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  • DAL
    replied
    Another story: Prosecuted on attempted murder charges for shooting several times but only causing injuries

    Former Navy seaman facing attempted-murder charges

    By JULIE SHAW
    Philadelphia Daily News

    [email protected] 215-854-2592
    The former Navy seaman accused of fatally shooting 5-year-old Cashaé Rivers in Strawberry Mansion in 2006 faced another preliminary hearing in court yesterday - this time on attempted-murder charges.

    About six hours after Cashaé was shot, Noel "Pablo" Garcia, now 23, allegedly hunted down and fired multiple shots at a witness to a 2005 murder.

    The witness, Jason Couch, was not hit. Instead, two bystanders were injured.

    Garcia, of Frankford, faces three counts each of attempted murder and conspiracy in this other shooting, which occurred about 4:30 p.m. on Sept. 24, 2006.

    Yesterday in court, Garcia's buddy, Ronald Newton, 20, testified as a prosecution witness, which apparently did not please Garcia.

    At one point, Garcia cried aloud to his defense attorneys: "He's not the one facing the death penalty! He's the best witness they could get," referring to Newton.

    Garcia has already been held for trial on murder and weapons charges in the killing of Cashaé - who was hit as she sat in the back of her mother's car at about 10:30 a.m. at 34th and Huntingdon streets. Prosecutors are seeking the death penalty against him in Cashaé's slaying.

    Authorities had first charged Kevin Felder, a friend of Garcia's and Newton's, in the girl's murder. Those charges were later dropped when new information revealed that Garcia was the alleged shooter.

    Yesterday, Newton testified that:

    Sometime between 11 a.m. and noon that day, Garcia and other friends picked him up at his West Philadelphia apartment building in Garcia's out-of-state rental car.

    Later, when they were all at a house on Lesher Street in Frankford, they saw on TV that a little girl had been shot and killed.

    Garcia then spoke about getting rid of a gun, which he had in the car earlier. Newton said he then saw Garcia disassembling a semiautomatic handgun and putting it in a bag.

    About 1 p.m., Newton and Garcia called Felder, then met up with him at the Neshaminy Mall in Bensalem, Bucks County. At the mall, Garcia asked Felder if he knew who shot the little girl, to which Felder replied no.

    When asked by Assistant District Attorney Jennifer Selber why Garcia decided to ask Felder about Cashaé's shooting, Newton replied: "That was his neighborhood."

    Felder, 26, lived in the Strawberry Mansion neighborhood where Cashaé was shot.

    Newton testified that he and Garcia then returned to the Lesher Street house, and after "sitting around talking for a little while," Garcia decided he wanted to find Couch - the 2005 murder witness - and, if need be, "get rid of him."

    Felder, Garcia's friend, had been charged with intimidating Couch, a witness to a Dec. 23, 2005, shooting in which Habeeb Nolan, 22, was killed. Tyre "Wink" Tucker, 23, was charged with the murder. (Felder and Tucker were acquitted of those charges last year after a jury trial. Authorities could not find Couch for the trial.)

    Newton further testified yesterday:

    After Garcia spoke of finding Couch, they went to pick up another friend - Anthony Brown - because Brown had a gun.

    Garcia drove to Couch's North Philadelphia neighborhood, where they spotted him outside a store. Garcia then switched to the front-passenger seat "because [he] wanted to be the shooter," Newton testified.

    After circling around the block, with Brown driving, they again spotted Couch near his house on Colorado Street near Cumberland. Garcia then shot at Couch at least four times.

    They then drove away. Newton and Garcia later called Felder, then met up with him again at the Neshaminy Mall sometime after 5 p.m. At the mall, they told Felder "what happened to Jason Couch," Newton testified.

    Couch, however, was not hit in the shooting. Rather, two bystanders, Virginia Bing and Charles Ingram, were shot and injured, authorities said.

    Garcia's preliminary hearing before Common Pleas Judge Benjamin Lerner is scheduled for a second day, on April 9, when Bing and Ingram are expected to testify.

    Leave a comment:


  • Dinosaur32
    replied
    Notice the court wrote that if your action causes the death of a person an intent to kill can be inferred from your action.....at the end of the opinion the court only speaks of injury. The court omitted the word death.

    Leave a comment:


  • Guest's Avatar
    Guest replied
    Originally posted by DAL View Post
    Proof beyond a reasonable doubt isonly required at trial, not a bond hearing, probable cause hearing or preliminary hearing. You should know that from your experience as a court officer. Furthermore, inferences from the natural consequences of the defendant's acts can suffice as proof beyond a reasonable doubt.

