Posted on February 18, 2022 by Andrew Branca in Uncategorized
“Popcorn Murder” Trial Coverage by Andrew Branca Day 4
The opinions and statements made in this article are solely those of Andrew Branca and do not represent any position or opinion of CCW Safe. We chose to share this content in order to provide some insight to the trial process.
Popcorn Shooter Trial Day 4: State Rests, Court Denies Defense Motion for Judgement of Acquittal
Yesterday was the fourth day of testimony in the murder trial of Curtis Reeves, the retired Tampa SWAT Captain who shot and killed Chad Oulson in a local movie theater in January 2014 after the two men had a verbal altercation that became physical.
Today the State moved through three more witnesses, which proved to be their last before resting their case-in-chief. The defense then moved for a judgement of acquittal, a routine motion in criminal cases at this point, which was as routinely denied by the judge. Today the defense will begin to present its case-in-chief to the jury.
Today’s Live Stream
Live stream analysis and commentary over at Rekieta Law’s YouTube channel. You’ll be able to find today’s live show for the fifth day of this trial at: http://lawofselfdefense.com/popcorn5
Allen Proctor, then-Homicide Detective
The first witness of the day was the continued testimony of then-Homicide Detective Allen Proctor, who was the lead investigator on this case. Proctor had been subject to direct questioning by the State yesterday, which testimony included the two recorded interviews he’d done of Reeves immediately following the shooting. You can find all this prior day’s coverage of the trial, here:
Popcorn Shooter Trial Day 3: Defendant’s Recorded Statements Consistent with Self-Defense
Yesterday Proctor was subject to cross-examination by the defense, specifically by lead defense counsel Richard Escobar, and that cross can only be described as a brutal experience.
Escobar repeatedly compelled Proctor to concede hat the had violated this and that investigative policy, that he had failed to handle this and that evidence correctly, and most painfully that he had failed to gather even the most minimal evidence required to assess whether Reeves’ claim of self-defense might have been sufficiently reasonable to prevent a conclusion of probable cause to arrest Reeves on the charge of second-degree murder.
Florida, where this shooting occurred, is among a few states that have a specific statutory provision that prohibits the police from making an arrest in a case of claimed self-defense unless they have determined that the self-defense claim sufficiently lacks merit that probable cause exists for an arrest despite the claim.
In other words, that prior to arrest the investigating officer is supposed to determine both whether probable cause exists with respect to the elements of a crime of violence for which the suspect could be arrested and also whether probable cause exists to believe that the purported crime of violence was actually an act of self-defense.
Here’s that statutory language, drawn from Florida’s self-defense immunity statute, § 776.032:
(2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.
As a matter of typical investigatory practice, police generally only do the first of those two steps—determine whether probable cause exists with respect to a possible crime of violence—without also assessing the claim of self-defense. If probable cause for the crime exists, they make the arrest, and leave self-defense to be argued further down the criminal justice pipeline.
Naturally, that means considerable inconvenience, expense, and legal risk for a suspect whose use of force was, in fact and law, genuine self-defense. The Florida legislature (and other states who have adopted similar provisions) are seeking to avoid this unnecessary inconvenience, expense, and legal risk in cases of genuine self-defense by having investigative officers consider self-defense as a legal justification prior to making an arrest in the first place.
Proctor took few of the investigative steps available to him on the scene that would have allowed him to evaluate Reeves’ claim of self-defense in the moment. Indeed, he never even glanced at the scene of the shooting itself, to gather a sense of whether Reeves’ claim of self-defense would appear reasonable given the physical circumstances of that scene.
And remember, Proctor was the lead investigator on this case—even though this was only the second case involving self-defense that he’d ever worked as a homicide detective, a fact he was also obliged to concede to the defense on cross-examination.
In short, it was a thoroughly humiliating cross-examination of Proctor, almost brutal to watch over its more than two-hour length:
Allen Proctor, Cross-Examination
Allen Proctor, Re-Direct
The State did engage in a brief, less than 10-minute, re-direct examinaton of Proctor in an attempt to repair some of the damage done on cross, but with little effect:
Final Two Theater Eye Witnesses
The final two State witnesses were two more eye witnesses who were patrons in the theater along with Reeves when the confrontation that would result in the death of Oulson occurred.
