to the omission of some relevant information as to why the defendant was charged. a reader should not have to read the comments to get the actual story.
Let me know where to send your refund. 🙂
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
http://lawofselfdefense.com/blog
Mr Branca…
According to the Advocate, the mom and step-daughter may be charged with “inciting a felony”…do you think the prosecutor will really try to do that ?
Apparently, the boyfriend texted and called the dad almost 100 times in a few hours…that sounds like a group activity !
(You know…mother/daughter/boyfriend-family fun)
There was no defence against the conniving hoochies.
The one thing that I think everyone can agree on is that it is a travesty that he waited so long for a trial. Shameful.