Saturday, February 25, 2017


State v. Buckley, 2016 VT 59

By Andrew Delaney

The song “Shotgun” by Southern Culture on the Skids—besides being a great song with some as-always-fantastic guitar work by Rick Miller—starts with the lyric: “Trouble, love, trouble, love, trouble loves that trouble.”

And a shotgun is exactly how Mr. Buckley got hisself in trouble. Mr. Buckley lives in Bennington. He owns a house where he lives with his brother Peter, and also owns an apartment building next door. There’s a parking lot by the house that the tenants use. One day, at around five in the morning, two repo guys showed up to take a lady’s car. The lady was visiting one of Mr. Buckley’s tenants. Mr. Buckley knew the lady, knew she was a guest, and knew it was her car.

The repo guys were getting ready to put the car on their flatbed. The noise woke brother Peter up and he went outside to see what was going on. One of the repo guys testified that Peter was aggressive; Peter said the repo guy was aggressive and said a bunch of nasty stuff.

Eventually, Mr. Buckley woke up to loud voices. So he grabbed his shotgun, went outside, and that meant that the repo guys backed off. There were different stories about what happened next. One of the repo guys testified that Mr. Buckley had his shotgun in the “ready” position and then pointed it in the repo guys’ “general direction.” One of the repo guys called the police. Mr. Buckley and his shotgun disappeared. The repo guys unhooked the car and waited for the police to show up.

Peter testified that he felt threatened. But he also testified that he was calm throughout the encounter. Mr. Buckley said Peter was “businesslike” when interacting with the repo guys. The repo guys said Mr. Buckley threatened them with the shotgun. Mr. Buckley and Peter denied it.

Two of Mr. Buckley’s tenants testified that Mr. Buckley didn’t point the shotgun at the repo guys or threaten to shoot them. One tenant even claimed to have been by Mr. Buckley’s side the whole time, although the police didn’t see her at the scene and Mr. Buckley didn’t mention her to the police.

At trial, whether the repo guys were privileged to be on the property came up. One repo guy testified as to his understanding of what’s allowed, and Peter testified as to his.

The court proposed jury instructions and the way the SCOV makes it sound, the State made a bunch of proposals but Mr. Buckley didn’t raise any relevant objections.

The court instructed the jury on how to determine whether there was a breach of the peace by the repo guys and whether that might justify Mr. Buckley to defend the land. The court gave factors to consider, including whether the manner in which it was done was likely to incite violence, the nature of the premises, the time of day, proximity to the home, secluded or not, notice or not, whether there was notice about the ownership of the property being repossessed, whether a gate, doors, or windows were broken, and so on.

The trial court went on to explain that even if there was a breach of the peace, Mr. Buckley still had to act reasonably and only use a reasonable degree of force in meeting the threat. That’s my summation of the instructions. If you want the straight dirt, pull up the opinion and peruse paragraph ten.

Mr. Buckley’s jury came back with a guilty on aggravated assault with a deadly weapon and disorderly conduct, and a not guilty on a reckless endangerment charge. Mr. Buckley hired new counsel and filed a motion for a new trial. The trial court denied the motion on the basis that there were no objections to the jury instructions at trial and that it found no clear error.

The trial court went on to explain that it wasn’t sure if a self-defense instruction should have been included or not but its absence wasn’t clear error. The trial court found it hard to believe that the failure to request such an instruction wasn’t deliberate given the state of the evidence. The trial court had researched the rights of a property owner versus a repossessor and believed its instructions to be correct. In any event, like at a wedding, this was a speak-now-or-forever-hold-your-peace situation.

Mr. Buckley appeals. He argues that the trial court should’ve, on its own—or if you wanna sound fancy, sua sponte—given self-defense, defense-of-another, and defense-of-property instructions because those defenses “were clearly implicated by the evidence, and thus,” the trial court committed plain error. He argues that the court compounded the error by telling the jury that the repo guys were privileged to enter his property. He contends that they were trespassers. There’s some stuff about the Uniform Commercial Code that is just confusing, so I’m going to skip it. I don’t get paid enough to deal with that kind of nonsense.

