TRANSCRIPT:

Don West: Welcome to another episode of our ongoing podcast In Self-Defense. Hi, I’m Don West, national trial counsel for CCW Safe and a practicing criminal defense attorney. I’m here with litigation consultant and the author of our ongoing self-defense articles, a compliment to our podcast and co-host of this podcast series, Shawn Vincent. Hey Shawn.

Shawn Vincent: Hey Don, what’s happening?

Don West: Nice to talk with you again. Do we have something interesting and informative today?

Shawn Vincent: Well I’d like to think that we always have something interesting and informative, but today I am excited to talk about this case because when I wrote about this case, we got some interesting comments from the readers. They basically said if you can’t use a gun and deadly force to defend yourself in this situation, then when can you? But yet, as clear as the details seem to some of our readers, this guy still got convicted of second degree murder and sent to jail for this self-defense incident. This is going to be the Gyrell Lee case. You’ve done a little bit of reading up on this too because when we get to the end of this, there’s a lot of interesting things that are happening in the appellate court on this case.

Don West: That’s exactly right. Unlike some of the cases that we analyze and talk about and break down into our four perspectives or elements of self-defense, this is one that has a very clear procedural history where the incident took place, there was a jury trial, ultimately a conviction and then at least — well, there were two stages in the appellate process, and I think the issues are important for our listeners to be aware of and I think overall this is a cautionary tale that will be of significant value for anyone that may find themselves in a potential lethal self-defense scenario.

Shawn Vincent: Yeah so we’re looking at self-defense case that was so controversial, or so close to the line — you and I have talked about this thin line between self-defense and murder, right? In this case, it’s so close to that line that two of the jurors who convicted him with second degree murder were crying when they delivered this verdict. That’s how upset they were, and then the fact that the Supreme Court in North Carolina stepped in and ended up vacating that conviction on a couple of important legal issues just shows how close it is. Let’s ratchet it up one more time. We’ve done nine of these. This is the eighth out of nine that we’re covering. All of them that we’ve looked at so far involved a shooter who shot an unarmed person. Right? In a lot of these cases there was some suspicion that maybe they had a gun, they didn’t know if they had a gun, but in the end the person who died, the attacker in some of these cases or the intruder in some of these cases ended up to be unarmed — hich obviously right off the bat makes them a very complicated case for the shooter.

Don West: Yes.

Shawn Vincent: Right, that imminent threat of death wasn’t as real as maybe the shooter thought it was at first. This case, the attacker, the guy who died, had a gun, had just shot the defendant’s cousin right in front of him, and then had turned the gun on him. That’s where some of the readers of the column were like, “What the heck? If he can’t use deadly force in that scenario, when can you?”

Don West: There are some facts in this case. I guess they’re facts in that this is information that was in the case that impressed the jury enough to ask questions and impressed the prosecutor enough to emphasize focusing on specific aspects of those final seconds which gave the prosecutor an argument why this wasn’t self-defense, but murder. Probably had some pretty significant impact on the jury because they asked a specific question, asked to review some testimony that related to a divot in the asphalt. I don’t want to get too far ahead of us on the facts.

Shawn Vincent: Sure let’s dive right into the story then.

Don West: Let me quote to you just-

Shawn Vincent: Please.

Don West: …two sentences from one of the appellate opinions that I think really helps set the stage for this discussion and emphasizes exactly how these self-defense cases can turn out to be only matters of seconds in terms of what’s legally important and then what is factually significant. We talk about these cases often from minutes that lead up to it or an ongoing sequence of events that culminates, but from a legal perspective whether there is that imminent threat, whether there is an opportunity to retreat, if there’s a legal requirement to retreat, whether there is proportional force, whether there is force used after the threat was neutralized; all of that stuff typically boils down to just a matter of seconds. The court in this case, this would be the North Carolina Supreme Court, in its opinion said this case is about what a man did in the few seconds after he saw his cousin get shot.

