#TheodoreWafer trial: definition of burglary and breaking and entering

Wednesday, July 30, 2014

Good morning:

I write today to clear up some confusion regarding the legal definitions of burglary and curtilage. I will also comment about the police video that was played in court after the jury was excused for the day.

A residential burglary is defined by statute as a breaking and entering into a dwelling with intent to commit a crime. The breaking-and-entering requirement does not require proof that a defendant damaged property while entering a dwelling. The breaking-and-entering requirement can be satisfied by proof that a defendant entered or remained inside a dwelling without permission.

The breaking requirement refers to breaking the vertical plane that separates the inside from the outside of the dwelling. That plane is established by the exterior walls of the dwelling. The position of a closed door establishes the vertical plane in doorways. Therefore, evidence that a defendant stepped through an open doorway without the owner’s permission would satisfy the breaking-and-entering requirement.

Curtilage is a legal term that refers to the property between the boundaries of the property and the outside the dwelling. This area typically includes the yard and occasionally some outbuildings. Sidewalks, driveways and front porches are structures that define avenues of ingress and egress through the curtilage so that members of the public can reach the front door without trespassing.

Police officers do not need to obtain a search warrant in order to reach the front door. As is the case with any member of the public, police officers can walk from the street to the front door without trespassing so long as they remain on the driveway/sidewalk and porch.

Working in two-person teams, police will use a procedure called a knock-and-talk to initiate a conversation at a particular address. One officer does the talking while the other officer peers inside to see if any evidence of a crime is in plain view. For example, if he sees a plastic baggie containing green vegetable matter that looks like marijuana or if he smells marijuana,

Renisha McBride likely did not violate any law when she approached Wafer’s house from the street and knocked on the door. Officers have testified that, with the exception of the damage caused to the locked screen door by the shotgun blast, there was no damage to the doors or windows of his house. The absence of damage means there is no evidence that she attempted to enter the house. The Castle doctrine does not apply, unless she was attempting to enter the house. Mere knocking and yelling in an effort to get someone to answer the door is insufficient to justify the use of deadly force.

Finally the lawyers and a police witness discovered an inconsistency regarding the amount of money McBride had when Wafer shot snd killed her. One of the officers said she had a $100 bill, whereas a police report says she had $56.

Something ain’t right, so the judge is going to have to decide what to do about the discrepancy. Fortunately, the jury was not present in the courtroom when the discrepancy was discovered. I do not believe the discrepancy warrants a mistrial because it does not make it more or less likely that Wafer was justified in using deadly force.

See you on twitter.


61 Responses to #TheodoreWafer trial: definition of burglary and breaking and entering

  1. crustyolemothman says:

    It would be great if the professor would open a new article for todays discussions?

  2. LessonLearned says:

    The cross of Dr. Spitz should be priceless..

    • Dave says:

      It will be interesting. It will be far from Spitz’s first. His qualifications are pretty impressive (60,000 autopsies, books that have gone through multiple editions) vs. AME Kesha’s (1000 autopsies and he isn’t even board certified).

      Oh, for a live feed!

      • MKX says:

        The defense wants it to be Spitz vs. Kesha in terms of who is more qualified.

        The prosecution must drive home the point that the fact used – a poor quality photo – is flimsy support for Spitz’s conclusion.

        And he already admitted that he would have dissected the hands to verify what he sees, or thinks he sees, in a photo.

        And, be that as it may, there are other possible causes for hand trauma, if it really exists, that are equally probable.

        And, although it is true that an inebriated person will not feel pain as they pound to hard on a surface, that is still no reasonable cause to shoot them in the face with a shot gun.

        I guess they are going to claim there was fear from a raging drunk pounding on the door. And that has some merit.

        But is also raises another question that weakens the defense story.

        Why would a group of three bent on a home invasion have one their members so drunk that they could barely stand up?

        If anything, this line of argument proves that Wafer got mad at the drunk pounding on the door and shot her in a flash of anger.

        Looking at the evidence presented as a whole, it is clear to me that, like Zimmerman, Wafer is throwing all forms of shit on the wall that fit some of the evidence in the hope that it will stick and that the jury will be blind to how the story “changed” and inconsistency within context.

  3. halfentity says:

    Spitz can tell from a pic, that her hand “injury” is from pounding on the door huh? Speculation anyone? Spitz says her hand is injured based on a photo, yet actual ME (who was there) says there was no injury to the hand.

