Category Archives: Self Defense

Defense Motions Denied in Leftwich Murder Case

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From the Beckley Register-Herald:

Note: In the article below, I bolded a quote from Judge Kirkpatrick that immediately stood out to me. He says that the previous blood-alcohol testing that was done for the prosecution was done by the State Medical Examiner’s Office, not by an expert chosen by the prosecution. Well, if you have read any of my prior posts regarding our State Medical Examiner’s office, you would know that the prosecution couldn’t hire a better expert for their side if they had unlimited funds to do so. Being that many things in our state are backwards, the State ME’s Office and the State Crime Lab are basically appendages of the police and prosecutors. When they testify at trial they are trained to slant the evidence and their testimony towards the prosecutors. They are hired guns basically. If anyone contests this, then I will be glad to give examples. The end result is that none of their conclusions can really be trusted without independent testing and independent experts looking over their shoulders. Just “google” the WV State Crime Lab and you will find examples of what I am talking about. – John H. Bryan, West Virginia Criminal Defense Attorney.

Leftwich loses bid to suppress evidence

Michelle James
Register-Herald Reporter

A Raleigh County judge Wednesday denied a motion from Thomas Leftwich requesting suppression of a search warrant and the evidence it allowed officers to obtain from the accused police killer’s South Fayette Street home.

Leftwich, charged with first-degree murder and conspiracy in the shooting death of Beckley Police Detective Cpl. Chuck Smith, is scheduled to go to trial March 10.

Defense attorney Mark Hobbs questioned the probable cause for the warrant, the second issued in the hours after Smith’s Aug. 29, 2006, death. That warrant led to the seizure of a numerous items, including a variety of weapons, ammunition, drugs, videotapes and computers.

Raleigh Sheriff’s Detective Cpl. James Canaday, who signed the affidavit for the warrant, and State Police Sgt. Craig Light, who carried out the search, testified as to probable cause during a pre-trial hearing Wednesday.

The officers told the court that items seen while carrying out the first search warrant led them to obtain a second warrant.

Circuit Judge H.L. Kirkpatrick denied Hobbs’ motion for suppression, telling him there was probable cause for the second search warrant and adding a second warrant was not actually needed and the officers were simply exercising “extreme restraint and caution.”

Kirkpatrick also issued a pre-trail order intended to determine “pending motions, as well as establish parameters of inquiry of witnesses and remarks of counsel.”

Through the order, Kirkpatrick denied Hobbs’ Feb. 21 motion to be supplied with a sample of Smith’s blood in order for the defense to perform its own testing to determine Smith’s blood-alcohol level at the time of his death.

The order mentioned chief deputy prosecutor Kristen Keller’s assertion that the “BAC of the victim is entirely irrelevant when a defendant claims self-defense.” Also, Kirkpatrick pointed out the previous blood test had been completed by the state medical examiner’s office, not an expert of the state’s choosing.

Kirkpatrick also denied Hobbs’ request to enter as evidence the City of Beckley’s general policy manual for police officers. In the order, Kirkpatrick stated there was no written guideline for policy and procedures for undercover operations and said a general policy manual would have no relevancy.

Also, because speculation became a problem during the trial of Leftwich’s co-defendant, Michael Martin, the order prohibits “sheer speculation concerning supposed motives attributable to the victim.”

Martin was found guilty of first-degree murder and sentenced to life without parole.

The order also states the court will not allow the victim’s character to be “trashed.”

Kirkpatrick’s order permits the defense to inquire about and address testimony pertaining to all activities and events surrounding the shooting.

Accused Cop Killer To Claim Self Defense

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State Police Capt. Scott Van Meter, left, looks on as chief deputy prosecutor Kristen Keller asks Raleigh County Circuit Judge H.L. Kirkpatrick to disallow any negative commentaries on the character of the late Beckley Police Detective Cpl. Chuck Smith Thursday during pre-trial motions in the Thomas Leftwich murder case. Leftwich is accused of shooting Smith to death during an Aug. 29, 2006, undercover drug operation.
Rick Barbero / The Register-Herald

From the Beckley Register-Herald:

Note: What the defense is getting at here is allegations that the victim narcotics officer was not acting entirely in the capacity of a police officer when this happened. It is claimed that the victim was at a bar drinking prior to the shooting, and that when the shooting happened, he was unarmed, and his girlfriend was in the car several steps away, along with his partner, who was also purportedly unarmed at the time.

If the defense is allowed to bring in some of these facts – which inarguably are in violation of the police operations manual, then it enables them to change the scenario from undercover cop killed in the line of duty, to off duty cop killed under questionable circumstances. This will be absolutely necessary if the defense is going to present self defense to the jury.