Don West: We, meaning the court, now have to consider that man’s response to this violent event in light of the doctrines of self-defense and defense of another under our stand your ground statutes. So I know you’ll lay the factual context for this and it extends well beyond just a matter of seconds, but this is the Supreme Court of North Carolina saying that’s where they focused their analysis. That’s where they decide in this instance, whether there were mistakes made at the trial level that would warrant a new trial. So that’s why I think in some regards it’s a cautionary tale factually because there’s a tendency in self-defense cases for people to get hung up on things that happened well in advance of the critical moment and sometimes to ignore those things that happened right after, which could factually and then legally, turn what might be a legitimate self-defense shooting into a criminal act.

Don West: What we have in this case are aspects of all of those things that we can expand in more detail and discuss how that might impact someone that’s listening should they ever become involved in a lethal self-defense situation. So sorry for the bit of a ramble and diversion, but Shawn let’s talk about the context of the Gyrell Lee case factually.

Shawn Vincent: Sure. So here’s what we’re going to do. We’re going to take ourselves Elizabeth City, North Carolina on the wee morning of New Year’s Day, 2013. That’s when Gyrell Lee, a guy, 24 years old, is spending New Year’s Eve into the morning with his cousin who he considered his best friend, Jamieal Walker. So they’re at Jamieal Walker’s house and they’re hanging out, outside sort of around the side of the house through most of the evening and there’s a guy named Quinton Epps, who according to the newspaper was a known troublemaker who had a little bit of beef with Walker. He comes by multiple times throughout the evening. It starts out calm enough, but everyone’s drinking. Epps comes by. Each time he’s more agitated. Each time the verbal confrontation becomes more aggressive, perhaps not more threatening, but there’s this mounting tension.

Shawn Vincent: At a certain point in the evening, Lee told investigators that he went to his car. He’s a licensed concealed carrier. He pulls out his .45 pistol and carries it with him now. He said, “just in case.” Indicating that he had some indication to think that things might get violent perhaps. Epps comes by again, he slow-rolls past Walker’s house and ends up parking his car a couple of houses down the street. Walker and Lee decide to walk down the street. They left the relative safety of Walker’s house, walk down the street to meet Epps there. Once they get there, a verbal altercation breaks out. It gets very heated. Lee can see that Epps has a gun behind his back.

Don West: Now at this point Shawn, the confrontation or the escalating argument is not between Lee and Epps, but Epps and Lee’s cousin.

Shawn Vincent: Yeah, Lee’s cousin Walker. So Walker and Epps are into it. Lee’s basically just maybe a bystander at this point, perhaps he’s there intentionally to basically get his cousin’s back if things go down. That’s something that becomes, I think, an issue for the jury when they have to deliberate this case.

Don West: Even though there’s nothing illegal about him getting his gun. He’s licensed to have it and having it — the prosecutor no doubt would attempt to say that Lee was preparing to do violence with the gun, whereas Lee would say I was taking some precautionary steps that if this thing got out of control, I would be able to protect my cousin and myself.

Shawn Vincent: Exactly and that’s the tack that the defense attorney would take at trial, but in the end you and I both know that it’s up to the 12 folks that you pick for the jury that are going to make that judgment. He did, he went there, he saw that Epps had a gun behind his back. Lee retrieved his pistol and then the verbal fight gets to a point where Lee’s cousin Walker punches Epps in the face. Epps’s response to this is to reach out, grab Walker’s top of his hood on his hoodie, and he takes his gun and he fires multiple times into Walker’s stomach. He shot him multiple times point blank range. Walker runs off and he ends up finding his way behind some house where he dies and he’s found sometime later. Then according to Lee, Epps turns his gun to him and that’s Lee’s now or never moment. He has his gun in his hand. He fires eight times and Epps falls to the ground. He eventually bled to death there in the middle of the street.

Shawn Vincent: I mean it’s important to add here that in a jailhouse call that the prosecutor’s got their hands on, Lee says that he would’ve shot earlier to protect his cousin, but in the tussling, he couldn’t “give a clear shot.”

Don West: So we have the issue raised through this call, but also there’s some factual support I guess that there could be a claim defense of others.

Shawn Vincent: Sure. The point, the Supreme Court Justices makes note of that.

Don West: Yes that’s exactly right and under certain scenarios you do have the right to defend another if you had the right to defend yourself under the same situation, and I think under the facts as you’ve outlined them as they played out, there was clearly a point in time where Lee would’ve had the legal right to defend Walker against Epps, but as he then later explained that you just pointed out, he said, “I was going to do that. I was thinking of doing that.” But because of where they were and how they were positioned together, he didn’t have a clear shot. So I guess what he’s really saying is he was afraid he would shoot his cousin instead of Epps.