    Carpenter is copying O’Mara’s defense tactics line for line. Disgusting.

  4. Dave says:

    Trial resumes tomorrow

  5. Dave says:

    Spitz testified that he also thought, based on a photograph, that McBride’s right hand also appeared swollen. He said that hands swell extremely rapidly. Spitz testified that, when you consider the cause of death being the brain injury, you have to also consider that the heart continues to work and circulate blood probably for several minutes. During that time, that swelling can occur. Spitz said the trauma to her hands is most likely from pounding on the door.
    by Gina Damron 3:37 PM
    ↑ 0

    • crustyolemothman says:

      “Spitz said the trauma to her hands is most likely from pounding on the door.”

      While he said that, based on his statement that hands swell extremely rapidly, he failed to (because he was not asked) state how long this swelling would last. It is even more likely that the hand injuries occurred during the auto accident, I suspect that statement will be challenged when the pros get their shot at this witness.. I also find it amazing that he can diagnose a concussion simply by looking at a photo, that could possibly contain shadows or other imperfections, and does not need to actually examine the body to know that…

      • Two sides to a story says:

        An extremely drunk person could stumble and fall and try to break their fall with their hand too, just sayin’.

        • Dave says:

          All sorts of things could happen to someone wandering around for three and a half hours on a dark rainy night drunk out of her skull. Maybe she fell. Maybe she walked into a tree. Maybe she got in a fight.

          Somebody pointed out that the sole of one of her boots was partly torn off. I.m wondering what caused that. Ms. McBride doesn’t strike me as someone who would have gone out wearing boost in that condition.

      • MKX says:

        He can diagnose a previous brain injury from a blurry picture of a person who had their brain destroyed by a shot gun blast?

        And doesn’t the force of tightly packed shot hitting a head fall into the category of “concussive”?

        The shot gun blast, because it hit the head, created a massive torque about the mass center of McBride thus, in all probability violently flinging her body backwards such that her hands could have struck the porch concrete as she fell.

        So no, Mr. Spitz, the hand injuries are not “most likely” due to pounding on the door.

        There are all sorts of possibilities. None, “most likely”, absent corroborating evidence.

        • fauxmccoy says:

          yeah, he’s a pretty amazeballs doc, isn’t he? too bad he’s 87 and only works on dead people or i’d give him a call. he can solve major medical issues and crimes with only a B&W picture!

          • bettykath says:

            He’s a defense witness so it’s his job to corroborate the defendant’s story.

          • fauxmccoy says:

            oh, i know. but t, he diagnosed a concussion via photo and hand damage that the actual person conducting the autopsy did not observe. beyond that, he could tell precisely when said hand damage occurred and how.

            i just cannot wait for cross examination, which based on the many and timely objections during his testimony should be interesting.

        • MKX says:

          Another point. Maybe McBride is an individual who has a genetic trait wherein excess body fat gets deposited in the hands. She was 5’4″ @ 180 lbs. And the hand will appear “swollen”. A guy I worked in a liquor store with had that tendency. Although he was only moderately overweight, and had no edema, his hands looked puffy.

          And working in a party store allows one to see lots of hands.

          My point is that Spitz is making a conclusion based on pure speculation and no facts to support it.

          It is like saying I know for a fact that some guys with red hair jump off bridges, so I can “most likely” conclude that this guy I see with red hair walking on the bridge with jump off too.

          No, the conclusion must be weighed with respect to all other possible causes with respect to the environment in order to make any determination of its probability.

          This kind of faulty logic was used to great success in acquitting George Zimmerman.

        • Malisha says:

          The fact that this young woman died at the exact moment when a righteous, fearful, innocent defendant happened to shoot her in the face with a shotgun at close range was a coincidence. Obvious, isn’t it? She died from drunkenness, a car accident she caused, and the deleterious effects of attempted burglary.

  6. Dave says:

    Spitz, looking at the picture of McBride’s hand, said there is an abrasion on her hand.
    by Gina Damron 3:30 PM
    ↑ 0

  7. Dave says:

    Spitz says her hand appears swollen and is the likely site of bleeding

  8. bettykath says:

    Spitz [defense pathologist] said that the spider crack on the car McBride crashed is from an impact of a head.

  9. bettykath says:

    On redirect, Kesha testified he can’t tell whether McBride suffered a brain injury from the car crash because the shotgun wound was so catastrophic, it fragmented the brain.

