Grand Jury Rejects Attempted Murder Charge for Asheville Firefighter(Who Shot at Cyclist)

[tekisui]

Source: Asheville Citizen-Times

ASHEVILLE — A Buncombe County grand jury declined to indict an Asheville firefighter on an attempted first-degree murder charge following allegations he shot a bicyclist during a confrontation.

A warrant was served Thursday, instead, charging Charles Alexander Diez with the lesser offense of assault with a deadly weapon with intent to kill.

Diez made a first court appearance on the new charge. He declined comment outside the courtroom.

Police filed the attempted murder charge against the 17-year Asheville Fire Department veteran July 26 on allegations he fired a handgun at a bicyclist on Tunnel Road, striking his helmet.

Diez, 42, apparently had argued with the Asheville man about riding his bike on the busy road with his 3-year-old child in a bike seat behind him, Asheville police Capt. Tim Splain said.

District Attorney Ron Moore said he submitted both the attempted murder and felony assault charges to the grand jury. Moore said he doesn't know why the grand jury rejected the attempted murder charge.

(snip)

The presumptive sentence for assault with a deadly weapon with intent to kill is 20-39 months.

more: http://www.citizen-times.com/apps/pbcs.dll/article?AID=/20090807/NEWS01/908070325&s=d&page=3#pluckcomments

[AspenRose]

1. OK, that's disturbing.

Is it because he's a firefighter that people want to cut him some slack?

[rfranklin]

2. No, it's his Second Amendment right to bear and discharge arms...

At least that's the NRA postion in legislation that it promotes. Like Florida's "look at me cross-eyed and I can shoot you" law.

[jeepnstein]

11. That's not even remotely true and you know it.

The guy shot at someone on a bike with a three year old in the line of fire. He deserves jail time and is most likely going to get it. It'll be up to the jury now.

Does Florida really allow one to shoot someone for looking "cross-eyed" at them? That just defies common sense.

[TheWraith]

41. No, Florida law says "danger of death or great bodily harm."

But since the law doesn't require people to run away first, some people want to think that ordinary citizens are slavering, bloodthirsty killers waiting for an excuse.

[rfranklin]

38. Check it out...FL law let's you shoot if someone looks at you wrong...

http://www.shootfirstlaw.org/

[TheWraith]

42. That's what you get for reading trash from the Republican-owned Brady Campaign.

The facts of the law are, in fact, absolutely nothing like what they describe. A person in Florida is only authorized to use potentially lethal force if they have a reasonable fear of death or great bodily harm.

[blueamy66]

12. yes

[AspenRose]

18. Hero worship often absolves people when they're known to have done something wrong

And while I love firefighters as much as anyone (my son wants to be one!), there's giving thanks, support and respect, and then there's displaced hero worship. Which we've seen a LOT of post-9/11.

Don't care who it is: Wrong is wrong.


*shaking head*

[blueamy66]

23. You said it perfectly.

I have to say it...I think that FF and cops used to be "heroes"...but they have changed - ALOT - throughout my 40 year lifetime.

[TexasObserver]

3. That's an outrageous failure to act. He shot at a man on a bike with a child.

He hit the man's helmet.

This is attempted murder, and it should be a no brainer. It looks like the Fireman is getting special treatment. If the locals won't do it, I hope the Dept of Justice will find a basis to prosecute for federal crimes. I'm sure they can find one.

It also sounds as if the DA didn't really push for an indictment. If they simply present the matter without laying out the case and seeking indictment, grand juries tend not to indict.

[Robb]

4. IANAL...

...but I think the murder charge requires premeditation? :shrug:

[TexasObserver]

9. No, it doesn't. And the charge is attempted murder, not murder.

Upon what do you base your supposition?


Reckless disregard. You shoot at someone near a school yard, intending to hit them. You miss the person but hit a child who is a bystander. It's murder, because you shot at someone with intent to hit them, whether you acted in a premeditated or spontaneous fashion. The fact that you hit someone you didn't intend to hit does not stop you from being prosecuted for murder.

Shooting at a bicyclist who has his three year old with him, and hitting him in the helmet, is at a minimum reckless disregard, which can be a basis for a murder or attempted murder charge.