Shawn Vincent: I think that’s right.

Don West: Keep in mind that whole thing probably lasted three or four seconds. Four or five seconds maybe.

Shawn Vincent: Of course, it always takes way more time to describe it than these events actually happen.

Don West: So then the critical fact there becomes, after Walker is shot, Epps turns and turns his gun toward Lee and by then, Lee has his gun out and is physically able to operate it and winds up shooting Epps several times, ultimately resulting in his death.

Shawn Vincent: That’s right, and then what happens next is very critical. Everybody including Lee flees the scene. Everybody takes off leaving Epps to die there in the middle of the street. In fact, Lee went and hid his gun under a garbage can and then fails to call the police. So when police get this phone call, there’s shots fired. They show up, they find Epps’s body there, they start getting witnesses together, and then they eventually find Walker a couple hours later dead behind a house. What they’ve got on their hands is a double homicide. They’re looking for somebody who’s murdered two people.

Don West: Sure. They have no information to the contrary at that point.

Shawn Vincent: Well they certainly don’t have the shooter making a self-defense claim at this point do they? Instead they ended up coming to pick him up the next morning. They’re looking at him for a double homicide. It was shortly thereafter, according to press reports that it was clear that they were only looking at him for the murder of Epps. They figured out Walker was the cousin, but now he’s got a real problem on his hands.

Don West: Sure. In addition to fleeing or rather failing to report, he also as you mentioned if not I will, he hid the gun.

Shawn Vincent: Yeah.

Don West: Well the prosecutor looks at this stuff and screams “consciousness of guilt.” This isn’t an innocent guy. This isn’t a guy who well may have committed the intentional act of firing his gun into someone else resulting in their death, is thinking that he did something wrong, so he is thinking that he better get out of there — and then compounding that by thinking he’d better get rid of the evidence that might connect him to this. So Lee starts off with a couple of big strikes against him in putting forth a self-defense claim.

Shawn Vincent: He does, but then he also starts out with this idea that he just watched his cousin be gunned down in the street by this guy who is still armed — certainly capable and seemingly willing to turn the gun on him, on Lee. If you don’t have the right to defend yourself in that situation, when do you have the right? That’s what the CATO Institute thought. They actually wrote a brief, a friend of the court brief, and submitted it when this appeal was going on. They wanted the Supreme Court of North Carolina to consider their arguments which is essentially that. In a case where there’s such clear violence happening right in front of you and you’re next. If not then, when? is the real question.

Don West: That’s exactly right, Shawn, and I wasn’t suggesting otherwise. What I was suggesting is that that explanation which seems to be corroborated by some physical evidence and ultimately maybe some additional testimonial evidence, took a while to get to the police because of the actions that Lee took immediately afterward that would raise questions about whether that explanation was in fact true or whether it was a story made up after the fact to claim self-defense.

Shawn Vincent: That’s what makes this case fascinating. From one perspective we have some really clear mistakes that were made that are going to weigh against him, but we also have on its surface what seems to be such an imminent and reasonable fear that you should have clear-cut self-defense. So with that set up, when we look at these cases, we call them on CCWSafe.com four elements of self-defense. Let’s talk about those elements and you pointed out that these aren’t legal elements. These aren’t necessarily going to be talked about in a court of law, but in all the cases that we looked at these are things that are present and have a huge bearing on the decisions made and how they’re interpreted. They’re common to every self-defense case.

Don West: Yes, that’s exactly right, and they also can impact which laws might apply in a given situation and presumptions in favor of the use of deadly force.

Shawn Vincent: Sure, so these four elements are location, escalation, reasonable fear, and post-incident actions. So let’s start with location because these nine cases that we’ve explored, we’ve broke those up into three different groups. The first three that you and I looked at were home invasion cases, or cases where someone in their home confronted an intruder and shot and faced a challenge to their self-defense claim. The second three cases that we looked at were cases that happen in or around cars. A lot of them were considered “road rage” cases. Then we looked at three cases that took place not in your car, not in your home, but someplace in the public where the shooter had a legal right to be and that’s where we are here with Gyrell Lee. He had every right to be in the street a couple doors down from his cousin’s house on New Year’s Eve.