  10. Dave says:

    Spitz said McBride had active and nonactive marijuana in her system.
    by Gina Damron 3:10 PM
    ↑ 0

  11. fauxmccoy says:

    ok, mr ‘expert’ has opined that the deceased was very drunk. hey, how about you tell us something we don’t know.

    this is a very slimy tactic on behalf of the defense to pound home the alcohol *and* to slip in testimony on behalf of wafer. fortunately, the prosecution was diligent in their objections which were sustained.

  12. Dave says:

    “They are, in a way, out of their normal mind,” Spitz said of when a person has a high blood alcohol level.
    by Gina Damron 3:10 PM
    ↑ 0

  13. Dave says:

    roger weber:
    .218 reflects her blood alcohol level at the time of her death. Spitz says her blood alcohol level at the time of her accident three and a half hours earlier would have been close to point three.
    Wednesday July 30, 2014 3:08

    roger weber:
    He says at that level, a person has no judgement.
    Wednesday July 30, 2014

  14. bettykath says:

    OT http://ccrjustice.org/newsroom/press-releases/court-denies-police-unions%E2%80%99-late-attempt-join-stop-and-frisk-case,-approves-agreement-proceed-joint-

    Today, federal District Judge Analisa Torres rejected the attempts of several police unions to intervene in Floyd v. City of New York, the landmark stop-and-frisk class action lawsuit filed by the Center for Constitutional Rights (CCR) and co-counsel Beldock, Levine & Hoffman and Covington & Burling in which the district court previously found the NYPD’s stop-and-frisk practices racially discriminatory and otherwise unconstitutional. The court ruled the Union’s request to intervene was filed years too late, given the significance and wide notoriety surrounding the case and that, in any event, the unions have no distinct interest as a bargaining unit in the court’s finding of liability against the City or in the joint remedial process ordered by the court.

    In a separate ruling, the court accepted the agreement of the City and counsel for plaintiffs to drop the City’s pending appeal of the Floyd liability decision and proceed with the joint remedial process ordered by District Judge Shira Scheindlin in August of last year. The court accepted the parties’ proposed modification that the court-appointed monitor’s term will end in three years if the City achieves “substantial compliance” with court-ordered reforms. According to the agreement of the City and Floyd plaintiffs, the City will now move to withdraw the Bloomberg administration’s appeal from the Second Circuit Court of Appeals.

  15. Dave says:

    They are talking about McBride’s toxicology, which showed her blood alcohol at 0.218.

    Spitz said she would have had to consume between 10 and 11 shots of vodka or, if she drank beer, that would be the same number in bottles within one hour. He said that if she drank over two hours, for each hour she would have had to drink one more shot or one more bottle. He said she would burn off one unit per hour.
    by Gina Damron 3:01 PM
    ↑ 0

  16. Dave says:

    1st defense witness is former ME Werner Spitz. He will be testifying about the “physiology of fear”.

  17. fauxmccoy says:

    damn, damn, damn … it is at this point i want video even more. i want to see the prosecution on cross exam.

  18. lurker says:

    Not to interrupt, but it seems Mr. Zimmerman has made the news again–having appointed himself as a guard over a gun shop where there was a recent burglary. Shop owner, who is also running for Mayor, raced in with denials. http://www.washingtonpost.com/news/morning-mix/wp/2014/07/30/george-zimmerman-resurfaces-in-florida-again-in-security-mode/?tid=hp_mm

    • Two sides to a story says:

      Also, in the Twittersphere, his gf Samantha Scheibe deleted her Twitter account about the time Fogen lost the NBC suit. Breakup or just a ploy? Fogen and Fogen Jr. claim Fogen is homeless. Could be just diversion because the general consensus earlier this year was that she had really gotten PG. But speculation, of course, no evidence.

      I would think she’d finally get tired of his lying azz. They hadn’t done any kissy lovey tweets since May.

      • Dave says:

        That lawsuit was Zimmerman’s last chance for a big score after his career as an “artist” evaporated. Just a coincidence I’m sure.

  19. Dave says:

    The prosecution rests.

    • We will soon get to find out if Wafer is going to testify.

      • crustyolemothman says:

        the general consensus over on the dark side is that he does not have to. They feel the state has not convinced the jury of his guilt of M-2 and because Ms. McBride was intoxicated and high she was at fault for her own death. I don’t agree and I am simply reporting what they are saying, so don’t shoot the messenger..