    Here is an excerpt from a 2003 Penssylvania appellate opinion that I found:

    ¶ 12 Generally speaking, one is presumed to intend the normal
    consequences of one’s actions.6 When someone punches another, the
    common experience is that such a blow will deliver pain and discomfort, but,
    “[W]e know of no proposition more consistent with human experience than
    the conclusion that absent circumstance to the contrary, a person intends
    the natural and probable consequences of his act.” Commonwealth v.
    O’Searo, 352 A.2d 30, 36 (Pa. 1976). “A well-recognized and generally
    accepted inference to establish state of mind is that an actor intends the
    natural and probable consequences of his acts. … Where one does not
    verbalize the reasons for his actions, we are forced to look to the act itself to
    glean the intentions of the actor. Where the intention of the actor is obvious
    from the act itself, the finder of fact is justified in assigning the intention
    that is suggested by the conduct. If a deadly force is knowingly applied by
    the actor to the person of another, the intent to take life is as evident as if
    the actor stated the intent to kill at the time the force was applied.”
    Commonwealth v. Meredith, 416 A.2d 481, 485 (Pa. 1980). Unless the deliverer of the blow is a heavyweight champ striking a vital portion of the head, there is not an expectation that death or serious injury will ensue.7 This is not to say that serious bodily injury could not result from a punch. Under rare circumstances, death or serious injury can ensue, even when not intended. Nevertheless, while criminal liability might attach for the infliction of serious injury or death in this circumstance, it is based upon a negligent or reckless infliction of that injury, not upon intentional infliction.

    ¶ 13 Conversely, it is certainly understood that the firing of a gun at
    another is likely to inflict death or serious injury. Thus, when someone fires
    a handgun at another, it is assumed the intent was to inflict serious bodily
    injury or death. The shooter might miss the target, or the bullet might
    strike something between the muzzle and the intended target or the bullet
    might simply graze the intended victim causing only superficial injury. In
    these circumstances, even though serious injury or death was not actually
    inflicted, it can be safely presumed the intent to inflict such injury was
    present because it is a common consequence of taking that action.


    http://www.courts.state.pa.us/OpPost.../a18039_02.PDF
    Good lookup. This is what I was trying to point out earlier. There are consequences to certain actions even if they don't specifically cause what is normally caused.

    - V

    Leave a comment:


  • DAL
    replied
    Originally posted by Dinosaur32 View Post
    You are thinking rationally..........kid jumping out in front of your car, where's your criminal liability. The "intent" under discussion here is the "intent" that a judge must define to a jury. It is the People's burden to prove the "intent" beyond a "reasonable doubt". What you and I and everyone else on this forum may consider to be "intent" is not necessarily the "intent" that the judge must define to the jury. Your intuitive understanding of a perp's intent is not always the same as the pattern jury instructions. Real life and courtroom life only rarely run a parrallel course.
    Proof beyond a reasonable doubt isonly required at trial, not a bond hearing, probable cause hearing or preliminary hearing. You should know that from your experience as a court officer. Furthermore, inferences from the natural consequences of the defendant's acts can suffice as proof beyond a reasonable doubt.

    Here is an excerpt from a 2003 Penssylvania appellate opinion that I found:

    ¶ 12 Generally speaking, one is presumed to intend the normal
    consequences of one’s actions.6 When someone punches another, the
    common experience is that such a blow will deliver pain and discomfort, but,
    “[W]e know of no proposition more consistent with human experience than
    the conclusion that absent circumstance to the contrary, a person intends
    the natural and probable consequences of his act.” Commonwealth v.
    O’Searo, 352 A.2d 30, 36 (Pa. 1976). “A well-recognized and generally
    accepted inference to establish state of mind is that an actor intends the
    natural and probable consequences of his acts. … Where one does not
    verbalize the reasons for his actions, we are forced to look to the act itself to
    glean the intentions of the actor. Where the intention of the actor is obvious
    from the act itself, the finder of fact is justified in assigning the intention
    that is suggested by the conduct. If a deadly force is knowingly applied by
    the actor to the person of another, the intent to take life is as evident as if
    the actor stated the intent to kill at the time the force was applied.”
    Commonwealth v. Meredith, 416 A.2d 481, 485 (Pa. 1980). Unless the deliverer of the blow is a heavyweight champ striking a vital portion of the head, there is not an expectation that death or serious injury will ensue.7 This is not to say that serious bodily injury could not result from a punch. Under rare circumstances, death or serious injury can ensue, even when not intended. Nevertheless, while criminal liability might attach for the infliction of serious injury or death in this circumstance, it is based upon a negligent or reckless infliction of that injury, not upon intentional infliction.