Don West: So legally, we’re not claiming he was trespassing, not claiming he was committing any other crime. He was out there enjoying the rights as anyone else would have the right to in that particular situation. However, he perhaps doesn’t have the same kind of protections that you might have if you are in your home and confronted with someone who intends violence or even to some degree in your car when confronted by someone who intends you harm. This case we’re talking about now the location is particularly significant because it’s not in any of those areas that might be extra protected in terms of the law favoring the person who uses self-defense force.

Don West: In this case, everybody’s got about the same standing. No one’s defending their house, no one is in their car being attacked. These are guys out on the street each with the same right to be there.

Shawn Vincent: Yeah, I want to elaborate on that because when we look at the Castle doctrine, it’s pretty much understood in your heart and in the law that when you’re in your home, there’s no place that you have more of a right to be. There’s no place where you’d be more justified to protect yourself with deadly force given the right scenarios right?

Don West: Yes, and in fact, in virtually every state that I know of, you have extra protections if you’re in your home where your actions are presumed lawful. Where the person who invades your home is presumed to intend you harm. So the imminence is assumed or presumed. The fear of great bodily harm or death is somewhat presumed and then if your actions are reasonable in that context, you enjoy a very high probability of your conduct being excused because of the location coupled with, of course, your conduct significantly very, very important — but you have in a sense a leg up when you are trying to explain a self-defense scenario in your home.

Shawn Vincent: Sure.

Don West: The idea that your home is your castle. It’s the safest place you can be and that’s why the law never requires you to flee your home prior to defending yourself.

Shawn Vincent: Sure. Then when we looked at the Ronald Gasser case out of Louisiana. Rob Gasser was in a road rage incident with what turned out to be Joe McKnight, a famous football player. We know that in Louisiana, they specifically mention the car in their laws that if someone crosses that threshold of an open window or the door of the car uninvited, you’re specifically on more solid ground than otherwise. Similar to the Castle doctrine, it applies to the car. It’s not quite as strong, but it’s called out specifically by the law.

Don West: Yeah there’s typically a stature in place that extends some of the protections you would have in your home to the workplace and the car.

Shawn Vincent: Right. So you have more of a right to be in your car than somebody else. Especially someone uninvited, and I think that’s the idea of this “more of a right to be there” because, like what you’re saying, once they’ve gone out onto a neighborhood street, nobody has more of a right to be there than anyone else. Now in North Carolina, they’ve got their version of the stand your ground law there which takes away any duty to retreat, and that’s where Gyrell Lee stands. So he’s legally protected to not have to run away from this fight, but unlike being in his home or in his car he doesn’t have more of a right to be there than Epps did. Which isn’t a legal standard, but this is something that juries are going to look at. This is something investigators will look at right?

Don West: I agree that they will, and ultimately the jury — after the case has been filtered through the eyes of law enforcement and then the prosecutor’s office and finally gets to the jury — they’re going to look at whether in the total circumstances the accused’s behavior was reasonable, and I think all of that factors in. In fact, I think that that’s a point of this case in fact is the reasonableness of what Gyrell Lee did in the context of the prosecutor’s argument. Let me just take a second to emphasize and just to reinforce the idea that under common law, the Castle doctrine typically protects people in their home from having to flee. All stand your ground does is simply extend that notion to other places and it’s typically any place that you have the right to be. It doesn’t change the other elements of self-defense. It doesn’t lower the imminence of the threat or serious bodily harm or death. It doesn’t change the proportionality of force that’s used. All it does is not require you to flee or to retreat prior to using force.

Don West: There still are a number of states in the country that require a duty to retreat prior to using deadly force. I think the stand your ground states, though, now are in excess of half where you if otherwise faced with an imminent threat of great bodily harm or death under circumstances where you’d have the right to use deadly force in response to that threat, you do not have to look for and take any opportunity to escape first. Of course legally, that means there’s one less thing for the accused to worry about in trial that a jury could find that even though they had the right to defend themselves, they missed an opportunity to flee and therefore, nonetheless, they’re still guilty of some degree of murder.

