May 14th, 2008 02:00 PM
Frankly I see the two cases as being completely different and not all that similar.
Originally Posted by socuban
If anything the only similarity or cross over is my own personal feeling and analysis toward the actions of the shooters in both cases. In that they started out as true victims only to end up through actions and choices of their own to not only be survivors but in turn victimizers at the finality of their situations.
A fine line to note and walk but it is there, and the law with justifiability lies on just one side with it's opposite being criminality.
Both cases show that we citizens upon in the moment being victimized must and do have responsibility to be careful about our active or reactive choices in footing.
Being a victim does not give one license nor excuse to flout the law and legality, even as a jury might maybe by chance offer ones self a pass.
"He who fights with monsters might take care lest he thereby become a monster." - Fredrich Nietzsche
"Killers who are not deterred by laws against murder are not going to be deterred by laws against guns. " - Robert A. Levy
"A license to carry a concealed weapon does not make you a free-lance policeman." - Florida Div. of Licensing
May 14th, 2008 03:58 PM
I don't think that's the right summary here.
Originally Posted by digitalexplr
Two things are going on. Florida has a "stand your ground" law that removed the duty to retreat before employing lethal force in self defense in a public place. That is, if you have a legal right to be there, you have a right to use lethal force without retreating so long as lethal force is justified. Normal A-O-J stuff here.
Now, the Castle Doctrine does something different. The Castle Doctrine says that if somebody is trying to break into your house, or has already done so, there is a rebuttable presumption that he is there to do lethal harm to the residents. Essentially, the Castle Doctrine gives your defense the presumption of Ability, Opportunity, and Jeopardy to start with. The prosecution, though, can still make a case that there was no lethal threat to the homeowner. If a bum breaks into your garage to sleep somewhere warm and you shoot him, you are going down, Castle Doctrine or no, because the prosecution will be able to prove you weren't defending yourself. In summary, in a normal murder trial, the prosecution must prove guilt beyond a reasonable doubt; in an affirmative defense, the defense gets the burden of proof shifted to it, and must prove self defense beyond a reasonable doubt. The Castle Doctrine shifts the burden back to the prosecution for a self-defense case based on a home invasion (or imminent home invasion).
As for these two cases---the second one, Borden, is a "stand your ground" case. Someone tried to run him over, clearly a lethal threat, and he responded with shots until the threat was over. Seems pretty straightforward to me, though with all details lacking there could be recklessness charges if he was shooting through other pedestrians to hit the Jeep or something like that. The attack on the Jeep's occupants, though, seems entirely justified.
The Tapanes case is far more tricky. The first shot could maybe be justified by the Castle Doctrine if a reasonable juror believes that the overall circumstances suggested that Cote was attempting to force entry. The report does not clearly say how Cote reacted after the first shot, if he was trying to get back up, continuing to berate or threaten Tapanes, or what. But I would say a prosecutor has a pretty good case that the Castle Doctrine no longer applied and that it was pretty clear Cote was no longer a lethal threat after the first shot. In which case Tapanes gets murder two (heat of the moment), or maybe even murder one.
“What is a moderate interpretation of [the Constitution]? Halfway between what it says and [...] what you want it to say?” —Justice Antonin Scalia
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May 14th, 2008 06:31 PM
Sounds like an execution to me......but what do I know I wasn't there......No No it still sounds like an execution. Like it has been said, someone comes banging on my door I call 911 and if and only if they come through that door do they get blasted!
“The world is a dangerous place, not because of those who do evil, but because of those who look on and do nothing.”.... Albert Einstein
May 14th, 2008 10:03 PM
Common sense should have told Tapanes to call 911 first. The second shot didn't help his case. I don't think the Castle Doctrine will cover this due to the second shot and the failure to call 911.
May 15th, 2008 07:42 AM
case update in the news
If I remember correctly, the Murphy's had just moved from Broward county into semi-rural Acreage;
Mother recounts meeting neighbor before shooting
By LARRY KELLER
Palm Beach Post Staff Writer
Wednesday, May 14, 2008
WEST PALM BEACH — Janet Murphy's first meeting with new neighbor Jose Tapanes was no harbinger of the horror that was to follow several hours later, she testified Wednesday.
As she and her family spent the day moving from Broward County into their new home in The Acreage, Tapanes walked over with one of his dogs from his house across the street, shook her hand and welcomed her to the neighborhood, Murphy said. He said his name was "No Way Jose," she added.
Hours later, Murphy was bent over her son as his life ebbed away in the pre-dawn hours near Tapanes' front door. Her new neighbor had fired two blasts from his shotgun into the torso of Christopher Cote, 19.
"His eyes were closing. You could tell his breathing was becoming more shallow," Murphy testified.
Meanwhile, Tapanes, 63, was standing nearby, chanting something, she said. "I told him to shut up because this might be the last time with my son alive," Murphy said.
Now Tapanes is on trial for first-degree murder. He and Cote had a verbal confrontation in which Cote told his family that Tapanes had pointed a gun at him while Cote was walking his own dog. After his family declined to call police, an angry Cote got in his Jeep, pulled into Tapanes' driveway with his headlights shining on the man's house. He knocked or banged on the front door. When Tapanes opened it, he shot Cote.
Tapanes maintains he acted in self defense - that he feared Cote was about to harm him. Even if true, he had no legal justification for shooting Cote a second time, after the first, nonfatal shotgun blast knocked Cote to the ground, prosecutors contend.
Murphy and other family members were called to testify on Wednesday about events leading up to the deadly shooting. Tapanes' attorneys have been trying to show through their questioning of witnesses that Cote was in a rage when he went up to Tapanes' door sometime after 3 a.m. Prosecutors have elicited responses from some witnesses aimed at proving that Cote was agitated, nothing more.
Cote's mother was probably the last person with him before he died. When sheriff's deputies arrived, they instructed her to stand back. One of them leaned over her son, then stood back up right away rather than assist him, she said.
"I knew he probably had stopped breathing," she said.
May 15th, 2008 08:06 AM
People sleep peaceably in their beds at night only because rough men stand ready to do violence in their behalf. - George Orwell
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