Sounds like the first guy needed to turn on his porch light and it looks like overkill on that second shot.
This is a discussion on FL Castle Doctorine test cases within the Carry & Defensive Scenarios forums, part of the Defensive Carry Discussions category; Here are a couple of grey area cases that went down and how they are being viewed; Jury to decide if Tapanes fired in self ...
Here are a couple of grey area cases that went down and how they are being viewed;Jury to decide if Tapanes fired in self defense
By LARRY KELLER
Palm Beach Post Staff Writer
Monday, May 12, 2008
WEST PALM BEACH — Did Jose Tapanes fear for his life when he blasted his new neighbor, 19-year-old Christopher Cote, with a shotgun, killing him? Or did he needlessly provoke a volatile confrontation and kill an unarmed man?
For the second time in less than a year, a jury is being asked to decide if a man charged with first-degree murder acted in self defense under the so-called Castle Doctrine, that allows one to use deadly force rather than retreat from a perceived threat.
"Deadly force in self defense is not the case" with Tapanes, prosecutor Adam McMichael told jurors in opening statements on Monday.
Public Defender Carey Haughwout disagreed. Tapanes thought "Christopher Cote was there to hurt him," she said.
Cote and his family had just moved to The Acreage across the street from Tapanes hours earlier in September 2006 when the shooting occurred. Sometime after 3 a.m., Cote - who had been drinking beer - took his dog for a walk and had a verbal confrontation with Tapanes, 63. Tapanes contends that the young man threw a beer bottle at him.
In a cellphone message he left for his mother on their home answering machine, Cote can be heard asking Tapanes why he is pointing a gun at him. "I didn't point it at you," Tapanes replies.
By all accounts, Cote returned home angry, awakened his family and demanded they call police. They declined, not wanting to start off on the wrong foot in their new neighborhood.
Cote then drove away in his Jeep Cherokee, but made a U-turn and returned, pulling into Tapanes' driveway, headlights shining on his house, honking his horn.
McMichael said Cote then knocked on the door. Haughwout said he banged on it.
Whichever, Tapanes did not call 911. Instead, "He came out of that house and shot an unarmed teenager," McMichael said. The blast from a 12-gauge shotgun hit Cote a grazing blow to the chest and knocked him to the ground. Rather than retreat inside, Tapanes then fired a second shot from 3 feet away or less - "up close and personal" - ripping out Cote's intestines and severing his aorta, McMichael said.
Cote never tried to break into Tapanes' home and, since he was honking his horn, he did not show up unannounced, McMichael said.
Haughwout, however, said that Cote was demanding that Tapanes step outside and was pounding on and shaking the metal front door. He opened the door slightly to tell Cote to go home, saw him move in the dim light and fired in fear for his personal safety, she said.
The law requires a shooter acting in self defense to stop once the threat is over. Prosecutors say there was no threat once Cote fell to the ground from the first, non-fatal shot.
But in June 2006, a jury acquitted Norman Borden of two counts of first-degree murder and one count of attempted murder under similar circumstances. Borden said he was threatened by three men in a car as he walked his dogs. He fired shots, at their car, which plowed into a tree, incapacitating the occupants. Rather than go home immediately, Borden emptied his gun at the people in the car. His attorney was Haughwout.
In the Tapanes trial, jurors heard a tape of the 911 call that Cote's hysterical mother, Janet Murphy, made after the shooting. Her then-fiancé, now husband, Shawn Murphy, also spoke to the 911 operator.
"He went back in the house," Murphy says of Tapanes. "He's being cooperative."
Jury Did Tapanes think that Cote was an intruder, the operator asks.
"Yes," Murphy replied.
Sounds like the first guy needed to turn on his porch light and it looks like overkill on that second shot.
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There is a distinction between shooting to stop an attack and shooting to kill. Stepping outside of a home when someone wasn't breaking in, then shooting a second, up-close-and-personal type shot ... well, together, those can look pretty damning to a Grand Jury.
It also brings up an important point: in the end, it's not just how you'll see it; how others will see it can be fairly important. Calling police. Staying inside. Issuing clear warning. Not firing until A.O.J. has all been met. Not firing that final shot when it's not clearly necessary, and certainly not coming up to "within 3ft" of the attacker and doing so. If time allows, these things can be critical little proofs.
Yup - he left his home to go participate in the confrontation.
Severely weakens the self-defense argument, IMHO.
Battle Plan (n) - a list of things that aren't going to happen if you are attacked.
Blame it on Sixto - now that is a viable plan.
