Frank Zito says he shot police because they broke his door{ unreasonable search and seizure }

SALISBURY - "If they didn't break into my door, I wouldn't have shot them," Frank Zito blurted out Wednesday at a hearing to suppress evidence in Zito's murder trial.

Attorneys for both sides argued in Wicomico County Circuit Court whether several pieces of evidence, including several alleged admissions by Zito, should be allowed in the jury trial. Circuit Judge Donald C. Davis said he should issue a ruling on the motion to suppress evidence sometime today.

Zito, 41, of Centreville, faces the death penalty on two first-degree murder charges and several other felony and misdemeanor charges.

Police allege that he shot and killed Centreville Patrolman Michael S. Nickerson and Dfc. Jason Schwenz, of the Queen Anne's County Sheriff's Office. The two officers went to investigate a noise complaint in February of 2001 when police say Zito shot both officers with a shotgun.

Zito has pleaded not guilty and not criminally responsible to the charges against him.

Judge Davis heard testimony from several police officers and Wicomico County Detention Center employees as to what happened Feb. 13 and Feb. 14, 2001.

Maryland State Police Trooper Corey Skidmore was the first officer to testify and the only witness to the shooting. Skidmore said he arrived to back up Nickerson and Schwenz who were trying to get Zito to come out of his house.

After being threatened, the officers got a key to Zito's trailer from his mother, Betty Zito, who was also Zito's landlady, Skidmore said. He said Zito's mother told the officers to get Zito out "by any means necessary."

After the three officers broke through a storm door and entered Zito's screen porch, Schwenz opened the front door with the key, Skidmore said.

As the door opened, Schwenz was hit with the first shotgun blast, followed by Nickerson, who was thrown backward, Skidmore said.

Skidmore said Zito had not seen him on the porch, so he waited for Zito to come out, sprayed his eyes with pepper spray and arrested Zito.

Maryland State Police Tfc. Brian Fisher was the officer who officially arrested Zito after the shooting, Fisher said. He testified that he took Zito away from the shooting scene and back near his patrol car.

Fisher said Zito was yelling "Nazi Gestapo" at the officers and complained that someone broke into his home. Fisher said Zito also told him he had put a shotgun under his couch.

At that point, Fisher said, he arrested Zito and read him his Miranda Rights. Though one of the Miranda Rights is the right to keep silent, Fisher said Zito kept talking.

"'I thought I was protecting my home,' " Fisher quoted Zito as saying. " 'I didn't know they were police until I got outside.' "

Robert E. Williams, an investigator for the Queen Anne's County State's Attorney Office, formally interviewed Zito for about an hour that night, Williams testified. Again Zito was told he could remain silent. But Zito "just started talking," Williams said.

Williams said Zito complained that police were trying to "beat (him) up" and threaten his mother. Then, Williams said, Zito described the events leading up to the shooting.

"'When they went to the second door, I got the 12-gauge and took the safety off,'" Williams said Zito explained. Then, as the door opened, "'I just shot.'"

Williams said Zito talked with very little questioning by him or two other officers present at the interrogation.

Several other officers testified that Zito admitted shooting the two officers with no questioning. Two officers at the Wicomico County Detention Center also testified that they overheard Zito admit to the shooting while talking on the jail's telephone.

Defense lawyers later called Betty Zito to the stand. Wheeled into the courtroom in a wheelchair, Mrs. Zito was too weak to hold up her right hand to be sworn in. She lifted her right hand with her left hand as high as she could while being sworn in.

She testified that her son has his own trailer, which he rented from her. She said his rent is no different from the rent for the eight other trailers on her property.

She said Frank "wasn't so good" on Feb. 13, a condition made worse by the police breaking his storm door. She said police threatened to "tear gas" Zito's home unless he came outside.

She sobbed lightly as she described her frustration that day, trying to get someone on the telephone to help her and her son.

She said the only reason she gave the officers the key to Zito's trailer was so they wouldn't break his door and "tear gas" him.

Then she said she went around the side of Zito's trailer to peer inside and find him. That's when Mrs. Zito heard the "pop, pop" of the shotgun blasts, she said.

As defense lawyer Patricia Chappell wheeled Zito's mother past him and out of the courtroom, he gently put his hand on his mother's knee.

In their closing arguments, defense lawyer Brian Shefferman argued that Zito's Fourth Amendment right against unreasonable search and seizure was violated by the three officers. He said Zito did not consent to the officers coming on his premises even though they entered his enclosed porch.