What do you think it is when someone impetuously shoots another in the head, killing him? It's murder, not premeditated murder, but murder. Premeditated means it was planned ahead of time. If the fireman had gone home, gotten a gun, then come looking for the bike rider, that's premeditated murder.

[NoGOPZone]

14. Evidently the supposition is based on the contents of the article

"First-degree attempted murder requires a trial jury to find the elements of premeditation and deliberation."

North Carolina, like many states, has levels of criminal homicide.

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-17.html

[TexasObserver]

15. Learn how to read statutes. That statute makes clear this WAS attempted murder.

The statute you linked supports my position, not yours.

Read the portions I've bolded, which make clear that this crime can be prosecuted as Murder, first or second degree:

"§ 14‑17. Murder in the first and second degree defined; punishment.

A murder which shall be perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction as defined in G.S. 14‑288.21, poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State's prison for life without parole as the court shall determine pursuant to G.S. 15A‑2000, except that any such person who was under 18 years of age at the time of the murder shall be punished with imprisonment in the State's prison for life without parole. All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90‑90(1)d., or methamphetamine, when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree, and any person who commits such murder shall be punished as a Class B2 felon.

[NoGOPZone]

17. You wrote "the charge is attempted murder, not murder"

t is not. It is FIRST DEGREE attempted murder, from the first paragraph of the article. The rest of the article states that premediation would be required for a jury to find this. Nowhere in your post do you attempt to address this. Instead you attempt to parse words with the statute.

What 'felony committed or attempted with the use of a deadly' was performed? That act of using the gun? Nice circular definition you using there. It amounts to 'a murder committed in the preparation or attempted preparation or murder' Even lawmakers aren't that redundant.

[TexasObserver]

19. The charge is attempted murder. It can be attempted first degree murder.

The statute makes premediation a factor in First degree murder, UNLESS there is a death resulting from the use of a deadly weapon in the commission of a felony. And YES, shooting from a moving vehicle, assault, and battery is an appropriate requisite.

For second degree murder under the statute, there is no requirement of premeditation OR the use of a deadly weapon in the commission of ANY felony.

[NoGOPZone]

20. You do realize that there WASN'T a "death resulting from the use of a deadly weapon", don't you?

No one was killed. Therefore, premeditation IS a factor, by your own definition.

[TexasObserver]

22. We look at the definition of MURDER to determine what constitutes Attempted Murder.

For a case to be ATTEMPTED MURDER, by definition there cannot be death resulting. For it to be attempte murder, whether first or second degree, we must refer to the statute which defines those crimes. That's how we lawyers do it.

ATTEMPTED murder requires reference to the statute which defines MURDER. If you can't understand that, you're beyond reach of logic or education.

[NoGOPZone]

26. I'm only beyond the reach of your logic

You've already stated "premediation is a factor in First degree murder, UNLESS there is a death resulting from the use"
I've stated correctly that no death has resulted. Therefore, premeditation is a factor is it not? Or did you simply err when making the statement?

Now since you're a lawyer, and since you're qualified to intrepret statutes, I'll assume, somewhat generously, that you're qualified to interpret court opinions. Tell me what you think of this one, and how it relates to your claims that attempted murder can be either first or second degree. A hint, go to the last line of the ruling, before the directive.

http://www.aoc.state.nc.us/www/public/sc/opinions/2000/446-99-1.htm

[TexasObserver]

31. The case you cite certainly does strike Attempted Second Degree murder.

OK, I've read it. I stand corrected. Under that NC supreme court ruling, there clearly is no longer the crime of Attempted Second degree murder in North Carolina.

The Supreme Court of North Carolina changed the law in North Carolina by reversing a conviction for attempted second degree murder, saying such a case was a logical impossibility. Upon reading the court's decision, I follow their logic.

