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Title: State Trooper Facing Murder Charges After Tasing A Teen Riding An ATV
Source: TechDirt
URL Source: https://www.techdirt.com/articles/2 ... r-tasing-teen-riding-atv.shtml
Published: Apr 25, 2018
Author: Tim Cushing
Post Date: 2018-04-27 09:52:30 by Deckard
Keywords: None
Views: 24228
Comments: 104

from the height-of-unreasonableness dept

More than two dozen hours of recordings and 600 pages of documents obtained by the Detroit Free Press have uncovered disturbing details of the senseless killing of 15-year-old Damon Grimes by Michigan State Trooper Mark Bessner last fall.

Lots of killings are senseless, including many of those committed by officers authorized to use deadly force. But this one was especially senseless. Trooper Bessner decided against all policy and reason to fire his Taser at Grimes while both he and Grimes -- riding an ATV -- were traveling at 35 mph down a residential street. To add to the insanity of his act, Bessner was the passenger in the cruiser. Having initiated the pursuit, Bessner decided to end it by tasing Grimes. The result was the complete, gruesome destruction of a human being.

Grimes had been driving about 35 mph on an ATV when Bessner — a passenger in a moving patrol car — fired his stun gun at the teen during a chase on Detroit’s east side.

Grimes slammed into the back of a parked truck and flew off his ATV. The impact of the crash ripped gashes into his forehead, both cheeks and upper lip and dislocated his skull. Doctors pronounced him dead on arrival at St. John Hospital.

Bessner is now facing murder charges. There's a good chance Grimes never knew he was being pursued. Earbuds were photographed at the scene of the fatal crash. No one involved in the pursuit has been willing to go on record as to whether they appeared to be in use at the time of death. Additionally, obtained footage shows the cruiser's emergency lights weren't activated until 24 seconds after the fatal crash.

What the Free Press has uncovered with this mountain of public records is staggering. Officers arriving at the scene expressed their disgust at Bessner's actions. One officer in particular registered her disbelief at what she was witnessing.

“His pulse is weakening because he was on that fuckin' thing, and you chased his ass,” Detroit Police officer Kimberly Buckner muttered to herself as she stepped out of her vehicle, her body camera recording every step and word.

As she walked toward Grimes, an unidentified Detroit police officer reached out his hand to cover the lens of Buckner's body camera quietly saying: "They fuckin' tased his ass while he was cruisin'."

Buckner showed more compassion than other officers, though. The unidentified officer she spoke with later stated police escorts for ambulances were reserved for injured officers not "bad-ass 15 [year olds]" who ran from the cops. The officer went on to state he had "no sympathy" for the dead teenager. Another unidentified officer is captured saying, "Don't run from the State Police. You'll get fucked up."

Unbelievably, Detroit PD officials had no idea this officer -- still unidentified -- had criticized the cooling corpse of a teen shot by an officer with a Taser while riding an ATV at 35 mph. Only at the prompting of the Free Press was an investigation instigated. The officer has been pulled from patrol duty while the investigation is underway.

The Michigan State Police have a lot to answer for, and reps aren't talking. A pending lawsuit is only part of the reason for its silence. The other part is likely due to its refusal to deal with a problem trooper until he was charged with murder.

Bessner has a history of using excessive force and has been reprimanded before for using his Taser inappropriately, including using the device on handcuffed suspects. The investigation into Bessner's conduct shows that over a four-year span ending in 2017, he had 40 use of force incidents, 17 pursuits and five car accidents.

If the Michigan State Police could be bothered to police themselves, this may have been prevented. Bessner was -- at best -- a lawsuit waiting to happen. This isn't normal behavior, no matter how his lawyer spins it. It appears Bessner is going to lean hard on the Supreme Court's Graham decision, if his lawyer's statements are any indication.

Bessner's attorney, Richard Convertino, agreed to an interview, but then didn't respond to requests to schedule it.

Convertino previously called Grimes' death tragic, noting the teen drove the ATV “recklessly and dangerously” and “actively resisted and evaded arrest.”

“During the pursuit, Trooper Bessner was forced to make a split-second decision under circumstances on the scene and at the moment which was tense, uncertain and rapidly evolving,” Convertino told the Free Press in the email, shortly after the crash.

If the wording in that last paragraph seems familiar, it's because it directly quotes a Supreme Court justice.

The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.

That statement in defense of Bessner's reckless actions is a bit too much on the nose. There was no need for this to be a 'tense, uncertain, and rapidly evolving" situation. A teen was riding an ATV and the cops were in cruisers. If the teen posed a risk to others, the solution was not to fire a Taser from a moving vehicle at an unprotected body traveling at 35 mph. That's just a good way to seriously injure someone. In this case, the injuries were fatal and the trooper whose best call under pressure was to commit an act almost every cop would find unreasonable is now behind bars awaiting trial. I'll bet he wishes he'd responded a bit more reasonably.