The SCOV begins by noting that the trial court has a duty “to charge fully and correctly upon each point indicated by the evidence, material to a decision of the case, whether requested or not.” But the parties also have a duty to let the court know about errors before the jury deliberates so that the court has a fair opportunity to fix the problems. If that doesn’t happen, then clear error must be established. Why? Judicial economy. That’s why.

To establish plain error in jury instructions, the error must be obvious, affect substantial rights and result in prejudice to the defendant, and will be corrected if allowing the error to stand “would result in a miscarriage of justice.” That’s a really high standard. Generally, plain error is found only in “rare and extraordinary cases.”

To get an aggravated-assault-with-a-deadly-weapon conviction, the State has to prove that a defendant was armed with a deadly weapon and threatened to use it on another person, and that the defendant subjectively intended to threaten another person with a deadly weapon (see this statute and this case). If the threat is made in the “just and necessary defense” of oneself or a relative, then it’s not a crime. Common law defenses can still be brought out for a spin.

The SCOV notes that the common-law defenses available are similar to the statutory defenses, but a bit more expansive. The bottom line is that use of force, when reasonable to defend against a threat of bodily injury is allowed. Defense of others extends the ability to use force when there’s a reasonable belief of a threat—in the defense-of-others context, a defendant steps into the threatened person’s shoes and can use the same force the threatened person would be allowed to.

The SCOV reasons, “The evidence here did not support an instruction on self-defense or defense-of-others, either as provided by statute for purposes of the aggravated assault charge or under the common law, and the court did not commit plain error by failing to sua sponte instruct the jury on these defenses.” Harsh. Here, the SCOV reasons that Mr. Buckley’s defense was not that he used necessary force to repel danger but that he claimed he never threatened the repo guys with the gun directly—in other words, his defense wasn’t self-defense or defense of others but innocence.

The SCOV agrees with the trial court’s observation that the failure to request the instructions was most likely part of trial counsel’s trial strategy. Putting aside Mr. Buckley’s denial of the charged acts, the SCOV reasons that the evidence doesn’t support any claim of imminent danger. Basically, this boils down to the fact that folks were generally calm and that Mr. Buckley knew the repo guys weren’t armed.

This part of the opinion is notable for the phrase “a spew of billingsgate,” as in Mr. Buckley and “Peter claimed to be confronted by a spew of billingsgate.” I had to look that one up and it turns out this was a word of the day back in June 2013. Billingsgate refers to coarsely or vulgarly abusive language and originates from this type of language being used in a London fish market in the mid-1600s. “Go, prick thy face, and over-red thy fear, Thou lily-liver’d boy!”

The SCOV next turns to the argument for a defense-of-property instruction. Again, the SCOV notes that Mr. Buckley didn’t claim he did it to defend property; he claimed innocence. But even setting that aside, it’s not reasonable to use a threat of a shotgun blast to defend against a mere trespass. There goes my dream of sitting on my front porch armed with a rock-salt-filled shotgun taking potshots at the kids ruining my lawn. I still intend to milk my future senility for all its worth.

The SCOV runs through the situations where defense of property applies and can’t quite see it here. Even assuming that the repo guys were “trespassing” and “breached the peace,” Mr. Buckley still had a duty to act reasonably. Here, the SCOV reasons, a simple “GTFO” would suffice—the threat of a shotgun blast is, um, overkill.

The SCOV runs through a Virginia case and an old Michigan case dealing with defense of property in some detail and cites a smattering of other cases for the idea “that a landowner is not justified in using a deadly weapon to confront a mere trespasser.”

Mr. Buckley cites the Restatement of Torts for the idea that he can put a scare into the repo guys to terminate a trespass, but the SCOV says that the Restatement actually incorporates self-defense principles, so nice try but no go.

And so, the SCOV concludes that there was no plain error here. In the SCOV’s opinion, Mr. Buckley is trying to use a “different defense strategy and relitigate this case on appeal.” Because he fails to demonstrate plain error in the instructions based on the evidence presented, the SCOV affirms. 
On a personal level, on the way the evidence seems to lean and with my pro-criminal-defense bias I’m not so sure this rose to the level of assault with a deadly weapon, but I don’t get to second-guess the jury or the SCOV—I just write the summaries.

Trouble loves that trouble.”

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