Therefore, no attempted second degree murder charge would lie, and the DA properly submitted the two charges that were appropriate - attempted first degree murder and assault with a deadly weapon with intent to kill.
---------------------------------------------------------------------------------------------
From the opinion:

(snip)

Because specific intent to kill is not an element of second-degree murder, the crime of attempted second-degree murder is a logical impossibility under North Carolina law. The crime of attempt requires that the actor specifically intend to commit the underlying offense. See Hageman, 307 N.C. at 13, 296 S.E.2d at 441. It is logically impossible, therefore, for a person to specifically intend to commit a form of murder which does not have, as an element, specific intent to kill. As the United States Supreme Court stated, “Although a murder may be committed without an intent to kill, attempt to commit murder requires a specific intent to kill.” Braxton, 500 U.S. at 351, 114 L. Ed. 2d at 393. Accordingly, the crime of attempted murder is logically possible only where specific intent to kill is a necessary element of the underlying offense. See, e.g., State v. Collins, 334 N.C. 54, 58-59, 431 S.E.2d 188, 191 (1993) (first- degree murder conviction set aside for failure to instruct jury on lesser-included offense of “attempted murder”); State v. Gilley, 306 N.C. 125, 130, 291 S.E.2d 645, 648 (1982) (“attempted murder” recognized where completed offense would have constituted first-degree murder), overruled on other grounds by State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989).

(snip)

We note this case presents an issue of first impression since this Court has not directly addressed the question of whether the crime of attempted second-degree murder exists under North Carolina law. Nevertheless, because our appellate courts have indirectly referenced this purported crime on several occasions, see State v. Smith, 347 N.C. 453, 463, 496 S.E.2d 357, 363, cert. denied, 525 U.S. 845, 142 L. Ed. 2d 91 (1998), State v. Cozart, 131 N.C. App. 199, 203, 505 S.E.2d 906, 909-10 (1998), disc. rev. denied, 350 N.C. 311, __ S.E.2d __ (1999), State v. Lea, 126 N.C. App. 440, 445, 485 S.E.2d 874, 877, the prosecutor's decision here to seek a verdict of attempted second- degree murder, and the trial court's decision to instruct the jury accordingly, were both reasonable.
Nonetheless, a crime denominated as “attempted second- degree murder” does not exist under North Carolina law. Accordingly, the decision of the Court of Appeals is reversed.
REVERSED.

---------------------------------------------------------------------------------------

[Edweird]

44. "willful, deliberate, and premeditated killing" You think this was premeditated?

[CrownPrinceBandar]

25. That's not correct..........

2nd degree murder carries no premeditation clause, neither does voluntary manslaughter.

If I were a lawyer, I would try this guy for attempted second-degree murder. Since his actions showed an action: "caused by dangerous conduct and the offender's obvious lack of concern for human life." I would argue that the assault charge was too soft because the offender aimed for the victims head. Not to mention putting another life in danger.

That said, I'm not a lawyer.

http://criminal.findlaw.com/crimes/a-z/murder_second_degree.html

[TexasObserver]

27. Thank you. And that's why I said it should be second degree attempted murder.

edit: a North Carolina Supreme Court case held that there is no crime of attempted second degree murder, reversing a case of a conviction for same, so there is no such crime in North Carolina.

NoGOPZone is right. See posts below.

[NoGOPZone]

28. As a lawyer, you do realize that

there's no crime of second degree attempted murder in NC?

http://www.aoc.state.nc.us/www/public/sc/opinions/2000/446-99-1.htm

Now, I suppose it's possible that this ruling has been overturned or superseded, although I'd assume that the DA would have placed such a charge before the grand jury if that were the case. As a lawyer, maybe you can find out what the current status is.

[TexasObserver]

30. You're right. That case makes clear the SC of NC has stricken Attempted Second Degree murder.

You've found the case that struck Attempted Second Degree murder in North Carolina, and while I think their reasoning is tortured, they are the Supreme of North Carolina, and their interpretation of the law is the one that matters for NC law.

[enough]

5. The comments on this story are also disturbing.

Some people blaming the cyclist for being stupid to be biking there. I guess carrying a gun gives you the right to discipline stupidity.

[tekisui]

6. The comments from ACT readers are usually quite disturbing.

A bunch of rabid mouth breathers.

[onehandle]

7. Guns don't kill people. Gun owners shoot at people riding a bike with their 3-year old.

"What a country!"