The State Police gave him every chance to show them what kind of officer he could be. And in the end, he showed them he could be even worse than he was in the four years leading up to his murder rap.

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Begin Trace Mode for Comment # 47.

#2. To: Deckard (#0)

State statutes vary considerably but this sounds like manslaughter at most.

And I'd bet against a jury convicting him.

Tooconservative  posted on  2018-04-27   19:49:48 ET  Reply   Untrace   Trace   Private Reply  


#5. To: Tooconservative (#2)

1) State statutes vary considerably but this sounds like manslaughter at most.

2) And I'd bet against a jury convicting him.

1) Agreed. A reckless act that results in death... Manslaughter. I doubt he intended to kill the urban trash. This officer was just too stupid to realize tazing him, at 35mph would kill.

2) Not sure about your trial by jury comment. Are you suggesting that he deserves a trial by his PEERS, that means 12 random cops? lol

The story has a happy ending. This cop will never cop again... and this was the last time this urban potato will ever break the law.

GrandIsland  posted on  2018-04-28   7:30:14 ET  Reply   Untrace   Trace   Private Reply  


#46. To: GrandIsland, tooconservative (#5)

[tooconservative] 1) State statutes vary considerably but this sounds like manslaughter at most.

2) And I'd bet against a jury convicting him.

[GrandIsland] 1) Agreed. A reckless act that results in death... Manslaughter. I doubt he intended to kill the urban trash. This officer was just too stupid to realize tazing him, at 35mph would kill.

It may qualify for depraved-heart murder under Michigan law. As second-degree murder, that would carry up to life in prison.

Intent to cause harm is not a required element.

§ 14.4 Depraved-Heart Murder

Extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very hight degree of risk of death or serious bodily injury to another or to others—though unaccompanied by any intent to kill or do serious bodily injury—and which actually causes the death of another, may constitute murder. There is dispute as to whether, in addition to creating this great risk, the defendant himself must subjectively be aware of the great risk which his conduct creates, in order to be guilty of murder.

Criminal Law, 4th Ed., Wayne R. LaFave, Thomson-West 2003, pg. 739

http://www.legislature.mi.gov/(S(5ey12fhgbf5yrs2d31q4anlc))/mileg.aspx?page=getObject&objectName=mcl-750-317

THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931

750.317 Second degree murder; penalty.

Sec. 317.

Second degree murder—All other kinds of murder shall be murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.

History: 1931, Act 328, Eff. Sept. 18, 1931 ;-- CL 1948, 750.317 Former Law: See section 2 of Ch. 153 of R.S. 1846, being CL 1857, § 5712; CL 1871, § 7511; How., § 9076; CL 1897, § 11471; CL 1915, § 15193; and CL 1929, § 16709.

https://cases.justia.com/michigan/court-of-appeals-unpublished/20070913_C268085_31_268085.OPN.PDF

Michigan v Booth, MI Ct App, Jackson Cir 268085 (13 Sep 2007)

STATE OF MICHIGAN
COURT OF APPEALS

UNPUBLISHED
September 13, 2007

No. 268085
Jackson Circuit Court
LC No. 05-007008-FC

Plaintiff-Appellee,
PEOPLE OF THE STATE OF MICHIGAN
v.
JASON RANDALL BOOTH,
Defendant-Appellant.

Before: Bandstra, P.J., and Zahra and Owens, JJ.

PER CURIAM.

A jury convicted defendant of two counts of second-degree murder, MCL 750.317, two counts of operating a vehicle while intoxicated and causing death, MCL 257.625(4), and driving while his license was suspended, MCL 257.904. The trial court imposed concurrent sentences of life imprisonment for each murder and OUIL conviction, and of time served for the license-suspended conviction. Defendant appeals as of right. We affirm.

I. Sufficiency of the Evidence

Defendant first argues that the evidence was insufficient to show malice for purposes of his murder convictions. We disagree.

We review a challenge to the sufficiency of the evidence de novo to determine whether the evidence, when viewed in the light most favorable to the prosecution, could persuade a rational trier of fact that all the elements of the crime were proved beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005); People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002).

“To prove the elements of second-degree murder beyond a reasonable doubt, the prosecutor must present evidence of (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.” People v Lange, 251 Mich App 247, 250; 650 NW2d 691 (2002). In People v Werner, 254 Mich App 528; 659 NW2d 688 (2002), this Court discussed malice as follows:

Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. Malice may be

-1-

inferred from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm. The prosecution is not required to prove that the defendant actually intended to harm or kill. Instead, the prosecution must prove the intent to do an act that is in obvious disregard of life-endangering consequences. [Id. at 531 (Internal quotation marks and citations omitted).]