Learning to shoot again : Starting Over
I'm not sure that this is so much a test of the Castle Doctrine as it is a question as to whether the Castle Doctrine applies in this particular case.
Under Ch 776.013 of the FL statutes, for the Castle Doctrine to apply, Tapanes will have to demonstrate that Cote was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered his home.
If he can do that, then the Castle Doctrine applies and he has no other burden of proof with respect to Cote's intent. If he can't do that, he's likely going to find himself in a world of hurt.......
I'm afraid that if I were on those juries, the defendants would not like my verdict.
Agreed 100% CCW9, 100%!
All that Tapanes had to do was _not_ open his door and security gate (!) and to _not_ engage Cote.
Simply dial 911 and report it as a potential home invasion in progress, the cops will be on the way lickety split. In the mean time Tapanes was armed, his perimiter locked and secure, and he had no idea if Cote was armed or not so thus opening his door to _engage_ him direclty is an ill advised tactically stupid idea. Firing on him the second time was also unnecessary and stupid.
As to Cote why would he call his mother and leave a VM with her, as opposed to dialing 911...and leave a message with them?!
Further why would he return home and demand that _someone else_ dial 911?! That makes no sense at all especially as he had a cell phone on him to dial his mother just moments prior.
Also why didn't his people recognize that he was being irrational and acting like a douche coming home at 3 in the morning talking of neighbor man did this n' that? There was his wife, mother, and future step-father there to calm if not stop him from leaving with vehicle keys in hand to do go where and do what...at now no doubt 4 in the morning (!!?!).
Once he's shot and laid out on the ground gutted like a fish then they all come running with the OMG I loved him talk. Yeah sure, so much so that you didn't think or take the time when he was alive to dial 911 upon getting a VM indicating he's been involved in gun play with the neighbor moments prior, or upon his return he himself stating as much and asking for your help to which the reply is no doubt 'I don't want to cause trouble'. And even not stopping him from leaving again in an agitated if not intoxicated state to go back out on the streets to who knows where.
Everybody is at fault in this case which is a tragedy of errors.
Tapanes though as homeowner didn't ask for this but in the end he did not act soundly, which may or may not be seen as counter to FL castle laws in specific by a jury of his and Cote's peers.
If I were on his jury I'd find him guilty of second degree murder but had Cote been shot just the one time and left to bleed on the ground (or to get up and flee to later bleed out) I'd have no billed him, even as again I disagree with his unsound decision to engage.
P.S. - Agreed as well David.
There is no indication that Cote was actually attempting to enter Tapanes home. All of his actions leading up to the shot align with a person trying to alert the homeowner he is there and to come out and enjoin him in further dialog/interaction.
Of course Tapanes is not required to do so and as such could choose to stay inside and ignore him or most wise and lawful call the cops and have them intervene. Burglary or unlawful entry in general was not involved here, and thus no Castle defensibility factor.
I would not have opened the door and called 911,also the 2nd shot was an execution so i don't think he is going to walk on the murder charge castle doctrine or not the guy was down and he walked up to an unarmed man and killed him
"Outside of the killings, Washington has one of the lowest crime rates in the country,"
--Mayor Marion Barry, Washington , DC .
how does the Jose Tapanese (JT) case differ much more than the below Norman Borden (NB) case? What I'm seeing initially is that the perps in the NB case were meaning to cause bodily harm vs the JT case where the victim was just looking for an argument;Tuesday, July 10, 2007
Self-defense rights laws tricky
14 states have granted wider latitude for use of deadly force
By Brian Skoloff THE ASSOCIATED PRESS
WEST PALM BEACH, Fla.— Norman Borden fought back twice — once against three assailants on the street, then again in a courtroom where he was charged with murder for killing two of them.
Borden, 44, who was acquitted of all charges yesterday, was walking his dogs last year when three men in a Jeep tried to run him down. He pulled a gun and shot five times through the windshield, then moved to the side of the vehicle and fired nine more rounds.
He thought the shooting was self-defense, but a prosecutor put him on trial in the deaths, despite a new Florida law that grants wide latitude to people using deadly force to protect themselves.
The case highlights the confusion surrounding so-called “stand-your-ground” laws, which have been adopted in at least 14 states. The laws have perplexed judges and prosecutors, and, in some cases, forced lawyers to change the way they review evidence.
In Borden’s case, a prosecutor filed charges against him, even though he privately thought Borden might have been correct to open fire. In Kentucky, a man suspected of murder was offered a plea agreement because the law was too difficult to explain to jurors.
Florida was the first state to enact such a law in 2005, removing the requirement that people who think they are in immediate peril must first try to retreat from the confrontation before using deadly force. Before passage of the law, only people defending themselves in their own homes, for the most part, could use deadly force without first trying to flee.