- Yakov Smirnoff, Philosopher

[NashVegas]

8. I Think the Time It Takes to Aim For Someone's Head Ought To Count As Pre-Meditation

But that's just me.

[shadowknows69]

10. +1

[TexasObserver]

16. Pre meditation can be even an instant of forethought.

And it's clear under the NC statute that this crime clearly qualifies as attempted FIRST or SECOND degree murder in that state, without regard to premeditation. Please see my post higher up which bolds the section of the Murder statute.
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=6242488&mesg_id=6242978

It is pure bullshit that this was not attempted murder. It clearly was, under the statute. The use of a gun makes it clear, even if other factors do not. There is no requirement of premediation in some cases for a first degree murder charge to prevail.

[Robb]

21. It's only clear that you think so.

Judge disagrees.

[TexasObserver]

24. No, the judge doesn't agree. The judge had nothing to do with this.

It was a grand jury proceeding to determine whether to indict.

I understand law. You don't. It's that simple.

My post is informed. Yours isn't. Are you a lawyer? No. Am I a lawyer? Yes. Does that matter when understanding the elements of a crime? Yes.

[Robb]

29. Remind me to hire you then

...when I need a rude loudmouth lawyer. Hope to God you don't do jury trials. :eyes:

[TexasObserver]

34. Thanks.

[mrs_p]

32. well, i'd hire you

i appreciate your posts on law. i've noticed on this board that people will argue about anything, even if they haven't a clue of the matters on which they speak.

[TexasObserver]

35. Thank you.

I didn't know about a North Carolina Supreme Court case that struck down the crime of Attempted second degree murder, however, and now that I've read it, I have to agree with the poster who said no case for attempted second degree murder will be valid in North Carolina.

My analysis of the MURDER statute, however, remains the same.

[TheWraith]

43. Legal definition of premeditation...

PREMEDITATION - With planning or deliberation. The amount of time needed for premeditation regarding an act depends on the person and the circumstances. It must be long enough, after forming the intent to act, for the person to have been fully conscious of the intent and to have considered the act.

In a case like this it would be hard bordering on impossible to prove premeditation in court, since there was no pre-planning evident.

[One_Life_To_Give]

13. Rejected 1st degree. Hardly surprising

Apparently the DA didn't give them the option of Second Degree only the Assault with intent option.

[TexasObserver]

33. I was wrong about Attempted Second Degree Murder in North Carolina.

As another poster pointed out, there's a case by the North Carolina Supreme Court which struck down the crime of Attempted Second Degree Murder in North Carolina, reversing a conviction for it.

See my post here:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=6242488&mesg_id=6243475

I was basing my comments on the statute and had not looked for North Carolina cases construing the statute or the crime of at temped second degree murder.

[ProgressiveProfessor]

36. Since the Grand Jury did not return a "higher" indictment, the state is now limited in what it can

prosecute?

[TexasObserver]

37. No. The DA can re submit to a new grand jury and seek charges again.

He may choose not to do so, but if he does, he'll likely try for something other than attempted first degree murder. I'm sure there are a variety of assault and gun related crimes which might be available for prosecution.

Given the undisputed facts that the fireman fired a gun and hit the helmet of the bike rider, it's clear that a battery occurred. It's hard to imagine a grand jury that wouldn't indict on at least one felony for this episode. Whether that's going to be battery, assault, or discharging a firearm, or some other crime is yet to be seen. I'll be surprised if this case never produces a felony indictment against the fireman. He shot someone in the head, and only by sheer luck avoided killing or seriously injuring the man.

[ProgressiveProfessor]

39. In some states I *think* the DA would need the court's permission

with a burden to show that additional facts have now come to light. Is that the case in NC as well?

[TexasObserver]

40. I don't know how North Carolina handles that.

If the DA seeks other charges than the two he presented to the grand jury, I suspect the law would allow that. A failure to indict is not a statement of lack of guilt. It means this grand jury hasn't heard enough evidence to vote an indictment.

If the DA has new evidence, that would certainly help. Sometimes they have to send the police out, get them to get more witnesses, or better witnesses, or some piece of evidence that helps makes the case.