    ¶ 13 Conversely, it is certainly understood that the firing of a gun at
    another is likely to inflict death or serious injury. Thus, when someone fires
    a handgun at another, it is assumed the intent was to inflict serious bodily
    injury or death. The shooter might miss the target, or the bullet might
    strike something between the muzzle and the intended target or the bullet
    might simply graze the intended victim causing only superficial injury. In
    these circumstances, even though serious injury or death was not actually
    inflicted, it can be safely presumed the intent to inflict such injury was
    present because it is a common consequence of taking that action.


    http://www.courts.state.pa.us/OpPost.../a18039_02.PDF

    Leave a comment:


  • Dinosaur32
    replied
    You are thinking rationally..........kid jumping out in front of your car, where's your criminal liability. The "intent" under discussion here is the "intent" that a judge must define to a jury. It is the People's burden to prove the "intent" beyond a "reasonable doubt". What you and I and everyone else on this forum may consider to be "intent" is not necessarily the "intent" that the judge must define to the jury. Your intuitive understanding of a perp's intent is not always the same as the pattern jury instructions. Real life and courtroom life only rarely run a parrallel course.

    Leave a comment:


  • DAL
    replied
    Originally posted by nycool2
    I don't think that can be true in every case.
    Of course.

    Example 1: Kid jumps out in front of my car without warning. I run him over and kill him. There is no intent to kill despite the fact that a death occurs.

    Example 2: A doctor prescribes a drug for the patient. The patient has no history of allergies. The patient nonetheless experience anaphylactic shock and dies. No intent to kill even though death occurs.

    Example 3: We get into a fight. I punch you, and you fall over, hit your head on a rock, and die from the concussion. No intent to kill, because death is not a likely consequence of my actions.

    Conversely:

    I shoot a police officer in the chest 10 times with a submachine gun. He does not die because he is wearing a vest. Nearly everyone would find an intent to kill.

    I place a powerful explosive device in the receiver of someone's phone. It detonates when he answers the phone, but the victim drops the receiver and it only blows off his legs and he survives. Nearly everyone would find an intent to kill.

    Intent is proved by the totality of the facts and circumstances.

    Leave a comment:


  • Dinosaur32
    replied
    Actually the result of the act proves the intent........so a shot to the head that that kills proves the intent to kill.....a shot to the leg that injures only proves an assault....possible consequences do not prove attempted murder...........as the saying goes a miss is as good as a mile.

    Leave a comment:


  • DAL
    replied
    Originally posted by Dinosaur32 View Post
    I know that this is not a very popular thought here, but the judge was probably correct. Once again, Attempted Murder is almost impossible to prove. Most crimes are proved by the act, so in shooting or stabbing a person, causing a serious injury, your act alone is proof of your intent to cause that injury, making you guilty of assault. BUT to raise that assault to an Attempted Murder, the prosecutor MUST prove your intent to kill, which is virtually impossible, unless you make an admission.
    First of all, this was not a trial. Therefore, the beyond a reasonable doubt standard on which you are implicitly relying does not apply. It was at most a probable cause hearing.

    Second, intent can be inferred from the ordinary consequences of one's act. Most states have a pattern jury instruction to that effect. So, if I shoot you right between the eyes while holding a gun and pointing it at you, a trier of fact may infer that I intended to kill you, regardless of what I say -- even if I say that it was an accident, or even if the gun is loaded but misfires.

    Conversely, while intent to cause an injury is a permissible inference from the fact that an injury occurs, the injury can occur without there being an assault. For example, if I am holding a knife and slip and stab you with it, there would be considerable doubt about whether I intended to injure you, so I probably would not be found guilty of assault.

    In this case, the suspect shot the officer and then fired at him two more times. Considering the effect of rifle bullets on the human body, one might reasonably infer that he was trying to kill the officer.

    Leave a comment:


  • mdrdep
    replied
    Originally posted by Dinosaur32 View Post
    Dal you are correct......I was trained that in any shooting scenario where the BG might be wearing body armor to shoot for the head and again the training was to end the threat not to shoot with the intent to kill. Nowhere is it written that only LEOs have an inherent lack of intent to kill when using deadly physical force. If it is legitimate to say that a cop was only shooting to stop a threat it must also be legitimate to say that a BG was shooting to stop a threat. The BG's very act of shooting may be illegal but proving it is an attempt to kill is nearly impossible.
    Dino yes we are shooting to stop the threat, but what kind of force do we call it? Stop the threat force or DEADLY FORCE. What you are employing is deadly force under the protection of justifiable homicide. ERGO; Attempted Homocide. Thus just as applicable to this kid but without the justification to use force and therefore we arrive at a charge of attempted murder.