However, it doesn’t look like the Judge is going to give the defense much latitude with this argument. Regardless, his co-defendant was already convicted, and he had a much better chance of getting off because he wasn’t the shooter. He probably will inevitably be convicted, as he should. But its possible he will get convicted of 2nd degree murder if the jury runs with any of these facts. – John H. Bryan, West Virginia criminal defense attorney.

Accused cop killer to claim self-defense

Pre-trial motions heard in 2006 shooting of Beckley police detective

By Michelle James
Register-Herald Reporter

Two hours or so after he fired the shots that took the life of Beckley Police Detective Cpl. Chuck Smith, Thomas Leftwich told State Police Capt. Scott Van Meter he thought Smith might have been reaching for a weapon.

“I thought he was reaching for a gun,” Leftwich told Van Meter just before 7 a.m. on Aug. 29, 2006. “I didn’t know what he was reaching for.”

Van Meter read Leftwich’s short statement Thursday during pre-trail motions in Raleigh County Circuit Court.

Leftwich is charged with one count each of first-degree murder, conspiracy and use of a firearm in the death of the 29-year-old Smith.

During Thursday’s hearing, his attorney, Mark Hobbs, told the court the planned defense during the trial, which is slated to begin March 10, will be self-defense.

Hobbs said “it was all about (Leftwich’s) state of mind at the time” of the shooting, adding Smith did not identify himself and was fumbling in his pocket.

Although toxicology reports on Smith showed his blood-alcohol content was below the legal limit, Hobbs requested a sample of his blood in order for the defense to perform its own testing.

Chief deputy prosecutor Kristen Keller argued “BAC is irrelevant,” adding even if the toxicology is disputed, it doesn’t mean Smith’s death was justified.

Hobbs, saying he believed Smith had violated police department policies the night he was killed, requested permission to enter as evidence the Beckley Police Department’s policy manual.

Should Kirkpatrick allow submission of the manual, Hobbs said Marvin Robinson, a former city detective, would be an expert witness for the defense.

Keller questioned the relevance of the manual and added not only was there no evidence Smith had done anything wrong on the night of his death, but that if he had been in the wrong it is “no defense saying he wasn’t following rules and procedures.”

Keller asked Kirkpatrick to not permit Smith’s character to be called into question during the trial.

Kirkpatrick said there would be no “attacking or trashing the reputation” or Smith’s character.

Although Hobbs told the judge Smith’s character was not generally an issue, he said some of the conduct from the night of his death was. He asked Kirkpatrick to give guidelines on “how far he could go” when talking about what Smith had done prior to the incident.

Kirkpatrick said he would put together a pre-trial order to discuss what matters are permissible and what are off-limits.

Another pre-trial hearing has been scheduled for 1:30 p.m. next Wednesday, at which time Kirkpatrick will rule on the request for a blood sample as well as on the admissibility of the department policy manual. The hearing will also determine if Robinson is qualified to testify as an expert witness on the manual.

Leftwich’s co-defendant, Michael Martin, who set up the alleged drug buy between Leftwich and Smith and was himself convicted of first-degree murder in December, will also appear at the hearing to determine if he is willing to testify at Leftwich’s trial or if he will exercise his Fifth Amendment rights.

Leftwich, barring a negative medical exam, will wear a shock belt mechanism during his trial.

Kirkpatrick explained the belt will allow the court to reduce the number of police officers needed in the courtroom. Should Leftwich not comply with orders or get out of hand, Kirkpatrick said, a trained officer would administer a shock that would temporarily disable him.

Leftwich agreed to wear the belt.

— E-mail: mjames@register-herald.com

Concealed Weapons Privacy Bill Not Likely To Pass WV House

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From the Beckley Register-Herald:

Note: What public interest is there in the names and addresses of law-abiding citizens who obtain concealed weapons’ permits? And if there is legitimate public interest, then why must the addresses be included? Why not start publishing the names and addresses of welfare recipients? Taxpayer money is being funneled to it, government bureaucrats are administering it, and members of the public are receiving it. The answer: the Press supports expanded welfare programs, but does not support the 2nd Amendment. – John H. Bryan, West Virginia criminal defense attorney.

Concealed weapons bill in limbo in House

By Mannix Porterfield
Register-Herald Reporter

CHARLESTON — Delegate Rick Moye packs a hidden piece for his personal protection but is ambivalent about a proposal to deny public access to concealed weapons permits.

Moye’s reservations aren’t unique in the House of Delegates.

This week, the Rules Committee yanked from the active House calendar legislation that would make it no one’s business just who is toting a firearm under a court-approved permit. The bill was offered by Delegate Bill Hamilton, R-Upshur, with 10 co-sponsors, among them Delegates Mike Burdiss, D-Wyoming, Joe Talbott, D-Webster, and Mike Porter, R-Mercer.

There is a chance, however, the measure might be tweaked so its scope is narrowed to the very people it was intended to protect — victims of domestic violence.

