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Law Enforcement Today | November 23, 2014

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Self-Defense and a Cop Doing Life

Self-Defense and a Cop Doing Life
david waksman

We all believe we understand the law of self-defense and know how it should be applied.  As we examine the tragic case of off-duty NYPD Police Officer Richard D. DiGuglielmo Jr. (known as Richie to his friends and family), we see that nothing in the law is as simple as we may think.

Back in 1996, Richie had just finished his tour of duty in The South Bronx and was helping out his dad and brother-in-law at the family owned deli in Dobbs Ferry, New York, 30 minutes north of the city in Westchester County. Dad was recovering from a heart attack and needed the help.

Someone had parked in one of the deli’s limited reserved parking spots and went across the street.  As recommended by the local police, Dad first asked the person to move the car, and then when he refused, placed a “no parking” sticker on the car.  This infuriated the driver and Richie came out to get between him and his father.  The driver, an amateur boxer named Campbell, began punching Richie in the face.  It took all three family members to subdue Campbell and calm him down.

This seemed to end the story and Campbell returned to his car.  Dad followed him, offering return of his dropped cell phone. However, instead of getting into his car and driving away, Campbell went to his trunk and retrieved a metal baseball bat.  Dad was hit twice, one shattering his knee and the other cracking his wrist.

Richie now back inside the deli, grabbed a gun from beneath the counter, ran out, and fired three times.  The autopsy reported three shots to the left shoulder, one exiting and re-entering the chest, killing Campbell.  Officer DiGuglielmo had never shot anyone before.

Richie believed his father’s life was in danger from a “deadly weapon” and felt he would be quickly cleared.

You won’t believe what “the cops” did to him.

The law of self-defense in New York is pretty standard.  You may defend yourself or another from the imminent use of unlawful physical force.  Deadly physical force is justified only when “the actor reasonably believes that such other person is using or about to use deadly physical force.”  Deadly physical force is further defined as “physical force, which under the circumstances, is capable of causing death or other serious physical injury.”

This was Richie’s problem.

More than a dozen witnesses were interviewed.  There were almost as many versions of what happened.  Some claimed the family jumped and beat Campbell.  Some said Campbell was swinging the bat “wildly.”  The distance between Richie and Campbell was described as either five feet, 12-14 feet and 30-40 feet.  Distances are critical when dealing with non-firearm weapons.

Richie said his injured father was “three or four feet away” from Campbell. Several witnesses observed Campbell holding the bat above his shoulder in “a batter’s stance making circular motions like a baseball player ready for a pitch.” The autopsy findings were consistent with Campbell “standing in a right handed batting stance.”

The jury, hearing all the witnesses presented, including Richie’s assertion that he was protecting his father from further serious injury, found him guilty of second-degree murder.  The court sentenced him to twenty years to life.

After his conviction was upheld by the appellate court, Richie’s attorneys filed a motion before the trial court (a different judge heard the case) to set aside the conviction based upon “newly discovered evidence.”  A hearing was set and witnesses were called.

Two of the witnesses who testified at this hearing said they first gave statements that were favorable to the defense, but a week later they were changed, allegedly at the insistence of the investigators. A third witness with favorable evidence did not testify at the trial, but also claimed his original statements were modified by the police before his final statement was given. 

The motion to set aside the conviction was granted as the judge, at the hearing, believed the three witnesses and not the investigators who denied coercing them to change their testimony.  Richie was freed, but the state took an appeal.  The appellate court reversed the granting of the motion.

A main point on this last appeal was that if the jury had heard this “newly discovered evidence,” the verdict would have been different, and that the police and the prosecutors failed to disclose this “favorable evidence” to the accused. 

The appellate court chose the following as the controlling evidence in the case:

Campbell struck Dad in the knee but did not strike again as he backed away.

Campbell never used the bat as a deadly weapon and was not actually using deadly physical force at the moment he was shot. 

Keep that in mind the next time someone brandishes a baseball bat at you in an aggressive manner!

