Posted on 04/05/2002 8:59:46 PM PST by freespeech1
Frank Zito says he shot police because they broke his door
* Outburst comes during evidence suppression hearing; ruling due today
By: BRIAN HAAS, Staff Writer April 04, 2002
FRANK ZITO ... faces death penalty
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.'"
"'I know I snagged that bastard,'" said Zito, according to Williams.
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.
"Goodbye," she said as she passed from the courtroom.
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. >{?
Shameless hypocrite.
according to him there had never been any wrong done by a LEO, unless it is not shooting somebody to death quick enough.
he one time argued about some guy being stomped to death by five cops, while restrained, was justified.
texas fellow,looking through his old posts, seems to be one of the old nanny states boys.
wants a cop on every corner to be telling folks what to do.
the old there should be a law, and if it conflicts with the Constitution, oh well, did need that old piece of paper any way.
one thing that was amusing is that he seems real concerned about his masculinity.
he keeps making these homophobic comments, like he is attempting to cover his insecurity about his own sexuality .
might be where the JBT stuff comes in for him, all those men wearing shiny leather boots.
MURDER, FIRST DEGREE - In order for someone to be found guilty of first degree murder the government must prove that the person killed another person; the person killed the other person with malice aforethought; and the killing was premeditated.To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life.
Premeditation means with planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough, after forming the intent to kill, for the killer to have been fully conscious of the intent and to have considered the killing.
_______
DEFENSE, SELF-DEFENSE - A defense to certain criminal charges involving force (e.g. murder).
Use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or another against the immediate use of unlawful force. However, a person must use no more force than appears reasonably necessary in the circumstances.
Force likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm.
The Right To Protect One's Person And Property From Injury.
It will be proper to consider: 1. The extent of the right of self-defence. 2. By whom it may be exercised. 3. Against whom. 4. For what causes.
As to the extent of the right: First, when threatened violence exists, it is the duty of the person threatened to use all prudent and precautionary measures to prevent the attack; for example, if by closing a door which was usually left open, one could prevent an attack, it would be prudent, and perhaps the law might require, that it should be closed in order to preserve the peace, and the aggressor might in such case be held to bail for his good behaviour. Secondly, if after having taken such proper precautions, a party should be assailed, he may undoubtedly repel force by force, but in most instances cannot, under the pretext that he has been attacked, use force enough to kill the assailant or hurt him after he has secured himself from danger; such as if a person unarmed enters a house to commit a larceny, while there he does not threaten any one, nor does any act which manifests an intention to hurt any one, and there are a number of persons present who may easily secure him, no one will be justifiable to do him any injury, much less to kill him; he ought to be secured and delivered to the public authorities. But when an attack is made by a thief under such circumstances, and it is impossible to ascertain to what extent he may push it, the law does not requite the party assailed to weigh with great nicety the probable extent of the attack, and he may use the most violent means against his assailant, even to the taking of his life. For homicide may be excused where a man has no other probable means of preserving his life from one who attacks him while in the commission of a felony, or even on a sudden quarrel he beats him, so that he is reduced to this inevitable necessity. And the reason is that when so reduced, he cannot call to his aid the power of society or of the commonwealth, and being unprotected by law, he reassumes his natural rights which the law sanctions, of killing his adversary to protect himself.
The party attacked may undoubtedly defend himself, and the law further sanctions the mutual and reciprocal defence of such as stand in the near relations of hushand and wife, patent and child, and master and servant. In these cases, if the party himself or any of these his relations, be forcibly attacked in their person or property, it is lawful for him to repel force by force, for the law in these cases respects the passions of the human mind, and makes it lawful in him, when external violence is offered to himself, or to those to whom he bears so near a connexion, to do that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain.
The party making the attack may be resisted, and if several persons join in such attack they may all be resisted, and one may be killed although he may not himself have given the immediate cause for such killing, if by his presence and his acts he has aided the assailant.
The cases for which a man may defend himself are of two kinds; first, when a felony is attempted, and secondly, when no felony is attempted or apprehended.
1st. A man may defend himself and even commit a homicide for the prevention of any forcible and atrocious crime, which if completed would amount to a felony; and of course under the like circumstances, mayhem, wounding and battery would be excusable at common law. A man may repel force by force in defence of his person, property or habitation, against any one who manifests, intends, attempts, or endeavors, by violence or surprise, to commit a forcible felony, such as murder, rape, robbery, arson, burglary and the like. In these cases he is not required to retreat, but he may resist and even pursue his adversary, until he has secured himself from all danger.
2d. A man may defend himself when no felony has been threatened or attempted: 1. When the assailant attempts to beat another and there is no mutual combat, such as where one meets another and attempts to commit or does commit an assault and battery on him, the person attacked may defend himself, and; 2. An attempt to strike another, when sufficiently near so that that there is danger, the person assailed may strike first, and is not required to wait until he has been struck.
When there is a mutual combat upon a sudden quarrel both parties are the aggressors, and if in the fight one is killed it will be manslaughter at least, unless the survivor can prove two things: 1st. That before the mortal stroke was given be had refused any further combat, and had retreated as far as he could with safety; and 2d. That he killed his adversary from necessity, to avoid his own destruction.
A man may defend himself against animals, and he may during the attack kill them, but not afterwards.
As a general rule no man is allowed to defend himself with force if he can apply to the law for redress, and the law gives him a complete remedy.
____
If the defense can show the entry was illegal, the police officers become armed trespassers. If the entry is illegal, the defendant can assert Self-Defense as a defense against the charges.
At that point it is a factual issue for the jury whether the defendant knew they were officers before they opened the door - which goes to "reasonable belief." From the report above, it appears the defendant fired as the door opened - which creates another fact issue - did the officer get far enough into the dwelling for the defendant to observe his uniform (if he was uniformed, which is highly likely) and could the defendant observe his uniform (was it dark, were there lights).