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  • Guest's Avatar
    Guest replied
    With all due respect guys (and believe me, I understand what you're trying to say) we're splitting hairs here.

    Yes, we are trained to shoot the way we shoot in order to stop the threat, incapacitate, etc. But that doesn't change the underlying fact that the reason those are our best options for incapacitation is because there is a higher probability of causing death.

    I understand that we don't want to be labeled that we intentionally go out and try to kill people, but dancing around it with words and terms doesn't change the underlying fact. We are trained to shoot that way because death is the surest and fastest form of incapacitation and stopping the threat.

    Coloring the wording doesn't change the basis for why it is what it is. Center mass gives us the highest probability (in a stressful situation) of scoring lethal hits (which immediately stops the threat). If we don't manage to score a lethal hit but the subject is incapacitated, so be it, and we are trained to immediately stop firing (as it should be). Subject might live, might not but we are not executioners. We use lethal force in order to protect innocent life and stop when we've achieved that outcome, one way or the other.

    I do understand the reason some Officers choose cling to those terms and I do not at all look down upon them for it. I am just a little more comfortable with saying what it really boils down to. Killing someone who is trying to kill me is the best chance I have for survival.

    Let me put it another way. Say it was a deadly physical force confrontation, suspect is close-in, shooting at me with a gun on top of a downtown skyscraper and my best way to stop is threat is simply to push him off the building. I would do it in a heartbeat knowing that the odds of it resulting in anything else but his death are slim to none. That is also a use of deadly physical force on my part, and I would feel absolutely secure in that decision as my life was on the line. Coloring it by saying I'm just stopping the threat by placing him 20 stories away from me very quickly doesn't really change the fact that I'm trying to kill him in order to live.

    While this type of scenario may not be common, it is very plausible. I've often played the "what if" training game considering what I would do if I came upon a traffic stop in which the bad guy was shooting at another Officer and in some of the scenarios I've run through my mind I found my best option was to run the suspect over. Just use of deadly physical force by another method.

    What it ultimately boils down to is that if I am acting against deadly physical force, I will use any means at my disposal to stop the threat. If the situation ever presented itself that the surest option was not to shoot at him, but to absolutely kill him with a better method which presented itself I would take that option in a heartbeat. Vice-versa, if a situation presented itself and I was authorized to use deadly physical force but there simply happened to be a less-than-lethal option which would end the incident, and that option was a sure thing (this is getting pretty hypothetical) I would use that option instead of deadly physical force. That type of situation might be pretty out there, but I suppose somewhere, somehow it's possible. Just trying to say that I realize we are NOT out there to go around intentionally trying to kill anyone we have justification to kill, but rather we DO try to kill when it's the best option to stop the threat.

    One last scenario (sorry, thought of something a little more plausible). Shooting occurs and I am close to the suspect and I have the shotgun out. I can easily go for a head shot due to proximity, even though center mass would have a huge chance of stopping the threat and not as large a chance of causing death as the headshot. I'm still gonna shoot him right in the head as I know it will kill him and stop the threat. No question I would.

    - V

    P.S. Sorry this post got so long. I've been trying to keep my points more concise, but don't always manage it.

    Leave a comment:


  • Dinosaur32
    replied
    Dal you are correct......I was trained that in any shooting scenario where the BG might be wearing body armor to shoot for the head and again the training was to end the threat not to shoot with the intent to kill. Nowhere is it written that only LEOs have an inherent lack of intent to kill when using deadly physical force. If it is legitimate to say that a cop was only shooting to stop a threat it must also be legitimate to say that a BG was shooting to stop a threat. The BG's very act of shooting may be illegal but proving it is an attempt to kill is nearly impossible.

    Leave a comment:


  • DAL
    replied
    Originally posted by vvincelli View Post
    If headshots had the same probability for hits as center mass we would absolutely be trained to shoot for the head as there is a higher probability of causing death, and thereby stopping the threat.
    Although shooting in the head is more likely to cause immediate incapacitation, I cannot agree with this reasoning. The object in shooting is (or should be) to stop the threat as quickly as possible. So you would (under the assumption stated here) shoot in the head because it is more likely to cause immediate incapacitation, not because it is more likely to cause death.

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  • Guest's Avatar
    Guest replied
    Quote:
    Originally Posted by tony.o
    If Obama becomes President, she'll probably be considered for a Supreme Court Nomination.

