His Lawyer is already trying to SPIN the defence:
Originally Posted by Athens Banner-Herald
Bogart case will turn on legal weapon: Self defense Claim could test a jury
By Joe Johnson |
[email protected] | Story updated at 12:28 AM on Sunday, March 9, 2008
When an armed robber shot at an Oglethorpe County grocery store owner, the proprietor fired back and killed the robber and his accomplice.
As a Comer man sat guard in his dead father's house, a burglar broke in, and he killed the intruder with a shotgun blast.
Authorities didn't charge either man. The killings were clear-cut acts of self-defense, they judged.
Georgia law allows citizens to use deadly force to protect themselves, their families and homes.
But a jury may have to sort out the details of a Bogart man's claim that he shot and killed a motorcyclist in self-defense.
"If it's a false or justified claim, a jury of good general wisdom will see through it," said University of Georgia law professor Ron Carlson. "The law of self-defense is very needed if an individual feels himself under attack, and it's a reasonable belief he should be entitled to take steps to save himself and loved ones. The jury provides a good litmus test."
Richard Harold "Ricky" Gear is charged with murder for the Feb. 25 shooting death of a motorcyclist who collided with his daughters' car as he followed them near their home in Bogart.
Gear, 46, was waiting at the end of his driveway when his daughters arrived, and he shot 21-year-old Bryan Joseph "B.J." Mough as the motorcyclist drove past Gear's home, officials said.
Gear told an Oconee County sheriff's deputy he shot Mough in self-defense, that the biker had swerved and tried to hit him, but authorities see events differently.
"The physical evidence we recovered from the scene and elsewhere doesn't reflect that Mough was the primary aggressor," Oconee County Sheriff Scott Berry said. "There is no evidence he tried to hit Gear, and his motorcycle never went on Gear's property."
Clear-cut cases
Carrie Mentel is a pistol-packing mother who would shoot to protect herself or her children.
"It is our right as Americans to protect our families and property by any means necessary, but I also think that should be a last resort," she said.
Mentel, co-owner of Georgia Outdoor Sports in Hull, would call 911 if her children came home saying a man was chasing them.
"I would always use law enforcement first and allow them to do their jobs," she said.
But sometimes, there isn't time to summon help.
Bobby Doster was in the store he owns in Hutchins, a small community outside of Stephens in Oglethorpe County, when two robbers came in with guns the afternoon of Jan. 24, 2005. One man shot at Doster, complaining that Doster wasn't moving fast enough to get money from the register.
The robber leveled his gun at Doster and tried to fire again, but his gun jammed, giving Doster time to draw his own gun and shoot. His wife got a gun from behind the counter, and the couple killed both intruders.
"It was either us or them," Doster said last week. "They came to kill us. They didn't mean to leave us alive - they went to shooting first."
The district attorney agreed, and neither Doster nor his wife were charged.
People can shoot to kill not just to defend themselves, but their property.
Jerry Hendricks, for example, wasn't charged when he shot and killed a man last September in Comer.
His father's house sat unoccupied after 82-year-old James "Dink" Hendricks died in June 2007, and someone burglarized the house three months later, stealing cash, jewelry and family heirlooms.
Jerry Hendricks spent the next day there; he woke after midnight to the sound of breaking glass. A man was coming through the back door, and Hendricks shot and killed him with a shotgun.
Officials said the shooting was justified.
Question of intent
Although Gear is in jail without bail, he might avoid a trial if a magistrate court judge decides there's not enough evidence to support a murder charge.
Even if the judge allows the case to continue, Gear stands a fair chance that a jury might acquit him, according to Lawrenceville defense attorney Wayne Burnaine.
"
It sounds like the biker guy might have been the one who brought all this on," Burnaine said. "He's the one who acted aggressively when he followed the girls."
Chelsea and Samantha Gear were leaving the parking lot of the Target department store in Athens at the same time as Mough, officials said. The women say Mough cut them off as they turned onto Atlanta Highway, and when they reached Bogart, Chelsea Gear admits she made an obscene gesture at Mough, according to authorities.
Mough was heading straight, toward Winder, but after the girls flipped him off, he changed course to follow them.
Chelsea Gear told officials that after she made a left turn toward her home, Mough cut through someone's yard at the intersection and ran into the driver's side door of the car she was driving.
"It sounds to me like the biker was having a fit," Burnaine said. "Sure, the girls may have flipped him off, but he could have kept going. He made the choice to follow them, which raises the question of what were his intentions?"
Burnaine mounted a justified homicide defense for a Winder woman two years ago and failed.
In that case, Diane Elaine Hogsed claimed her husband abused her for years and she "snapped" during a May 2005 argument, Burnaine said.
Prosecutors called the killing a "crime of revenge," and a Barrow County jury found Hogsed guilty of murder.
If the Bogart shooting case goes to trial, Carlson, who teaches UGA courses on evidence, trial practice and criminal procedure, said a jury might be swayed most by the character of the two men, Gear and Mough.
"There's nobody to speak for (Mough), so it would be open for the prosecution to put on character proof on what kind of person the deceased was," the law professor said. "What was his reputation for provocation or violence, and on the other hand, for peacefulness?"
Published in the Athens Banner-Herald on 030908