There is also the issue of this individual's competency - initial news reports on this incident cite the defendant as being of limited capacity - which will play into the definition of "reasonable" - as the analysis will be whether a similarly situated person (i.e. another person of similarly limited capacity in the same situation) would have reacted the same way)
Despite what some irrational, overemotional posters may assert, this is by no means a slam-dunk case on the part of the State - especially if the entry was illegal.
Or are you just going for the typically liberal tactic of unsupported, emotional rhetoric coupled with ad hominem attacks and absolute aversion to factual, logical discourse and facts presented to you?
Obviously, you're a more thoughtful landlord than a couple of doozies I've had. The fact that you actually had your leases drawn up for you speaks volumes, when many small landlords just pick up whatever generic lease they can get at Staples or equivalent.
I guess I should consider myself lucky that tenant legislation here offers me a little more protection than in other places. I am pretty astounded that there are still places in the US where a landlord can do surprise inspections! Did you ever do them? Did you ever stumble in on any "interesting" behaviour?
Note that I have been out of the rental business for some time. It's likely that the laws have changed since then.
Every legal argument, every opinion of the evidence, every take you've expressed and even your questioning of whether this is murder has been exclusively from the viewpoint of a defense lawyer. You haven't commented at all about the prosecution's case ... and you're allegedly a prosecutor. It's a murder case, because it has been already charged that way, ok? There's nothing in your posts that highlights evidence or law that bolsters the prosecution case. That's what you are supposed to be trained to do. It's absent. That's a red flag pal.
If I were a Maryland resident, I'd question your resolve to aggressively prosecute the State's interests. You'd be sitting around thinking of all the ways you couldn't win. Why are you doing that job, your heart and soul is in defense? That's righteous, you'd be happier. You can walk up and bully the prosecution witnesses if things get hairy ... tell them to go back to DU, that'll unravel the star witness.
You don't conduct yourself as a professional attorney. "Brownshirt" "Adolf" You use words recklessly, and good lawyers don't do that. My support of two policemen's rights - I don't give a shit about the legal falderol - is about their rights as human beings with families who should not be murdered as young men. How about the moral right of a LEO to not get ambushed with a shotgun blast as they enter a key-opened front door after full ID and in service of resolving a citizen complaint? They were doing their duty. You say it could have been prevented. Your solution ... the cops wouldn't enter the house even with permission of the owner, they may have just went away, maybe loitered outside for three or four hours, or possibly obtained a search warrant whereupon Zito could have shot them coming through the door with a piece of paper in their hands. How do I think this could have prevented? Here's a simple preventative strategy, how about if that Zito animal hadn't grabbed a shotgun, lined up his aim and then ambushed and killed two Law Enforcement Officers as they unlocked and entered through the front door? That would have prevented the butchery too.
The people of Maryland should sleep secure with you watching their interests.
the mighty LEOs armedwith machine guns and grenades should patrol the streets, ready to lay the law down on those pesky jaywalkers.
it is sickening, because the very things all the JBT wanna-bes advocate is directly opposed to the Constitution and conservativism.
some how they got police state/jack boots mixed up with smaller government,less government intrusion, and following the Constitution.
go figure.
I don't know what his t-shirt says, but mine reads "I'm with the control-freak jackboot-licking lackey." and its got an arrow pointing to the left.
Now don't you move none.
The cops had no legal authority to enter the dwelling, plain and simple.
there is still a thing called the Constitution, although between you JBTs and liberals, it has been wrecked pretty well.
the cops right to life ended the moment they violated the Constitution and entered the dwelling illegally, at that point they were the same class as a thief looking to steal.
if they had followed the law, then they would still be alive.
on to the next point, do you know what the prosecutors job is? or have you just been watching law and order?
Some of the crazy, uninformed, underinformed, and nutty-stuff posted here sure concerns me about my fellow Americans. But at least I take heart in knowing that free speech rages. So post away!!!
An open and free forum is the best disinfectant for thoughts of the logically challenged.
Obviously, which is 99% of your problem; however I'm obligated to "give a shit about the legal falderol." That is also why I label you a Nazi and realize that if you were running the show we'd have a modern-day SS. Thank you, no, I like our Bill of Rights.
I'm a prosecutor because I couldn't defend 99% of the people arrested, because 99% of them are guilty and 99% of the cops act appropriately when the arrest them.
The defense bar can't stand me, because I am aggressive and get convictions - because I know the law - I lived it for over seven years.
I also have an ethical obligation to look at both sides of the coin, and not to prosecute without probable cause. I also know that to be an effective prosecutor I need to look for the holes in my own case.
On this thread I'm looking at the problems with this case, based on the information given. If you can't handle that, you need to move to a country where you will be more comfortable: say Nigeria or Zimbabwe...they don't care about "legal falderol" either; but I do.
These cops should have too - they'd both still be alive. I'm sorry for this tragedy, but the day we cannot honestly evaluate an incident like this is the day we all lose our freedoms. Police procedures are in place to preserve and protect not only the police officers and the public they come in contact with, but the Rights of us all. Had these officers backed off and set up a perimeter, they would still be alive to testify as to what occurred.
If it comes out that an exigency existed for them to enter, that changes the equation, but on the facts presented - a loud noise complaint - there's just no excuse for entering that trailer.
They didn't have permission from the person that counts, the tennant,
they may have just went away, maybe loitered outside for three or four hours, or possibly obtained a search warrant
BTW - That ain't my solution, that's Tom Jefferson's and Jimmy Madison's solution...or haven't you read Amendment IV to the United States Constitution?
Your problem, Adolf, is you can't admit when you are wrong.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.