Jus­tices de­bate porch shoot­ing de­fense claim

At­tor­ney says ‘stand your ground’ should have been con­sid­ered

The Detroit News - - Front Page - BY JONATHAN OOSTING Detroit News Lans­ing Bu­reau

Lans­ing – Ju­rors who con­victed a Dear­born Heights man of mur­der for shoot­ing an un­armed black wo­man on his porch in 2013 should have been given ex­plicit in­struc­tions about Michi­gan’s “stand your ground” law, his at­tor­ney ar­gued Thurs­day be­fore the state Supreme Court.

Theodore Wafer, a 58-yearold for­mer air­port main­te­nance worker at Detroit Metro Air­port, is seek­ing a new trial in the shoot­ing death of 19-year-old Ren­isha McBride. A jury found him guilty of mur­der, man­slaugh­ter and felony firearm pos­ses­sion in 2014.

A Michi­gan law ap­proved by leg­is­la­tors in 2006 pro­vides home­own­ers with a “re­but­table pre­sump­tion” of self-de­fense if they use deadly force to stop some­one in the process of break­ing and en­ter­ing, pro­vided the home­owner feels a threat of im­mi­nent death or bod­ily harm.

While ju­rors re­jected Wafer’s self-de­fense claims, they should have been told to con­sider that “pre­sump­tion” be­fore they de­cided his fate, said Jac­que­line McCann, an at­tor­ney with the State Ap­pel­late De­fender Of­fice who took Wafer’s case to Michi­gan’s high­est court.

She called the law a “thumb on the scale that the Leg­is­la­ture in­tended” as an ex­tra pro­tec­tion for home­own­ers re­spond­ing to threat­en­ing sit­u­a­tions.

Wayne County Pros­e­cu­tor Kym Wor­thy’s of­fice main­tains there is no ev­i­dence McBride was threat­en­ing Wafer or at­tempt­ing to harm him when she banged his doors in the early morn­ing hours of Nov. 2, 2013.

She was dis­ori­ented and seek­ing help af­ter a sin­gle-car ac­ci­dent less than a mile away from Wafer’s home on West Outer Drive and Dol­phin near War­ren Av­enue, ac­cord­ing to pros­e­cu­tors and her fam­ily.

“This could have been a neigh­bor telling him there was some­body pound­ing at your door and I chased them off,” said Ti­mothy Baugh­man, a spe-

cial as­sis­tant at­tor­ney in Wor­thy’s of­fice. “He said he didn’t know her gen­der. He didn’t know the race. He opened the door, and he shot.”

At trial, Wafer tes­ti­fied he had grown in­creas­ingly wor­ried about “vi­o­lent” bang­ing on his doors in the mid­dle of the night. His at­tor­neys also noted a dis­lodged screen door, ar­gu­ing McBride had kicked it in.

As he opened his door, a “per­son came out from the side of my house so fast,” Wafer tes­ti­fied. He shot McBride in the face, call­ing it a “to­tal, to­tal re­flex re­ac­tion.”

McCann ar­gued ad­di­tional in­struc­tions could have led ju­rors to find he had a right to “pre­sume” McBride was a threat even though he did not see her be­fore fir­ing.

“They looked at it in the con­text of as if he had seen her,” she said. “As if he knew she was un­armed. As if he knew she was 19. As if he knew it was a girl. As if he knew she was in­tox­i­cated. As if he knew she had a closed head in­jury.”

Jus­tices Joan Larsen and Brid­get McCor­mack both ques­tioned at­tor­neys on whether in­struct­ing ju­rors about the pre­sump­tion law could have made it al­most im­pos­si­ble for pros­e­cu­tors to se­cure a con­vic­tion.

The in­struc­tions, as writ­ten, leave out the “re­but­table” side of the law, McCor­mack said, sug­gest­ing “it’s ba­si­cally di­rect­ing a ver­dict.”

Baugh­man made a sim­i­lar ar­gu­ment.

“It doesn’t just put a thumb on the scale, it puts a whole hand,” he said.

The 2006 stand-your-ground law can be used to trig­ger a self­de­fense ar­gu­ment, which height­ened the bur­den of proof for pros­e­cu­tors in the Wafer case, Baugh­man said. But he ar­gued it should never be pre­sented to ju­rors as an in­struc­tion.

Chief Jus­tice Stephen Mark­man pressed Baugh­man on what leg­is­la­tors in­tended when they passed the law in 2006, and whether some­one like Wafer was “en­ti­tled to be full of piss and vine­gar in re­act­ing to the cir­cum­stances he con­fronted at 4 in the morn­ing.”

Mark­man also asked the de­fense if a greater im­pact may have oc­curred when the trial court “quite wrongly” gave ju­rors in­con­sis­tent in­struc­tions about whether Wafer had a duty to re­treat from the po­ten­tial con­fronta­tion, which he did not.

Baugh­man told Mark­man he be­lieved ju­rors un­der­stood Wafer had no duty to re­treat in his own home or porch. But he said ev­i­dence pre­sented by pros­e­cu­tors showed Wafer was not fac­ing a rea­son­able threat of death or great bod­ily harm.

Jus­tice Richard Bern­stein re­peat­edly asked both the pros­e­cu­tors and de­fense at­tor­neys at what mo­ment the pre­sump­tion of self-de­fense kicks in un­der the law.

“Is it the minute the screen opens? Is it the minute the door opens?” Ber­stein said. “If it’s a post­man or de­liv­ery per­son, if he opens the door and says, ‘Hello, it’s UPS!’ That’s what I’m try­ing to un­der­stand.”

Mark­man made a dis­tinc­tion between a day­time de­liv­ery and door knock­ing at 4 a.m., not­ing Wafer lived in a “high crime area” and ref­er­enc­ing al­le­ga­tions McBride kicked his screen, broke a peep­hole and “rushed at” Wafer when he opened his door.

“That’s not ex­actly the same as the Fed­eral Ex­press car­rier.”

A Michi­gan Court of Ap­peals panel last year up­held Wafer’s con­vic­tion but ruled Wayne Cir­cuit Judge Dana Hath­away erred dur­ing sen­tenc­ing.

Jus­tices are not re­quired to de­cide the case un­til next sum­mer but have the op­tion to do so sooner, court spokesman John Nevin said Thurs­day.

Wafer

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