NM: Threats Complicate Defense of Self and Others

Gun Watch ^ | 14 December, 2014 | Dean Weingarten

[marktwain]

In this case out of New Mexico, a man was found not guilty, but only after the prosecution did everything they could to convict him.  It would have been a straightforward case of defense of self and others if he had refrained from making frivolous threats before the incident.  From daily-times.com:

AZTEC — After six hours of deliberation Friday, a jury found David Markham not guilty on all criminal charges, including first-degree murder, in the 2011 fatal shooting of Christopher Lucero.

Following a weeklong trial, the jury determined Markham, 60, acted in defense of himself and Leandra Tafoya when he shot Lucero on Dec. 12, 2011, at Tafoya's house, located at 11 County Road 3958 in Crouch Mesa.

Lucero and Tafoya had a long history of domestic abuse.  Lucero had a restraining order against him when he started to beat and kick Tafoya.  Their four year old son asked Markham to help his mother.   Lucero was 34 at the time of his death.  Markham was in the backyard repairing a vehicle when Lucero arrived and told him to leave.  Markham told Lucero that Lucero should leave because he had a restraining order against him.  Markham had known both Lucero and Tafoya since they were children.

It sounds clear cut, but the major problem was that there had been a dispute over a cell phone, which it appears that Lucero stole from Markham.   Over several weeks, Markham told people at least six times that he wanted to kill Lucero.  The jury did not find that this equaled premeditation, but the prosecution used the threats to base their case on.

They even charged Markham with "child abuse" for firing his pistol to defend himself and Tafoya from Lucero.     Lucero's current girlfriend, who was at the scene shortly after the shooting, made an initial statement that the door had knocked her off balance and she had fallen off the step of the residence.  Later, she  changed her story, and claimed that Markham had pointed a gun at her and had pushed her.     The Prosecution added assault and aggravated assault charges based on her changed testimony.  It is likely that the additional charges were added to give the prosecution something to use in a plea bargain.  It is worth noting that the prosecution did not charge Markham with making threats, which is a criminal offense in most states.

In the end, the jury found for Markham, but it was after three years and considerable expense.

There is a lesson hear for anyone who considers the possibility of self defense.   Do not make threats.   They can come back to haunt you in court.   Do not play the Internet commando who says that "It is better to make sure that they are dead, so that there will only be only one story".   Do not type "if I pull out my gun, I will always shoot".   Such remarks are easily found by prosecutors searching your history on the Internet.  Simple screen names and passwords are of little protection from a professional and legally sanctioned search.

Consider what Markham's angry words cost him when he was forced to act.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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[Ruy Dias de Bivar]

I remember seeing that sign when I lived in Farmington.

[OneWingedShark]

Good manners and common sense are always valued on Free Republic.

Well, unless you happen to disagree with the War on Drugs, that's a sure way to be called everything from anarchist to druggie, even if you show your reasoning.

[yefragetuwrabrumuy]

Long ago, police learned that the same situation can be truthfully testified to in court in two ways. But one of the ways can open the door to unreasonable cross examination casting doubt on your testimony, and the other does not, as long as you do not let your words be twisted by the attorney.

So the police developed a stylized way of testifying, to express the facts, but in such a way that their testimony was unimpeachable.

Similar rules apply to ordinary citizens, but most do not realize it, so their honest testimony is corrupted by the attorney during cross examination, even falsely implicating them in a crime.

This especially applies to the defensive use of guns.

If you are defending yourself against an attacker or home invader, of course you are afraid. It is your dominant, instinctual reaction. So in testimony you can very accurately and reasonably say that you were in fear for your life.

However, in cross examination, attorneys will try to get you to rephrase the truth, parse the truth, admit to any other state of mind, or some other trick to get you to testify differently from the basic truth, that you were in fear for your life.

This is why you must not waver from telling the truth. If they push too hard trying to force you to waver from the truth, you can even directly appeal to the judge, assuming that your attorney is just sitting there like a bump on a log.

“Your honor, my state of mind was that I was in fear for my life. That is my testimony.” This legally means that the question was “asked and answered”, so re-asking the same question is in effect badgering.

[Secret Agent Man]

reason matters less and less here. if people want to attack you they just ignore the parts they want to ignore and attack you.