Shefferman argued that all evidence that came about because of the "illegal" entry to Zito's trailer should be suppressed during the jury trial. Most of the testimony that would be lost if this motion were to be granted would be Trooper Skidmore's description of the shooting and the events leading up to it.

Shefferman also argued that statements that Zito made to officers throughout the night should be suppressed because Zito was injured when he made them. Officers testified earlier that Zito was bleeding from a cut on his face that night. >{?

II Homicide
A Intentional Killing
1. Murder: the unlawful killing of a human being with malice aforethought (express or implied).
a) Elements of Malice Aforethought
i. Intent to kill (express malice)
ii. Intent to inflict great bodily injury
iii. Reckless indifference or
iv. Intent to commit a felony
ii, iii and iv are “implied”
2. Voluntary Manslaughter: an intentional killing distinguishable from murder by the existence of adequate provocation. No malice aforethought.
a) Elements of Provocation
i. arouse sudden and intense passion in the mind of the ordinary person such as to cause him to lose his self-control.
ii. must have been provoked.
iii. must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool.
iv. D in fact did not cool between provocation and killing.
b) When Provocation is adequate
i. Being subjected to a serious battery or a threat of deadly force; and
ii. Discovering one’s spouse in bed with another person.

All the elements for murder are present, none of the statutory provocation exceptions needed for a manslaughter defense fit the crimes.

No wonder the Grand Jury was able to decide on a murder charge so quickly and easily.

Not only did the officers murdered by Zito not employ deadly force against him, the surviving officer subdued the killer with pepper spray.

Perhaps you should mail Zito some of your legal arguments.

Please do.

All the elements for murder are present, none of the statutory provocation exceptions needed for a manslaughter defense fit the crimes.

As usual, you're only looking at the points which would lead to his guilt, and completely ignoring anything that would lead to his innocence. In this case, you're completely ignoring the self-defense defense, which means your argument falls under the logical fallacy of False Dilemma. You've convinced me that you don't want him to be innocent, and you'd do anything to insure his guilt. You sir, are dishonest. When presented with the evidence, as predicted, you go off on a tangent, one which still doesn't look at both sides of the issue. You haven't looked at the illegal entry that the police have done. When shown that Maryland and other states' law allows for self-defense in one's own home, you completely ignore it and toss out ad hominem attacks, such as You mean shotgunning two police officers standing on your porch asking you to turn down your stereo, because they "broke your door" to the porch? No, only a lunatic or a blind zealot could believe such a thing without even applying the illegal factor of what they did. When provided with an argument, you've repeatedly missrepresented it, even after you were corrected. And you've completely lied on one point. This doesn't do your credibility for rational discussion much good.

Perhaps Zito is guilty and miss-using self-defense. In which case, they should lock him up and toss away the key. However, perhaps he's innocent and self-defense is a valid defense in this case. However, you'll never be able to comprehend this if you continue to reject the evidence for his innocence out of hand.

I'll give you one more chance though. 1) What the police did: legal or illegal? 2) Does a person have a right to self-defense in one's own home? And 3) Could the actions of the police justify the actions for self-defense?

Answer in a rational manner. I don't mind what your answers are, as long as they're rational and not emotional (like all your other arguments have been).

BTW, I have enjoyed this conversation with you. However, trying to converse rationally with an emotionalist has it's limits.

-The Hajman-

you're completely ignoring the self-defense defense

The actual statute:

b) When Provocation is adequate
i. Being subjected to a serious battery or a threat of deadly force; and
ii. Discovering one’s spouse in bed with another person.

When the law is against you, pound on the facts. When the facts are against you, pound on the law. When the law AND the facts are against you, pound on the table. It's all you have left.

1) What the police did: legal or illegal?

Not entirely clear in this case.

2) Does a person have a right to self-defense in one's own home?

Yes, but there is a legal duty to employ the minimum force necessary to accomplish said self-defense. In short, one does not get to turn one's doorway into a free-fire zone simply because of a perception (false or real) of illegal entry. The resident was apparently "lying in wait," ready to engage any target that appeared.

And 3) Could the actions of the police justify the actions for self-defense?

Unlikely in this case. The actions of the police officers are not unquestionably illegal, and the application of force appears to have grossly exceeded the standard for applying deadly force.

This guy's best bet is to plead diminished capacity; it looks like his pride is doing the talking here, though.