Shawn Vincent: Well sure, and that makes this a good time to talk about this element of this case and that’s that the prosecutor did suggest to the jury that a reasonable person in Lee’s shoes would have run away from the situation and perhaps should have. So when this goes on appeal, add to it that the agreed upon jury instruction that the judge gave to the jury left out that part of that stand your ground law.

Don West: Yes it’s somewhat complicated and I won’t try to explain some of the nuances of the law because the effect of these arguments are so clear and the impact on the jury can be so profound that when the trial judge failed to instruct the jury on North Carolina’s existing stand your ground law meaning no duty to retreat, the prosecutor was able, through the arguments, to in effect exploit that. I don’t know that she was accused of doing anything unethically, but she did clearly emphasize under this umbrella of reasonableness that it was unreasonable for Lee to use deadly force in that scenario instead of trying to get away. When the jury was not instructed by the judge that in fact Lee had no duty to retreat, then the prosecutor was able not just to make that point, but there was no clear rebuttal by the law. The judge is compelled to instruct the jury on the appropriate law for the case. By failing to directly instruct the jury that there was no duty to retreat, then I think ultimately, and we’ll talk about the procedural sequence, ultimately it was concluded that Lee did not get a fair trial.

Shawn Vincent: Sure, the Supreme Court says that-

Don West: The case was reversed.

Shawn Vincent: The Supreme Court says that it’s very likely he could have gotten a different result from the trial.

Don West: Yeah, the standard’s going to be a reasonable possibility of a different outcome, and that’s another way of saying that there was the risk of prejudice. They weren’t saying that he would’ve necessarily been acquitted, and I don’t think anywhere would you find them expressing an opinion that they didn’t think that Gyrell Lee could be guilty of this crime, but they basically said the jury wasn’t instructed properly and without the proper instructions, there’s a reasonable possibility that the outcome would have been different had they been properly instructed.

Shawn Vincent: So we talked about location. Let’s talk about escalation, and this is the part where I think very often we have some of the strongest lessons for concealed carriers because I like to talk about when the moment comes, and it’s a life or death decision that you have to make in a split second, nobody’s going to have the time to go through all these podcasts that we’ve made and all the lessons that we’ve written about and check off all the boxes to know if they’re justified or not. Right? There’s usually a decision before that decision to pull the trigger where you do have the time to really think about the situation that you’re in or you’re getting yourself into and that is covered by this escalation, de-escalation umbrella.

Shawn Vincent: I’m going to say that the Gyrell Lee case, that the decision before the decision was when based with this escalating threat from Epps. Instead of saying, “Hey let’s take this party inside,” or “Hey, you know what, let’s go over to my house and do this,” He decided instead to stay outside — which he had every right to do of course — and go get his gun which, again, he had every right to do, but once he got that gun and made that choice to stay outside where we knew that another confrontation with Epps was likely, he opened the door to the armed confrontation that followed.

Don West: Well, you know Shawn, that’s an excellent point, and I made the comment early at the beginning of this podcast how the legal decisions and the legal consequences meaning guilty to not guilty in a self-defense incident are often just a matter of a few seconds, and that’s what the court said in this case. That their assessment of whether Lee acted legally, or the jury’s assessment, is really just a few seconds — but that doesn’t mean that the context isn’t important and critically important for those that have taken on this awesome responsibility of carrying a gun that there aren’t clear moments and markers along the way where something could have derailed what looked like a train to disaster. Clear heads, calmer heads prevail, and pretty soon something happens that changes the entire course of this. A lot of those decisions, including the ones that Lee made or didn’t make and the others, would not have been doing something illegal or legal. It’s really just a question of judgment and opportunity and seeing the big picture.

Don West: We’ve already talked about lots of cases where there were clear moments where something could’ve changed that would have had a dramatic impact on the outcome. I’m thinking of the Michael Dunn case in Jacksonville. The so-called loud music case.

Shawn Vincent: Right.