    There is a reason your eyes are brown right now and it has nothing to do with genetics.
    I don't really think that was called for.

    Originally posted by djack16 View Post
    Can one of you idiots whining about liberalism please point out how LIBERALISM has anything to do with this judges bogus ruling? It's like blaming conservatism for people not knowing the difference between a primary election or a general election. Or blaming conservatism for the ridiculous treatment of that woman at that Texas airport. It's irrelevant! People who are dumb are just that...DUMB.
    First off, what I dislike (and I discuss it openly, calmly and reasonably) is actually ANY form of extremism, whether it be on the liberal side OR the conservative side. When you get to thinking of anything in extreme terms you sometimes wind up with concepts like Jihad.

    This Judge's decision was ultra-liberal in-nature, regardless of her political affiliation, Due to the very definition of what liberal means. Vice-versa, by definition the ultra-conservative view would be to hang 'em high without even a trial (a stance I would also never support).

    So you ____________________________ (please supply any derogatory term you like. I won't stoop to your level but I'm sure with the attitude and mindset YOU have, your brain has already supplied a better one than I could), just who are you calling an IDIOT?

    Maybe the next time you waltz into a thread you'll take the time to learn a person's actual viewpoint before you start throwing around insults. Then again, I doubt it...

    - V

    P.S. It occurred to me that you may need it spelled out for you:

    Main Entry: liberal
    Pronunciation: \ˈli-b(ə-)rəl\
    Function: adjective
    Etymology: Middle English, from Anglo-French, from Latin liberalis suitable for a freeman, generous, from liber free; perhaps akin to Old English lēodan to grow, Greek eleutheros free
    Date: 14th century
    1 a: of, relating to, or based on the liberal arts barchaic : of or befitting a man of free birth
    2 a: marked by generosity : openhanded b: given or provided in a generous and openhanded way c: ample, full
    3obsolete : lacking moral restraint : licentious
    4: not literal or strict : loose

    5: broad-minded; especially : not bound by authoritarianism, orthodoxy, or traditional forms
    6 a: of, favoring, or based upon the principles of liberalism bcapitalized : of or constituting a political party advocating or associated with the principles of political liberalism; especially : of or constituting a political party in the United Kingdom associated with ideals of individual especially economic freedom, greater individual participation in government, and constitutional, political, and administrative reforms designed to secure these objectives
    Last edited by vvincelli; 03-29-2008, 06:18 AM.

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  • Guest's Avatar
    Guest replied
    Originally posted by Dinosaur32 View Post
    I was trained to fire at center mass, just as you were......but do you shoot to kill or do you fire at center mass to end the threat? If you choose option two, your intent is not to kill and proving Attempted Murder would be impossible. In the Sean bell trial....there is no charge of Attempted Murder even though all those rounds were let loose......because that would be impossible to prove.....as much as the DA would have liked to present that charge.
    You are right, we are trained to shoot center mass in order to stop the threat. But you have to look at the reason for that. We shoot center mass in order to stop the threat because it gives us the best chance to hit a vital organ which will cause death (and thereby stop the threat). Death does not always occur in a shooting, but it is without doubt use of deadly physical force.

    If headshots had the same probability for hits as center mass we would absolutely be trained to shoot for the head as there is a higher probability of causing death, and thereby stopping the threat.

    I have no problem whatsoever explaining this to a jury in an OIS. I have no problem saying directly to them that "Yes, I was indeed attempting to stop the threat by causing his death as he was shooting at me. If I had hit him and not killed him but the threat was removed I would have ceased fire (once my body caught up to my brains adrenaline reaction) but until the threat was stopped I was more than willing to cause his death to save my life."

    As for Sean Bell, well, which Prosecutors will seek which charge varies so much by location and other factors that it ain't even funny. I think the factors of that case are very different as Police Officers are saying they were in fear of deadly physical force - as opposed to someone just blasting away at an innocent. I think the DA's position is probably that they should not have believed they were in imminent danger of DPF even though they only had a split second to make the call (and so, no attempted murder charge). I really can't say though. I don't know what the DA is actually basing it on, but I CAN tell you that I think it's a ton of BS if the circumstances were what I have heard. No way they should even be on trial, but then again, politics, high-profile, celebrity... these things tend to disuade common sense.

    - V

    Hoped this helps.

    - V
    Last edited by vvincelli; 03-29-2008, 05:55 AM.

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  • AgentMan
    replied
    Wow, I find that judge to be full of crap. How can shooting at someone with the intention of killing not be attempted murder, and claimed "accidental". What if the guy actually killed the cop, would it be an "accidental death"?

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