Most states let authorities determine whether deadly force was reasonable, even inside the home. But the new laws create an automatic presumption that a person is justified in using deadly force to ward off an attacker in just about any public place.
“We believe that self-defense is an innate human right and the law should never put the innocent victim of a crime in a position of having to second-guess themselves,” said Ashley Varner, a spokeswoman for the National Rifle Association, which pushed for the laws.
For defense lawyers, the laws offer protection to clients who have struck back at assailants.
“The more defenses the better,” said Jack King, spokesman for the National Association of Criminal Defense Lawyers. He added: “Most people would rather be judged by 12 than carried by six,” referring to juries and pallbearers.
Gun-control groups worry that the laws will embolden shooters to pull the trigger first rather than as a last resort.
“If you are protecting yourself or your family in self-defense, that’s a basic legal right anyway,” said Elizabeth Haile, a lawyer for the Brady Campaign to Prevent Gun Violence.
At least 14 states have revised their laws to ensure that people don’t have to retreat from an attacker. Those states are: Arizona, Florida, Georgia, Indiana, Idaho, Kansas, Kentucky, Louisiana, Michigan, Oklahoma, South Carolina, South Dakota, Tennessee and Texas, according to the NRA.
There is no way to tell exactly how many times the law has been used as a defense because the statutes are still too new to collect statistics.
In Kentucky, prosecutors offered a plea deal to a man they accused of murder because the statute was too confusing to explain to jurors.
Judge Sheila Isaac, who presided over the case, said the law apparently “went right through the Legislature without a single attorney looking at it.”
She said the law was addressing a problem that didn’t exist, a sentiment shared by law enforcement officials across the country.
“You just don’t see cases where people are prosecuted when they are defending themselves,” Isaac said.
Former Republican state Rep. Dennis Baxley, who sponsored Florida’s bill, argues that the law was needed to empower citizens.
“Our judicial system tries to be so careful to protect the criminal’s rights, we have neglected the right of the common citizen to protect themselves,” Baxley said.
In West Palm Beach, Borden faced up to life in prison without the possibility of parole if convicted of murder and attempted murder.
One of his would-be attackers, 21-year-old Juan Mendez, admitted in testimony at Borden’s trial that the three men in the Jeep planned to “rough him up.” A baseball bat was also found in the vehicle.
Prosecutor Craig Williams argued that Borden exceeded justified force when he continued firing after shooting the driver. But Borden’s defense argued that he did not have to retreat, citing the new law.
Williams said he pursued the charges because he thought a jury needed to decide the case. But he privately wondered how he would have behaved in the same situation. When Borden was acquitted, the prosecutor was almost relieved.
The assailants “were bringing an arsenal,” Williams conceded after the trial. “It was pretty clear what the right thing to do was here.”
Norman Borden, center, listens in court yesterday as the jury acquits him of all charges including two counts of first-degree murder. (THE ASSOCIATED PRESS)
There was a HUGE thread toward Norman Borden dating back to when his trial came up.
Run a search and review the positions stated there to which myself and many of the folk in this thread had more than a few words toward in commentary.
I don't really see this as a Castle Doctrine case at all; especially not the fatal shot.
Castle Doctrine dictates that when attacked you can stand your ground and use what force is necessary to stop the attack. You cannot be the aggressor and claim self defense. Once the shooter open the door and walked out into the yard and shot, "up close and personal" his claim of self defense goes out the window.
Of course you can never be sure what a jury will decide, but this doesn't look good for the shooter.
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This does not seem to be applicable to the Castile Doctrine. If he feared for his life he was justified in self defense. If he was not, then he executed a troublesome neighbor.
I am not sure how I would decide if I was on the Jury of this one.
I will say one thing for sure. If somebody is banging on my door at 3 a.m. with hostile intentions, I don't plan on needing, or taking, a second shot.
If you want to have a gentile discussion about our differences, you should definitely not start it out by waking me up by banging on my door at 3 a.m.
There are two sides to every issue: one side is right and the other is wrong, but the middle is always evil.
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What you have here is a common interpretation of the Castle Doctrine laws by both the pro-gun and anti-gun crowd with the shoot first law mentality. From what I read I don't think he is covered by the CD law and I am sure it was never intended to cover such cases. It is meant to protect those who are being attacked from having to defend themselves multiple times, first from the physical attack and then from legal attacks. It is not a license to kill and it sure appears that this fellow used it as that. The first shot was the stop the threat shot and should have been the end of it. The second shot is going to take more convincing on my part.