When the law is against you, pound on the facts. When the facts are against you, pound on the law. When the law AND the facts are against you, pound on the table. It's all you have left.

Yes, that's what you're doing, isn't it? Completely ignoring self-defense, and the illegal actions of the police again I see. BTW, the art of trying to make something look bad by pointing out only the negative arguments for it is called propaganda. And you do it well. I could make water look like something you'd want to outlaw using the same technique (it's already been demonstrated, so your 'that's stupid!' arguments won't work).

It's apparent you'll do anything to make sure this guy is guilty, and the police can do no wrong in your eyes. When presented with the evidence, you've turned and ran down other tangents. I gave you another chance, narrowed the discussion deliberately, but you still desided not to stay on the specific subject, only restating your failed arguments over and over. It's been fun, but I think I'll waste my time on people who think rationally. Have a good day.

-The Hajman-

Completely ignoring self-defense

Again, the actual statute:

b) When Provocation is adequate
i. Being subjected to a serious battery or a threat of deadly force; and
ii. Discovering one’s spouse in bed with another person.

None of the statutory provocation exceptions needed for a manslaughter defense are present.

"They broke my porch door so I gets to shotgun 'em."

Only a lunatic or a blind zealot would consider that a defense.

Unlikely in this case. The actions of the police officers are not unquestionably illegal, and the application of force appears to have grossly exceeded the standard for applying deadly force.

I would dissagree about the police actions, but under Maryland law, you may be correct on the application of force in this particular situation. As I said above, it may be under interpretation by the jury or judge.

This guy's best bet is to plead diminished capacity; it looks like his pride is doing the talking here, though.

Now that I would agree may have be a probable situation.

-The Hajman-

Only a lunatic or a blind zealot would consider that a defense.

Yup, incapable of rational thought and dealing with the evidence that points to his innocence. I gave you the actual law in both tort and criminal law, in Maryland law and other, and you simply ignore them, attacking them emotionally instead. And you come up with this statute, giving no reference to it, and calling it the actual statute. Oh well, been nice talking with you.

-The Hajman-

Well, Zito may offer that defense, but a jury of his peers is extremely likely to throw it out--even if Zito was unquestionably correct on the Fourth Amendment issue (which, IMNHO, he isn't--at least, not to a level of absolute certainty).

Most folks do NOT view blasting away as soon as the door opens to be a reasonable application of deadly force under any circumstances. With the evidence at hand, I would certainly vote convict on manslaughter charges, and would probably convict on capital murder charges unless a LOT of extenuating circumstances are present that I do not see.

Well, Zito may offer that defense, but a jury of his peers is extremely likely to throw it out--even if Zito was unquestionably correct on the Fourth Amendment issue (which, IMNHO, he isn't--at least, not to a level of absolute certainty).

I might agree with the first, however why don't you think the police did something illegal in this siutation? In other words, why do you think they had athority to do what they did? And what was the probable cause for that athority?

Most folks do NOT view blasting away as soon as the door opens to be a reasonable application of deadly force under any circumstances. With the evidence at hand, I would certainly vote convict on manslaughter charges, and would probably convict on capital murder charges unless a LOT of extenuating circumstances are present that I do not see.

Possibly, however they did break down a door trying to get in before they opened the second. On a personal note, assuming I didn't know who they were (it's hard to say what I'd do if they claimed to be police), I wouldn't hesitate to protect myself (and others). And I personally know a good number of other people that would feel the same way. But that's just on a personal note.

-The Hajman-

I might agree with the first, however why don't you think the police did something illegal in this siutation? In other words, why do you think they had athority to do what they did? And what was the probable cause for that athority?

In short, he upped the level of confrontation. He demonstrated that he was manifestly a danger to the officers (at least), and quite probably the community at large.

If the police failed to secure a warrant, then it is they who must bear the responsibility for upping the level of confrontation. Warrantless break-ins by the police are a manifest danger to citizens specifically and to the nation at large.

Zito threatened the officers who were in performance of their official duties. In short, he upped the level of confrontation. He demonstrated that he was manifestly a danger to the officers (at least), and quite probably the community at large.

This is true. However, did the police have athority to breaking and entering? I would have to say no, without a warrant, unless someone was in immediate danger. The main question is, did the police have the athority to do what they did? I wouldn't agree that they did in this case. Plus, their actions put them into a more dangerous situation; one that could have been avoided if they had gotton a warrant or backup (if the situation demanded that).

-The Hajman-

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