Don West: Even the George Zimmerman, Trayvon Martin thing. There’s been volumes and hours of things written and talked about in terms of what led up to the incident and frankly there were lots of opportunities for both George Zimmerman and Trayvon Martin to change the course of what seemed to be inevitable, frankly. The actual legal analysis of whether George Zimmerman was guilty of murder is really distilled to just 40 or 50 seconds — or even less. Probably as little as five or 10 seconds depending on the evidence that you focus on, and yet that case has been known for all of these bad decisions that somehow got translated into illegal conduct, and virtually none of the stuff was illegal. It was just some bad decision making by both individuals along the way.

Shawn Vincent: So let’s talk about that because I think that is an important distinction. Was it legal for Lee to be hanging out at his cousin’s house on New Year’s Eve? Yes.

Don West: Of course, yeah.

Shawn Vincent: Outside of his home, his cousin’s home, where he was a welcome relative, he certainly had a great right to be there. Was it illegal for Lee to get his gun? No. He’s a licensed concealed carrier. He was doing it legally and properly. Was it illegal for him to go down the street and meet with Epps who had been tormenting them all night? No. I mean it’s a public street. It’s his neighborhood. It’s his cousin’s neighborhood anyway. He absolutely had a right to be there, but I guess what I want listeners to think about is, we’ve seen so many of these situations where people well within their rights to behave the way they did — it just wasn’t necessarily responsible behavior for someone who carried in his pocket, essentially, the ultimate conflict ender. The power of life and death over this person that they’re having a conflict with.

Don West: Well there’s a level of maturity and, frankly, a level of humility that enters into that decision. We often say you have to be the calmest guy in the room. You have to be the one that’s willing to take the guff. You have to be the one that’s willing to be insulted and walk away from it rather than resorting to the gun, and I think this is a situation where it sounds like there were some prideful moments and some macho stuff going on where there were opportunities for Walker and Epps to discontinue what they were doing. I mean Walker and Epps were arguing and ultimately Epps shot and killed him. That stinks. That sucks for Walker, and ultimately Epps, because that’s what ultimately prompted Lee to get his gun out and prepared to shoot Epps. He just missed his chance when Epps was going after his cousin and then when he turned the gun on him. I think everyone would agree at that point he had no choice. He was facing a gun within a few feet, and he never had an opportunity that I can see in these facts to get away at that point.

Don West: Now he had an opportunity maybe earlier if he chose to, but at the moment when he was facing the gun there was no response I could see other than him using his own gun to defend himself. Do you see it any different?

Shawn Vincent: You’ve walked us right into this third element which is reasonable fear. You told me many times, legally, the justification for deadly force requires that you are reasonably fear an imminent threat of death or great bodily injury. Is that right?

Don West: Yes.

Shawn Vincent: So here you see a guy who’s just witnessed his cousin being shot down in the street. Epps the man who shot him, is still armed. He turns the gun on him. That’s a “right now” decision, right? That’s imminent if I’ve ever heard of imminent before.

Don West: Well, if somebody has a gun and you already know they’re willing to fire it, and have fired it, you know the guns works, and you know that if they’re facing you and decide to pull that trigger that it’s over for you: that is the textbook definition of deadly force. It is clearly imminent at that point and yes, that’s a textbook example of when you would have the right to use lethal force in response.

Shawn Vincent: Sure, and I think even because duty to retreat came up here in this case because the prosecutor suggested that a reasonable person would have retreated, and because they’re in a stand your ground state where he does not have the duty to retreat. I mean even if he wasn’t in a stand your ground state, well how’s he going to get away here? I mean, he’s in the middle of the street. Is he going to turn his back and run on this guy and leave himself exposed to the fire? I don’t see how you get out of that.

Don West: That’s a good point as a side issue. Where there is a legal duty to retreat, retreat is only required if it can be done safely without increasing the risk to yourself or others. So even under those facts, if you start telescoping it to just those seconds when Epps was turning to Lee, and Lee had that moment and that moment only to decide whether to defend himself or not — there was no opportunity to retreat. He couldn’t have physically done it, and therefore, even in a duty to retreat jurisdiction, he would not have been required to do that because it clearly would’ve increased his danger had he turned his back to run. He would’ve been even more of a target, I think.