The defendant testified he believed Campbell’s use of additional physical force against Dad was imminent. To justify his actions, the jury must first accept his own belief as reasonable and then also find that a reasonable person in his position would also so believe.

Because the jury rejected Richie’s justification defense, in spite of “significant evidence of Campbell’s aggressiveness,” the court held that even if the new evidence had been presented at trial, “there is no reasonable probability that the jury would have come to a different determination.”

After this opinion was released, Richie was given two days to surrender.  After a year and a half of freedom, he returned to the state prison where is currently serving his life sentence.

Usually juries are called upon to determine the facts when they are in dispute. They determine the credibility of the witnesses and what evidence to accept or reject.  If the evidence favors the prosecution, the constitution requires the state to prove its charge.  However, if the evidence shows that the killing was justified, the court takes the case away from the jury and enters a not guilty verdict.

I prosecuted a case once where a drunken street person approached a man while threatening him with some sort of a bludgeon.  The soon to be defendant took the club from the other man’s hand and “hit him up the side of his head.”  The soon to be deceased fell down, got up and walked away, and died two days later from a head injury.  The defendant told his story to the homicide detective and the jury.

When asked on cross-examination what the other man had in his hand “when you hit him in the head,” he had no answer.  The jury found him guilty and the trial judge, very sympathetic to his plight, sentenced him to five years in prison.  On appeal, the court reversed the conviction, saying there was no issue for the jury to decide.  This was clearly self-defense.

If that was so strong a case of self-defense, why was Richie convicted when he shot an armed man who had already used his weapon?  The next time you think about drawing your weapon, in addition to all the other matters you have to consider in a matter of milli-seconds is this:  What if you are right, and the jury disagrees with you?

Richie is eligible for parole in 2019.

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with of the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall. He can be reached at ShomrimWaksman@Bellsouth.net or thru LET.

 

Comments

  1. I will keep it in mind, but it still will NOT change my mind regardless of how the stupid court system see’s it. If I myself or a family member is being attacked by a baseball bat or any other lethal weapon, I will still stop the threat by all means, even if it is deadly force on my behalf by crowbar, steel pipe or a firearm, then so be it.

  2. Campbell, a boxer, punched Richie’s Dad in the face. Any punch to the head is life endangering and a King Hit to the head is a killing attack as the hitter has no control over the amount of damage to the brain, also when a person falls down unconscious from such a hit, they cannot soften their fall such as by rolling or breaking the impact with their arms. It is common, such as outside pubs, for bouncers to King Hit a person who falls and dies because their head then impacts with a hard surface and the concussion and internal bleeding kills them. As people fall away when King Hit, the hitter cannot save that person from falling. Use of JuJutsu however, does allow holds and throws where you retain a grip on the faller’s arm to save them. A Boxer is a trained martial (sports) artist and can control where he hits. Choosing to hit the head (not knowing already the medical condition of the victim), is life threatening. Campbell may not have intended to kill, but his violence action in itself can kill, and there are examples of this.

    Campbell chose to use a metal baseball bat and hit Richie’s Dad in the knee. Although attacking the knee is not a killing intent, still Campbell used a weapon on an unarmed man. The fact that Campbell actually hit a person is reason enough to expect that he would swing again. As Campbell had already punched Richie’s Dad’s head, it would be reasonable for Richie to expect that Campbell had no qualms about batting Richie’s Dad’s head also, which is a threat to kill by actions chosen. Campbell chose to upgrade the violence from fist to a weapon.

    Richie had a duty of care for his father’s safety and a knowledge of his father’s medical (heart) condition. Knowing that meant that any violence to his Dad was libel to kill his Dad. Therefore Richie had certain knowledge that his Dad’s life was endangered by Campbell’s violent actions. Richie witnessed Campbell’s punch to the head and that was enough to put the situation into one of acting in Self Defence of his Father, using any means necessary to protect a threatened life.