Murder with such a disregard for the likelihood that the defendant's actions could cause death or great bodily harm is commonly referred to as depraved-heart murder. See People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998). Driving while intoxicated and causing death is not per se depraved-heart murder; the prosecution must show "'a level of misconduct that goes beyond that of drunk driving.'" Werner, supra at 533, quoting Goecke, supra at 469. That is not to say, however, that evidence of intoxication is irrelevant, because the decision to drive while intoxicated may be evidence that a defendant disregarded the likelihood that his or her actions could cause death or great bodily harm. See Werner, supra at 531 (noting that the evidence showed "that defendant drove after becoming seriously intoxicated" while deciding whether the defendant acted with the requisite malice for depraved-heart murder).

In this case, the jury heard evidence from which it could infer that defendant's conduct was far more egregious than mere drunk driving causing death, and that he acted with malice in that he willfully disregarded the natural tendency of his actions to cause death or great bodily harm. Id. at 531, 533. More specifically, the jury heard evidence that defendant had blood-alcohol level of .161 about an hour and a half after the crash, which would have been higher at the time of the crash, and that defendant's earlier ingestion of cocaine and marijuana may have further impaired his ability to drive. The jury also heard evidence that defendant was angry because he had argued with a patron in one bar and then told a doorman at another that he was angry because he had been previously banned from that bar by its owners. After the doorman told him to find a way home, a witness saw him drive away, squealing his tires, driving over a curb, and going the wrong way down a one-way alley. The witness also said that defendant appeared to be upset when he drove off. The evidence additionally showed that defendant then drove at least fifty-six miles per hour in a speed zone whose limit was less than half that speed and made no attempt to stop or even slow down before driving through an intersection with a flashing red light.

Defendant emphasizes that there was also evidence that he told a nurse he had fallen asleep at the wheel. However, the prosecution is not required to disprove every arguable theory of innocence, but is only required to prove its own theory beyond a reasonable doubt. People v Richardson, 139 Mich App 622, 626; 362 NW2d 853 (1984). Further, the jury was free to disbelieve defendant's protestations that he fell asleep at the wheel. See People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998) ("It is the province of the jury to determine questions of fact and assess the credibility of witnesses.").

1 Twice the proscribed "0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine." MCL 257.625Q)(b).

-2-

Defendant also argues that there was no showing that his earlier use of cocaine and marijuana contributed to the crash. However, sufficient evidence was presented for the jury to convict defendant notwithstanding his earlier use of cocaine and marijuana. Moreover, a toxicology and pharmacology expert opined that defendant had ingested marijuana twelve to fifteen hours, or sooner, before his blood was drawn less than two hours after the crash. The expert also opined that defendant had ingested cocaine "between six hours or so" before the blood draw, that the cocaine metabolites could break down even after the blood was drawn, and that use of alcohol could prolong the effects of cocaine. She additionally indicated that even a small amount of cocaine could have a significant impact on a person's judgment and abilities even eight hours later. Defendant's argument is without merit.

Defendant next argues, citing Goecke, supra at 465-466, that the prosecution was obliged to show that defendant had failed to heed warning signs that his driving would cause death or great bodily harm, such as narrow misses, in order to establish depraved-heart murder premised on driving while intoxicated. Although Goecke analyzed cases that involved such warning signs, the warning signs are properly characterized as evidence of depraved-heart murder rather than as elements, or otherwise necessary evidence, of it. Goecke, supra at 464-465, left open whether the malice necessary for depraved-heart murder would be tested objectively or subjectively, reasoning that voluntary intoxication was not a defense to depraved-heart murder, and that "[o]nly a highly unusual case would require a determination of the issue whether the defendant was subjectively aware of the risk created by his conduct."

Defendant's argument that warning signs were necessary to establish the requisite intent is essentially a claim that this Court should apply a subjective test. But this case does not require that distinction, because the prosecutor submitted sufficient evidence under either an objective or subjective standard. See id. at 465­466. A reasonable person would objectively understand that defendant's disregard for traffic rules, excessive speed, extreme intoxication, and driving away while angry create the likelihood that death or great bodily harm would result. Further, the evidence, considered in the light most favorable to the prosecutor, also showed that defendant was in fact subjectively aware of the risk he created. Defendant knew that he had been drinking, had used marijuana, having admitted as much to police and a nurse, and that he had been advised before the crash to find a way home. Driving over a curb while exiting a parking lot should also have dispelled any misperception that defendant was capable of driving safely, particularly at excessive speeds.

For these reasons, we conclude that the jury had a reasonable evidentiary basis for concluding that defendant satisfied the malice element for second-degree murder.

[...]

nolu chan  posted on  2018-04-28   17:45:38 ET  Reply   Untrace   Trace   Private Reply  


#47. To: nolu chan (#46)

§ 14.4 Depraved-Heart Murder

I would be shocked if they convicted a trooper on this.

I guess we'll have to wait and see how the trial goes.

But thanks for digging out that statute. You can never make assumptions about the laws of any state. They can vary quite a bit.

Tooconservative  posted on  2018-04-28   18:43:44 ET  Reply   Untrace   Trace   Private Reply  


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