Shawn Vincent: Sure. So before we get to these post-incident actions, I want to talk about this concept that we discuss every once in a while called “every shot counts.” We know that Lee fired eight rounds at Epps, and the prosecutor presented some evidence at trial — and this is the evidence that you mentioned earlier in the podcast — that the jury asked to see during deliberations. This evidence was a divot in the pavement under Epps’s body. The suggestion is that Lee fired a round, at least one round into Epps’s prone body that went through his body and made a mark on the pavement underneath. The suggestion being that he was trying to kill him. He wasn’t just trying to stop a threat. How do you interpret that?

Don West: There’s a couple of ways to look at that and analyze it. If you take it simply on that basis that Epps was on the ground and you assume from the way the prosecutor argued this, that she was claiming that not only was he on the ground, but he was no longer a threat. Either he was incapable of firing the gun or he’d dropped the gun. The inference is that he’s already on the pavement, no longer a threat and that Lee fired at least one more shot after Epps was no longer a threat. So therefore, there is no legal claim that that last shot could have been in self-defense. That’s what pretty quickly morphs a lawful self-defense shooting into some sort of criminal homicide. That’s the Goldilocks idea. You can’t shoot too soon, you can’t shoot too late. It has to be just right.

Shawn Vincent: It has to be just right.

Don West: If the prosecutor was arguing effectively that he shot him more times and later than he could justify because of the threat, then he’s now committed a criminal act which would, if you think about it, how horrible is that to successfully defend yourself against a clear lethal threat only to convert into a murder because you are angry or revengeful or what have you? That’s one of those things where it’s all there except for that little bit too much. I was hesitant to offer too much of an explanation there because we’re assuming that’s what the prosecutor argued, and I think that’s what she did, and the jury may have really been impacted by that since they wanted to see the evidence again on that divot, but that would be a ripe opportunity I would think for the defense to offer some expert analysis. There’d be all sorts of aspects of that which perhaps there could be some light shed by experts. Contrary to what most people see on TV and in the movies, when someone is shot, they don’t fly back two or three feet. They don’t immediately hit the ground.

Shawn Vincent: They don’t fall off a church steeple. Yeah.

Don West: Yeah, yeah. So you’ve got someone unless they are hit, not to be too graphic, but unless they are hit in the head and die instantly and are incapable of movement, someone who’s shot in the torso or anywhere other than the head is likely to be able to move — and sometimes move a lot unti —

Shawn Vincent: Well, case and point here, Walker was shot multiple times and he was able to run away and hide behind a house where he died.

Don West: Yes. So that’s why an expert might come in and say look because of the nature of this guy’s injuries, he was still able to fully function for 10 or 15 seconds. Which of course is an eternity if you’re facing somebody with a gun. So it was a nice attempt by the prosecutor to use that evidence to try to climb into Lee’s head to claim that here’s where the malicious intent, and here’s where the criminal act took place, but this thing happens so fast you just don’t know. That’s a shame isn’t it if that was exploited, but it wasn’t in fact true.

Shawn Vincent: Rebutted. Yeah.

Don West: Yeah. Of course any experienced gun operator, certainly law enforcement and military know that these are very fluid and dynamic situations where you don’t see the immediate effect of shot one as you’re preparing to fire shot two. So the idea that there were eight shots sounds like a lot, and maybe there’s a plausible argument that it was too many, but not necessarily. Especially if they were all clustered together and Epps still seemed to be capable and ready to fire himself.

Shawn Vincent: We talked about the choice before the choice, and so, shy of Lee going to get his gun, which he had every right to do legally, the biggest mistake he makes here is after the shooting. We explained earlier that everyone fled the scene including Lee. He went and hid his gun under a garbage can. He failed to report it to the authorities and we know that the cops were looking at a double homicide when they picked him up the next day. You quoted a legal term about how that could be interpreted, that fact.

Don West: Oh, yeah. Earlier I said consciousness of guilt.

Shawn Vincent: Consciousness of guilt. So essentially suggesting that he’s acting not in the way somebody who used justifiable self-defense would act. He’s acting like somebody who committed a murder.