    Richie also picked up a weapon, a gun. A gun is a weapon a grade in violence up from a bat. However in the attack place and time that Campbell (not Richie) chose to be violent, a bat was not available to Richie. So no meeting of weapons of equality was possible, in the vital need to protect his Dad’s life. In the urgency of the moment Richie needed a weapon to match/over match a weapon, and the gun was all that was available. Especially as there was a distance to cover immediately and a gun could cover distance whereas something else probably not. Throwing something is not effective in stopping a bat.
    Now Richie’s police training kicked in and he fired at the body as the most effective means, as is known to the police force, of actually hitting effectively a target person. But instead he aimed and three shots and successfully hit the Campbell’s shoulder: showing no intent to kill on the part of Richie, however one and only one bullet ricocheted and re-entered the chest, killing Campbell. That is mischance and not intent. The intent was solely to wound and wound in order to make Campbell drop his weapon.

    Witnesses, as usual differ and are unreliable, and indeed in this case their opinions varied: meaning that clarity needed to be sought elsewhere. But the choices made by all parties involved are clear. Richie ‘should have’ threatened to fire before he fired but that depends on the moment, was there time available to actually do that? Only Richie knows as he had to judge whether or not he had any warning time. Swinging a bat is fast and words are slow, so, in a life or death moment, not enough time was available to be certain of anything. The timing was controlled by Campbell. Campbell, because he had already hit a person twice, his intentions were clear, and it would be REASONABLE to expect another blow was on the way, he did not put the bat down after using it.

  3. Correction: Richie was punched in the head, his Dad was hit twice by Campbell’s bat. But the argument still stands as the violence level by Campbell was life threatening and he didn’t stop with just one hit.

  4. Thank you. If you wish to support Richard please write a letter of support for clemency and send it to freedom4rd@outlook.com or mail it to Rosemarie DiGuglielmo, 225 Ashford Avenue, Dobbs Ferry NY 10552. We need all of the support we can get. Thank you.

  5. This is a sad situation, and the prospect of it happening to me is obviously of concern. However if I am ever in such a situation the fear of what may happen later will likely be little deterrent to me acting in the same manner. Prison would be unpleasant and horrible, but not as much so as standing around in fear watching a loved one get murdered. But we see our court system fail us several times a year with sentencing or acquittals of the turds, we should know we may end up in the same boat some day. It is sad.

  6. The witnesses contradict each other and therefore all such testimony (unfortunately) is unreliable.
    The son was knowledgeable of his father’s heart condition and had a duty of care. The son had already been punched in the head and therefore had a real basis of expectation that the attacker would also do the same with his bat. The escalation of force was when the attacker picked up and used his metal bat. The attacker did not put down his bat after using it but was able to strike again. The son did not prepare the scene as an even fight and so was in a Self Defensive situation on behalf of his father. The son collected his gun (unfortunately a low calibre weapon where bullets can bounce off bone), the attack being already a weapon against an unarmed unhealthy person. Boxers get health checks and any boxer knows not to hit a public person as the victim’s health level is totally unknown. The boxer did not need a weapon, as he was professionally trained and experienced to fight and win with his fists. The situation was a judgement call by the son as to fire or not fire. The fast time of a bat swing against his father’s head could be easily thought to be not enough time to call out a preceding warning to stop or else. The police training demands that for safety and efficiency, you double-shoot the body. The trained son did not do that. Instead he put others at risk by shooting the attacker’s shoulder three times, a targeting that proves he was not shooting to kill but shooting only to cause the attacker to drop his deadly weapon. An unfortunate ricochet killed the attacker/boxer/batter. The son’s intent, by the events, clearly was to save his father, but also not kill the attacker. The son, in error, should have shouted first, but the timing allowance for that only he can know, he seeing the events unfold as they did. In combat, time is a crucial element limiting thinking. Also as the son had already been hit in the head by the attacker, that violent act of the attacker could easily be sufficient to mar the son’s normal thinking and judgement process, a damage situation caused by the boxer not caused by the son. That cannot be denied as cause to doubt a sane intention of murder.

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