These two witnesses shared in common that they would testify that Reeves had said something to the effect of “throw popcorn in my face, will you,” around the time of the fatal shot, suggesting that the shooting was one of malice rather than self-defense. As such, this was some of the more dangerous testimony for the defense.
The first of these was Mark Turner, a retired Air Force intelligence officer. As has often been the case with these State theater eye-witnesses, he came across on direct as providing honest testimony, but then was substantively impeached on cross-examination by contrary statements made under oath in earlier depositions or in the 2017 self-defense immunity hearing.
In the case of many of the prior theater eyewitnesses, their impeachment on cross was strongly resisted, reinforcing the perception of an intentional bias against the defense. I didn’t get this sense from Turner, who mostly seemed willing to concede that this or that current testimony was inconsistent with some prior statement, without taking it personally when this was pointed out to him.
Indeed, this appeared to be a rare misstep of the defense on cross-examination, with lead defense counsel Richard Escobar appearing to come at Turner much more aggressively on cross-examination than seemed appropriate.
Yes, Turner’s testimony about “throw popcorn in my face, will you,” is damaging to the defense, but there exist more subtle means of impeaching such recollection other than suggesting the witness is simply being untruthful.
After all, memories may change over time, after making many re-tellings to others, after reading many accounts of others—there are innocent reasons for why a witness may mistakenly recall an event. It would, perhaps, have been better for Escobar to take a gentler approach with this witness, and still effectively impeach his recollection on this point.
Mark Turner, Direct Questioning
Mark Turner, Cross-Examination
Mark Turner, Re-Direct
Mark Turner, Re-Cross
The final witness for the state was another theater eye witness, one Derek Friedhoff, a nurse. Friedhoff appeared substantially younger than pretty much every other witness. He was also the only witness to wear a facemask for the duration of his testimony.
Also notably, Friedhoff had attempted to provide CPR to the fatally wounded Oulson on the scene, conduct for which he would later receive a citizen’s award in the form of a plaque from the State.
As did Turner, Friedhoff would also testify that Reeves had said words to the effect of “throw popcorn in my face, will you” around the time of the shooting. Unlike Turner, Friedhoff did come across as more substantively biased against the defense in this case.
Notably, it was defense counsel Dino Michaels who conducted cross-examination of Friedhoff, and he did indeed take a much gentler approach with Friedhoff than Escobar had with Turner, and to good effect.
Right up to the last question of the defense, that is, where defense counsel Michaels suggested that perhaps Friedhoff was biased in his testimony because of the plaque he had received for attempting to save Oulson’s life—that is, that Friedhoff’s testimony had in some manner been “bought” by having been treated as a hero by the State.
This was a rare misstep by defense counsel Michaels, if we exclude his train wreck of an opening statement, and makes me wonder if this particular issue was suggested to him by lead counsel Escobar. In any case, it came across as rather ridiculous, a characteristic the State would exploit in a brief re-direct of Friedhoff.
Derek Friedhoff, Direct Questioning
Derek Friedhoff, Cross-Examination
Derek Friedhoff, Re-Direct
Judge Denies Defense Motion for Judgement of Acquittal
The State then rested its case-in-chief, after which the defense motioned for a judgment of acquittal (JOA). Such a motion is routinely made once the State rests its criminal case, and is as routinely denied by the court, so it’s no surprise it was denied here, as well.
In effect, the motion for JOA requires the judge to look at all the evidence in the light most favorable to the State—wherever evidence is ambiguous or contested, it is presumed the State’s version is correct—and to acquit the defendant by order of the court only if a jury seeing the evidence in that light could not reasonably come to a verdict of guilty.
Any even minimally competent prosecution will ensure that there’s at least some scintilla of evidence on each of the criminal elements sufficient to meet this standard and avoid a JOA.
Here lead defense counsel Richard Escobar made a rather novel argument that it was the State itself that had introduced evidence of self-defense, in the form of the recorded video interviews of Reeves in which he claimed self-defense, the burden was immediately on the State to have introduced at least some evidence counter to self-defense prior to resting—and, he claimed, they had failed to do so.