“I can see both sides of that story,” says Moye, a school bus driver and body shop owner in Raleigh County.

“I can understand why you wouldn’t want that to be public knowledge for everyone to know. On the other hand, it’s a public record. When do you draw the line that you can conceal information?”

Obviously, the Rules Committee had problems wrestling with that as well, especially after the West Virginia Press Association reared itself into the issue, Majority Leader Joe DeLong, D-Hancock, said Thursday.

“I’m not sure where we’re at in the process, but I hope we can go back and revisit that bill and put an exemption in it when it comes to victims of domestic violence,” he said.

“I think that was the original intent of the bill. I think that’s what spurred this legislation.”

Domestic violence victims secured concealed weapons permits, only to have their addressed revealed to the reading public by newspapers, the majority leader said.

“We may be able to carve out an exemption for those people without taking away what’s considered to be the general right of the public to have access to this information,” DeLong said.

“The problem is in trying to strike a balance. There’s a certain segment of people that we’re trying to help. We still need to help those people and protect them. At the same time, we want to recognize the freedom of the press in having this type of information available as it should be in most other cases.”

Moye said he has no problem with people knowing he is legally armed. Without elaborating, the delegate said he got the permit for his personal protection.

“I’m a firm believer in my rights to keep and bear arms,” Moye said.

“I’ll not shy away from that at all. I just feel like it is a right, a privilege that I have, and I will exercise that privilege. And I totally support the Castle Doctrine. Common sense tells me that if someone is going to come and harm me, I don’t want to run from them.”

WV Senate Passes “Castle Doctrine” Bill

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From the Beckley Register-Herald:

Senate unanimously OKs ‘Castle Doctrine’ bill

By Mannix Porterfield
Register-Herald Reporter

CHARLESTON — Senators agreed Tuesday that one’s home is a castle, open to the wind but not to intruders with evil in mind.

And if any is caught pilfering, the owner is allowed to use deadly force, and may use the fear of a threat the intruder poses as a “full and complete defense” in case the burglar files a lawsuit over his wounds.

As things turned out, the bill’s leading proponent the past two sessions, Sen. Shirley Love, D-Fayette, wasn’t around to take part in the 32-0 tally that propelled the “Castle Doctrine” bill on to the House of Delegates.

Love missed a second straight day, tending to an ailing sister in another state, his secretary explained.

Senate Judiciary Chairman Jeffrey Kessler, D-Marshall, made note of Love’s lead sponsorship of the bill, saying it was intended to protect families and homeowners from acts of invasion and violence.

A stronger version was offered in time to beat the 41st day deadline for offering legislation by Senate Transportation and Infrastructure Chairman John Unger, D-Berkeley.

Unger offered his own tack, one that would disallow a wounded intruder to even file a lawsuit in the first case.

In the Eastern Panhandle, Unger said, seniors increasingly have become targets of burglars who apparently consider them easy marks for break-ins.

To Unger, the idea of a senior citizen forced to use deadly force to thwart an invader, then face a lawsuit, was unthinkable.

“They amend it over in the House and it may have to come back for conference,” Unger said.

For now, he said, the Senate at least has a Castle Doctrine bill out, and like any other proposed law, it can be altered if the need presents itself.

“We can always come back and tweak it in the future, be it this session or a future session,” he said.

The measure was pushed by the National Rifle Association, and so far, at least 20 states have some form of it.

Perhaps, Unger suggested, seniors could be accorded some extra protection outside the concept of the Castle Doctrine.

“Maybe in enhanced penalties or whatever to people who prey on seniors and put them at risk,” he said.

“Who knows what we can do as far as the crimes and type of penalties associated with it?”

WV Senate Committee Passes “Castle Doctrine”

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Note: Some states impose a duty to retreat from an intruder, even in one’s own home. Although West Virginia does not impose an actual duty to retreat from confrontation in one’s own home, it has somewhat been left up to interpretation. Furthermore, homeowners legally defending themselves can be sued civilly for personal injuries to an intruder – which is absolutely ludicrous.

This legislation is common sense. We know that in WV, especially in rural counties, we cannot depend on calling 911 to protect us from home intruders. We must be allowed to protect ourselves and our families from the crazy people of this world. As Charlie Daniels said, he’s “the kind of man that wouldn’t harm a mouse,” but if he catches somebody breaking in his house, he’s “got a twelve gauge shotgun waitin’ on the other side.” – John H. Bryan, West Virginia criminal defense attorey.

From today’s Beckley Register-Herald:

Panel approves ‘Castle Doctrine’ proposal

Mannix Porterfield
Register-Herald Reporter

CHARLESTON — West Virginians could yet face a lawsuit for gunning down an intruder in their homes, but using deadly force to protect hearth and home would be a “full and complete defense” in court under a Castle Doctrine bill approved Wednesday.