Don West: That’s the inference to be drawn by somebody who flees, fails to remain on the scene, fails to report, hides evidence. I’m not so sure that fleeing isn’t easier to explain than hiding the gun. I don’t have any more facts than you do about where he got the gun, but we do know he was legally allowed to have it, so I’m going to assume it was a legal gun for him. It sounds like he simply panicked and, as a result of that, made some pretty bad decisions. Decisions, again, that were able to be exploited by the prosecutor to suggest that this wasn’t self-defense. This was in fact a criminal act. So we’ve already talked about a couple of things that the prosecutor had to try to convert what seems to be a lawful self-defense shooting into a criminal act. We have this notion of the divot under the body that would suggest too many shots, even if it was otherwise lawful.

Don West: Then you’ve got the fleeing and the hiding of the evidence to suggest that, since the ultimate path of a self-defense case is to get between the ears and into the head of the person who’s on trial, since the measure of the jury is whether the person acted reasonably, the jury has to figure out what the person was thinking and why and was it reasonable to conclude that they were facing this imminent threat and had to respond accordingly. So anything that you do that disrupts that or that causes the reasonableness of your conduct to be questioned is a clear disadvantage.

Shawn Vincent: Sure and you were talking earlier about when the Supreme Court in North Carolina looked at this, they were looking at just those few seconds where he pulled the trigger right?

Don West: That’s what they looked at, exactly.

Shawn Vincent: They’re not looking at what happened before. They’re not looking at what happened after. The suggestion is that maybe they get a different result if they go to trial and say give the proper jury instruction on here. The way I’m looking at this, if we look at these four elements, location: he had the right to be there. The law in North Carolina was on his side regarding him not having the duty to retreat. The Supreme Court reiterated that in their decision. We go to escalation. Here he made a number of mistakes. He allowed this repeated verbal confrontation to escalate to violence, and he armed himself for it when he could’ve made other decisions that would’ve eliminated the potential for this violent confrontation.

Don West: Yeah, let’s talk about the escalation just a little bit more to put it in context. That’s not necessarily doing something that was illegal. Escalation isn’t the same thing as provocation or being the initial aggressor which can have significant effects on one’s right to use self-defense force.

Shawn Vincent: Sure.

Don West: We’re talking about more tactics, common sense, missing opportunities to avoid the whole thing.

Shawn Vincent: Right, and what I want concealed carriers to take away from a story like this is to take those opportunities to de-escalate, to avoid a confrontation when they come. If you have that call or that thought that I need to go get my gun, that’s the moment to stop and think about how important is it to defend my right to party outside of my cousin’s house on New Year’s Eve? Is that worth getting into a gunfight over?

Don West: Shawn, I don’t know since we weren’t there, whether there was a clear opportunity for Lee to get Walker away as well. It sounded like it. It sounded like there were lots of times when the whole confrontation could’ve been avoided by Lee getting Walker and saying let’s get away from this guy, he’s crazy or he just wants to fight, or anything that would have initially separated Walker and Epps would then have prevented Walker’s death and ultimately would have prevented Lee from getting into it and having to shoot and kill Epps to save himself. So this thing went sour pretty early when you start looking at Walker and Epps being what initiated ultimately the confrontation between Epps and Lee.

Shawn Vincent: I guess what I’m leading up to here, Don, is if we take that snapshot of just that reasonable fear right after the cousin’s shot and the gun’s turned on him — that few seconds that the Supreme Court that’s all they’re looking at — that’s real clear-cut, and without making a decision about being on his side, it feels like they’re on his side here. This case is almost an example of how can you take such a clear-cut justifiable use of force and ruin it with your behavior before and after the shooting.

Don West: Well, thanks Shawn. It’s a pleasure talking with you. I enjoy just hearing how you think sometimes. We often work with a fairly sketchy outline. We have a lot of filling in the blanks to do, and I think that the two of us do a pretty good job at distilling important issues, not just for these cases, but that turn out to be pretty good thinking points for our listeners and those members and future members of CCW Safe that have decided to be responsible gun owners and responsible in carrying their firearm, and can — by visualizing and listening and learning, understanding the legal boundaries — can not only be prepared to save their life and their loved ones, but be prepared to avoid the nightmare situation that so many wind up in that we feature in our ongoing podcast, In Self-Defense. Thanks Shawn, I’m Don West, National Trial Counsel for CCW Safe. Shawn, thanks as always and I’ll talk to you next time.

Shawn Vincent: I’ll talk to you soon