We all believe we understand the law of self-defense and know how it should be applied. As we examine the tragic case of off-duty NYPD Police Officer Richard D. DiGuglielmo Jr. (known as Richie to his friends and family), we see that nothing in the law is as simple as we may think.
Back in 1996, Richie had just finished his tour of duty in The South Bronx and was helping out his dad and brother-in-law at the family owned deli in Dobbs Ferry, New York, 30 minutes north of the city in Westchester County. Dad was recovering from a heart attack and needed the help.
Someone had parked in one of the deli’s limited reserved parking spots and went across the street. As recommended by the local police, Dad first asked the person to move the car, and then when he refused, placed a “no parking” sticker on the car. This infuriated the driver and Richie came out to get between him and his father. The driver, an amateur boxer named Campbell, began punching Richie in the face. It took all three family members to subdue Campbell and calm him down.
This seemed to end the story and Campbell returned to his car. Dad followed him, offering return of his dropped cell phone. However, instead of getting into his car and driving away, Campbell went to his trunk and retrieved a metal baseball bat. Dad was hit twice, one shattering his knee and the other cracking his wrist.
Richie now back inside the deli, grabbed a gun from beneath the counter, ran out, and fired three times. The autopsy reported three shots to the left shoulder, one exiting and re-entering the chest, killing Campbell. Officer DiGuglielmo had never shot anyone before.
Richie believed his father’s life was in danger from a “deadly weapon” and felt he would be quickly cleared.
You won’t believe what “the cops” did to him.
The law of self-defense in New York is pretty standard. You may defend yourself or another from the imminent use of unlawful physical force. Deadly physical force is justified only when ”the actor reasonably believes that such other person is using or about to use deadly physical force.” Deadly physical force is further defined as “physical force, which under the circumstances, is capable of causing death or other serious physical injury.”
This was Richie’s problem.
More than a dozen witnesses were interviewed. There were almost as many versions of what happened. Some claimed the family jumped and beat Campbell. Some said Campbell was swinging the bat “wildly.” The distance between Richie and Campbell was described as either five feet, 12-14 feet and 30-40 feet. Distances are critical when dealing with non-firearm weapons.
Richie said his injured father was “three or four feet away” from Campbell. Several witnesses observed Campbell holding the bat above his shoulder in “a batter’s stance making circular motions like a baseball player ready for a pitch.” The autopsy findings were consistent with Campbell “standing in a right handed batting stance.”
The jury, hearing all the witnesses presented, including Richie’s assertion that he was protecting his father from further serious injury, found him guilty of second-degree murder. The court sentenced him to twenty years to life.
After his conviction was upheld by the appellate court, Richie’s attorneys filed a motion before the trial court (a different judge heard the case) to set aside the conviction based upon “newly discovered evidence.” A hearing was set and witnesses were called.
Two of the witnesses who testified at this hearing said they first gave statements that were favorable to the defense, but a week later they were changed, allegedly at the insistence of the investigators. A third witness with favorable evidence did not testify at the trial, but also claimed his original statements were modified by the police before his final statement was given.
The motion to set aside the conviction was granted as the judge, at the hearing, believed the three witnesses and not the investigators who denied coercing them to change their testimony. Richie was freed, but the state took an appeal. The appellate court reversed the granting of the motion.
A main point on this last appeal was that if the jury had heard this “newly discovered evidence,” the verdict would have been different, and that the police and the prosecutors failed to disclose this “favorable evidence” to the accused.
The appellate court chose the following as the controlling evidence in the case:
Campbell struck Dad in the knee but did not strike again as he backed away.
Campbell never used the bat as a deadly weapon and was not actually using deadly physical force at the moment he was shot.
Keep that in mind the next time someone brandishes a baseball bat at you in an aggressive manner!
The defendant testified he believed Campbell’s use of additional physical force against Dad was imminent. To justify his actions, the jury must first accept his own belief as reasonable and then also find that a reasonable person in his position would also so believe.
Because the jury rejected Richie’s justification defense, in spite of “significant evidence of Campbell’s aggressiveness,” the court held that even if the new evidence had been presented at trial, “there is no reasonable probability that the jury would have come to a different determination.”
After this opinion was released, Richie was given two days to surrender. After a year and a half of freedom, he returned to the state prison where is currently serving his life sentence.
Usually juries are called upon to determine the facts when they are in dispute. They determine the credibility of the witnesses and what evidence to accept or reject. If the evidence favors the prosecution, the constitution requires the state to prove its charge. However, if the evidence shows that the killing was justified, the court takes the case away from the jury and enters a not guilty verdict.
I prosecuted a case once where a drunken street person approached a man while threatening him with some sort of a bludgeon. The soon to be defendant took the club from the other man’s hand and “hit him up the side of his head.” The soon to be deceased fell down, got up and walked away, and died two days later from a head injury. The defendant told his story to the homicide detective and the jury.
When asked on cross-examination what the other man had in his hand “when you hit him in the head,” he had no answer. The jury found him guilty and the trial judge, very sympathetic to his plight, sentenced him to five years in prison. On appeal, the court reversed the conviction, saying there was no issue for the jury to decide. This was clearly self-defense.
If that was so strong a case of self-defense, why was Richie convicted when he shot an armed man who had already used his weapon? The next time you think about drawing your weapon, in addition to all the other matters you have to consider in a matter of milli-seconds is this: What if you are right, and the jury disagrees with you?
Richie is eligible for parole in 2019.
David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with of the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida. His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed. It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall. He can be reached at ShomrimWaksman@Bellsouth.net or thru LET.
K9 Ape was killed in the line of duty on Thursday, March 14, 2013. He was shot and killed by a subject who had murdered four people in Herkimer, New York, the previous day. Yesterday, K9 Ape was assisting agents who were trying to arrest Kurt Myers. Police say Myers shot six people, killing four. Authorities stormed the building with K9 Ape by their side hours after Myers shot at them and refused to come out. Ape was shot in the chest and killed. Agents returned fire, killing the subject.