Because the State had failed to rebut self-defense, in the view of the defense, after having raised the defense themselves in their case-in-chief, defendant Reeves was entitled to the requested JOA.
Here the legal analysis by the State, responding to this motion, and by Judge Barthle in denying the motion, was remarkably weak and off point.
The proper legal analysis would have been to consider each of the required legal elements of Reeves’ claim of self-defense—the elements Innocence, Imminence, Proportionality, and Reasonableness—noting that the State need rebut only one of these in order for the question of self-defense to avoid a JOA and be properly within the province of the jury, and then pointing out where the State’s case-in-chief had done precisely that.
Recall, at this point the State does not need compelling evidence rebutting any single required element of self-defense, it needs essentially any scintilla of evidence doing so.
And such evidence was raised with respect to the elements of Imminence (the fight was over when the shot was fired), Proportionality (whatever threat Oulson posed was merely non-deadly in nature), and Reasonableness (that Reeves perceptions, decision, actions, were not objectively reasonable). The evidence on the element of Innocence was thinner on the ground, but as noted not necessary.
Instead, the State made the kind of loosey-goosey argument against JOA that they make in essentially every criminal trial, and that admittedly works in essentially every criminal trial—where the judge is always primed to reject the motion for JOA—and that, indeed, worked here.
Judge Barthle’s explanation for why she denied the JOA was also pretty loosey-goosey and not founded on what I would consider a robust legal analysis, but regardless we ended up at the same endpoint anyone experienced in criminal law would anticipate—the denial of the defense motion of the JOA.
Argument and Denial of Motion for JOA
Defense Begins Case-in Chief Today
With that, the court turns to the defense case-in-chief today. Over the next several days we can expect testimony from the defendant, Curtis Reeves, himself, which ought to be consistent with his lengthy, roughly 2 ½ hour testimony, in his self-defense immunity trial. We are also likely to hear from Vivian Reeves, wife of the defendant and witness to the shooting, as well as from a bevy of expert witnesses and others.
Verdict Prediction, If Law & Evidence Control
As all of you know, I don’t predict verdicts, so that header is a bit misleading. All I can do with confidence is assess what a just verdict ought to be when considered within the confines of the relevant law and evidence.
Juries, however, are dangerous and unpredictable creatures—in other words, human beings—and daring to predict what an anonymous jury might do is too hazardous for my taste.
Evaluating a theoretical verdict based on solely law and evidence, however, I have to come down solidly on the side of not guilty.
Is there ambiguity in Reeve’s claim of self-defense? For sure. And if the legal threshold here were a mere preponderance of the evidence, I could see a rational jury falling on either side of the question—essentially, a coin toss.
But the legal standard at trial is not a mere preponderance of the evidence. At trial the State is obliged to disprove self-defense beyond a reasonable doubt, beyond any ambiguity. In a manner precisely opposite to that described for a motion for judgment of acquittal, where all the evidence is looked at in the light most favorable to the State, in the context of deliberating a verdict the defense is presumed innocent.
And in a legal schema in which the defendant, Curtis Reeves, is presumed innocent until self-defense has been disproven beyond a reasonable doubt, I don’t see the State as having met that burden at the point it rested its case-in-chief—which ought to be the anticipated high-point of the State’s legal argument and evidence. From here, the State’s position can be expected only to degrade further as the defense has the opportunity to present its own legal arguments and evidence in the defense case-in-chief.
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.
Attorney Andrew F. Branca is in his third decade of practicing law, specializing in self-defense law of the United States, where he is an internationally recognized expert. Andrew has contributed in this context by the Wall Street Journal, National Review, the Chicago Tribune, the Washington Post, and many others, including nationally syndicated broadcast media. Andrew is also a host on the Outdoor Channel’s TV show The Best Defense and contributor to the National Review Online.
Andrew is a former Guest Instructor and subject matter expert (SME) on self-defense law at the Federal Bureau of Investigation’s National Academy at Quantico and the Sig Sauer Academy, an NRA Life-Benefactor member, an NRA Certified Instructor, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions. Andrew teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country.
In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.
Recently, Andrew won the UC Berkeley Law School Debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting on self-defense law.