        • bettykath says:

          We don’t shoot, not even messengers. 🙂

        • They are applying the wrong rule.

          The relevant issues are

          (1) whether her conduct knocking on the door placed Wafer in imminent danger of death or serious injury and

          (2) whether Wafer’s acts (opening the inner door and pulling the trigger) caused McBride’s death.

          McBride’s BAC isn’t particularly relevant.

          Her actions are relevant to determining whether she placed Wafer in imminent danger of death or serious injury. I don’t believe they did, regardless of the amount of alcohol and marijuana in her blood.

          Whether she bruised her hands banging on his door also seems irrelevant because the only damage to the screen door was caused by the shotgun blast.

          • crustyolemothman says:

            Professor, I agree with your assessment with one exception.

            “McBride’s BAC isn’t particularly relevant.”

            Because the defense has introduced thru their expert medical testimony that a persons strength is not reduced with intoxication, the Pros need to upon cross examination force him to admit that while that is true, the degradation of motor skill ability causes that strength to be ineffective and actually quite difficult to control and effectively renders it useless…

  20. bettykath says:

    McBride’s mother was called back. She says she got Kesha’s personal effects, including a $100 bill from the ME. She had given it to her daughter.

    • J4TMinATL says:

      Yup and prosecution showed jurors a picture of Michigan drivers license and $56 cash collected as evidence. Whoops. I don’t think re-calling Ms. McBride shuts the door on this screw up.

      • crustyolemothman says:

        Did the ME say where on the body the $100 bill was found? If it was stashed in a spot not normally used for keeping money, and such it might have been located in an area that the PD would not normally search on a body…

  21. J4TMinATL says:

    Jury just went to lunch after medical examiner testimony.

  22. fauxmccoy says:

    thanks for the updated info, fred.

  23. crustyolemothman says:

    Hmmm, coming here is like visiting a ghost town this morning… This in the not too distant past used to be our best source of information on legal issues and court cases… Sure would be nice if those days were to return…

      • crustyolemothman says:

        Dave, you live in the greater Detroit area don’t you? If so what is the pulse of the locals saying are they leaning toward TW being innocent or guilty? Sometimes it is interesting to hear what the local people are saying, especially with no real neutral news coverage, I have read that some people are saying the only accurate news coverage in the area is from Fox News, is this accurate in your opinion?

        • bettykath says:

          In general, I’ve found local Fox News is not too bad, but my sample is small. The national Fox sucks.

        • Dave says:

          I don’t know anybody besides myself who is particularly interested in the case. I almost never watch broadcast TV so I can’t say whether Fox local news is better or worse than the news on other channels (Newscorp or Gannett–take your pick). The Detroit Free Press reporter (linked to above) seems to be doing an OK job reporting on the trial.

          • crustyolemothman says:

            I’ve been reading that site for the last two days, and it seems that most of the people that claim to be local are quite convinced that Ms. McBride was guilty of a crime and deserved to die… They seem to be totally convinced that it is a criminal act to walk up on a porch and knock (beat?) trying to get someone to come to the door. It would seem that quite a few don’t think TW will testify, they already know that his attorney has told the gospel truth and the case should be halted and innocence declared to be followed by a celebration… Is that the general feeling that you get from the responses? As a local to that area, what do you think it would take to convict TW of murder?

          • They seem to be totally convinced that it is a criminal act to walk up on a porch and knock (beat?) trying to get someone to come to the door. It would seem that quite a few don’t think TW will testify, they already know that his attorney has told the gospel truth and the case should be halted and innocence declared to be followed by a celebration…

            At least they are consistent.

            Consistently wrong.

          • Dave says:

            The people comments on the blog sound typical of what you might see on any news site. I wouldn’t assume that they represent anything other than the sorts of people who comment on these sites.

            To get a murder conviction I think the prosecution will have to get Wafer to say something really stupid. Otherwise he’ll probably get Manslaughter or maybe not even that. Considering the overall situation of the event and the DHPD’s half-assed investigation, I think there will be room for reasonable doubt.

          • Two sides to a story says:

            A lot of people who comment on news sites are the Fogen supporter types. In fact, actual Fogen supporters do make similar comments on their blogs.

  24. J4TMinATL says:

    Nevermind I found account of audio tapes. Gurka said that it was up to medical examiner to deal with missing money. And that missing money is with the family.

  25. J4TMinATL says:

    Fred, do you have link to police video?

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