Without any discussion, other than counsel’s brief explanation, the measure cleared the Senate Judiciary Committee unanimously.

For two years, Sen. Shirley Love, D-Fayette, has pushed the idea at the behest of the National Rifle Association, which has succeeded in getting similar bills enacted in 20 other states, starting with Florida.

While existing state law doesn’t require that a homeowner retreat as much as possible to avoid a showdown with an intruder, as some states insist, it does leave open the door to civil suits by a wounded prowler.

Under the committee-approved bill, however, the “justified use of reasonable and proportionate force” can be used as “a full and complete defense to any civil action” pursued by an intruder or attacker.

“People have got to remember, this is not a license to kill,” Love said after the committee, on which he doesn’t serve, moved the measure out with a favorable recommendation.

“This is something that gives you protection in your own home.”

Last year, the full Senate approved an identical bill, but it became mired in the judiciary committee of then-new Chair Carrie Webster, D-Kanawha, in the House of Delegates.

The measure draws its moniker from old English common law that held every citizen, regardless of station in life, could consider his property as a castle, in which, as one old saw held, the wind, but not the king, may enter.

“It’s a bill that a high majority of West Virginians have wanted for so long,” Love said.

In the Senate, the sentiment was unanimous. All 34 members have signed on to it.

“It’s been the intruder that has been protected by the law instead of the home that he’s intruding in,” Love said.

Judiciary Vice Chairman Mike Oliverio, D-Monongalia, pointed out West Virginia enjoys the lowest crime rate in the nation.

“But I think West Virginians really support their Second Amendment rights,” he said.

“And they believe it’s important that they be able to protect themselves. “

Over the years, he said, courts have issued rulings that reflect those constitutional guarantees.

However, Oliverio said a new Supreme Court some day might not see things as the current one does with regard to the Second Amendment.

“There may be changes that impact the ability for persons to protect themselves the way they see fit,” he added.

Burglar Shot By Homeowner In Beckley

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From today’s Beckley Register-Herald:

A Fayette County burglary suspect was shot by a homeowner who police said was burglarized by the same suspect at least one other time.

Nighttime burglary charges are pending against Tracey Ann McQueen, 25, of Kaymoor Road, Fayetteville, Sheriff Bill Laird said. McQueen was taken to Charleston Area Medical Center Wednesday morning for treatment of a single gunshot wound to her left hand. She was under evaluation at the hospital as of Wednesday afternoon.

At 4:45 a.m. Wednesday, the Fayette County 911 Center was notified of a burglary in progress at a Pleasant View Road residence, near Fayetteville, Laird said. Later, the alleged burglar was reported to have been shot in the hand by the homeowner. When deputies arrived at the scene, the homeowner said the female suspect fled.

A short time later, deputies identified the suspect as McQueen, Laird said. McQueen was located at a Kaymoor Road residence and taken to Plateau Medical Center. She was later transferred to CAMC.

The preliminary investigation indicates the female victim was awakened to find McQueen inside the residence, Laird said. The victim confronted McQueen, attempting to hold her at gunpoint while awaiting deputies’ arrival. A struggle ensued, during which McQueen was apparently shot by the victim’s .22 caliber revolver.

Laird said McQueen had been charged with burglarizing the same residence Nov. 4, and she was free on bond when the latest incident occurred. McQueen was also considered a primary suspect in at least one other previous incident at the same residence. Reports indicate the victim’s house had been burglarized on several other occasions during the past few months.

McQueen is believed to have, in the past, lived near the victim’s residence, Laird said. Laird was unsure if McQueen and the victim actually knew each other.

No charges have been filed against the homeowner, Laird said.

Investigations into this incident and all other previous crimes at the residence are ongoing, Laird said. Deputies T.N. Mooney and W.K. Willis and sheriff’s detective bureau are investigating.

Note: The headline used by the Register-Herald was “Sheriff: Burglary suspect shot by homeowner.” I believed this to be a little ridiculous, so I changed it to “Burglar Shot by Homeowner in Beckley.” Sometimes the press can get a little carried away with the words “alleged” and “suspect.” Even a criminal defense attorney can say here with absolute certainty that this person was a “burglar,” not a “suspect.” Also, why is it necessary to indicate in the headline that it came from the Sheriff? The point is, that the media sees the real criminal as any homeowner with the audacity to protect themselves with guns – as we have a right to do in this country (well, in West Virginia anyways; according to Mayor Bloomberg and other fanatical big-city mayors, you lose that right when you cross rust-belt city limits) This point of view is apparent towards the end of the article, where the author, as if she was surprised, notes that “No charges have been filed against the homeowner….” Let’s hope the author of this article never runs for prosecuting attorney. – John H. Bryan, Attorney at Law.