Guest post by Penny Dean, Esq. - HB135 "Stand your ground" must be defeated - Granite Grok

Guest post by Penny Dean, Esq. – HB135 “Stand your ground” must be defeated

HB 135 NEEDS TO BE ITL’D

If the proposed changes to RSA 627:4 in the form of HB 135 are adopted (i.e. the return to the previous version of the law-see below), the affirmative defense will no longer be available to those who are forced to defend themselves or others at places other than their home. Nothing good will come from this. Innocent New Hampshire citizens are currently being regularly, unfairly and unreasonably charged for defending themselves and will have a greatly lessened chance at being found not guilty due to inadequate jury instructions if HB 135 passes, and thus less justice, the price for HB 135….potentially years of their life in prison.

If the accused in a self defense case “wins” as in is acquitted at trial, the price many pay is their job (in many instances a cash only bail is ordered, and many people cannot afford $10k or $25k cash bail, so are kept in jail and are fired from work because they cannot go to work). Ask yourself if you were absent from work for a month or two *(or longer) because you were in jail awaiting trial, would your boss keep your job open? What about those of you who might work for less than firearm friendly corporations? What is the likelihood you would HAVE a job after the charges against you were announced? Citizens who are forced to defend themselves while at the grocery store, walking home, leaving work, or anywhere they might be currently are NOT given a “free pass” by the very weak New Hampshire “stand your ground” affirmative defense law, but rather, after they are charged criminally, and then they may be allowed to raise the defenses found in RSA 627:4.

Many people do not understand what an affirmative defense is.

An affirmative defense is not a shield that protects one from criminal prosecution when one has been forced to defend themselves. The “Stand Your Ground” law SHOULD have been codified elsewhere to do just that, but after the original bill was butchered and so weakened as to be almost unrecognizable, this is what we ended up with. Affirmative defenses, “Stand your ground” etc. are “Justification” defenses for an act-the act of defending yourself, which happens to be the title of RSA Chapter 627, Section 4 which is entitled “Physical Force in Defense of a Person” which is what HB 135 is all about.

Currently when one is charged with having defended him/her self, or a third person IF they follow the Court Rules and IF they timely file a “notice of affirmative defenses” with the required Affidavit- depending on if the judge thinks the accused has put forth enough facts/information to justify raising the defense of self defense, an affirmative defense (i.e. “stand your ground” or other affirmative defenses such as public duty, doctrine of competing harms, physical force by persons with special responsibilities, property offenses, use of force by merchants, detention powers of country fair security guards etc.) then the court MAY allow the accused to raise the affirmative defense of self defense at trial. The court can also demand that the accused be even more specific in his/her filing of the “Notice of Affirmative Defense” before the court will allow the accused to raise the defense of self-defense. New Hampshire Superior Court Rules provide:

98. The following discovery and scheduling provisions shall apply to all criminal cases in the Superior Court unless otherwise modified by the presiding justice in accordance with paragraph I hereof….

B. Pretrial Disclosure by the Defendant.

(1) If the defendant intends to rely upon an alibi or any other defense specified in the Criminal Code, the defendant shall within thirty (30) calendar days after the entry of a plea of not guilty file a notice to this effect with the court and the prosecution as provided in Superior Court Rules 100 and 101. http://www.courts.state.nh.us/rules/sror/sror-h3-98.htm

 101. If a defendant intends to claim any defense specified by the Criminal Code, a notice of such intention setting forth the grounds therefor shall be filed with the Court, with a copy of same going to the prosecution, in accordance with the time limitations in Rule 98 or within such further time as the Court may order for good cause shown. If the defendant fails to comply with this rule, the Court may exclude any testimony relating to such defense or make such other order as the interest of justice requires. http://www.courts.state.nh.us/rules/sror/sror-h3-101.htm

The affirmative defense DOES NOT prohibit the prosecution of that person or shield that person from prosecution. The law does not let you shoot, raise the “Stand Your Ground” defense/law and walk away.

In my opinion, Ward Bird-and countless others like him who have been forced to defend themselves have had two issues relevant to HB 135 to contend with at trial, the minimum mandatory sentence (offending portion since repealed) of RSA 651:2 II (g), AND the lack of adequate semi protective jury instructions. It is bad enough that New Hampshire’s “stand your ground” (actually far, far, far less protective than the media given title implies) law is not a “law” that prohibits one who defends himself or others in a given set of circumstances from being charged. It is a law that allows one who has been charged with a criminal act to “admit” the “act” i.e. “I displayed my firearm”, and raise the “affirmative defense” of self defense, and ask to be found not guilty, because of the “justification” found in RSA 627.

The justification in RSA 627:4 is what those who support this anti self defense bill want to take away from firearm owners. They falsely claim one can shoot first, claim self defense, then walk away. Not even close to the truth. I for one, am terrified of having to ever defend myself, terrified about how I will be treated by anti self-defense cops and prosecutors. The limited protections found in RSA 627:4 allows one some minor chance at being found not guilty for an act of self defense.

Most recently in the Merrimack County Superior Court Case NO. 2012-CR-1308 (the jury rendered its verdict in the past 30 days)[1] Mr. Nathan Piroso was acquitted by a jury (found not guilty) of multiple felony charges when he was forced to defend himself. (I did not try this case; Mr. Nathan Piroso was ably defended by Attorney Moir) Mr. Piroso was held in the Merrimack County jail for weeks because he could not afford bail set at $25k cash only, later reduced to 10k cash only. How many of you can write a check for $25,000.00 (twenty five thousand dollars!)? Mr. Nathan Piroso had worked at Concord Country Club for over 10 years as a groundskeeper, he lost his job, lost his apartment and far more because he could not make bail. When Mr. Piroso finally made bail, he was on pretrial release for months –which anyone will tell you is no picnic. Despite a not guilty verdict, to quote former Labor Secretary Ray Donovan, “what door do I go to, to get my reputation back?

In early July 2012 during the late afternoon Mr. Piroso was at his ex girlfriend’s home (Mr. Piroso and his ex girlfriend have a child together) to pick up his possessions that had been stored there in a shed, (his ex girlfriend had asked him to retrieve his possessions and he had made arrangements with her to pick up his possessions and had asked that her current boyfriend not be there to avoid any type of conflict). When Nathan Piroso declined to remove property from the premises that he said did not belong to him, words were exchanged with the new boyfriend who is reportedly 6’ 3” and 230 pounds. The new boyfriend Matt was going to attack at Mr. Piroso, (who per his mother is small 5’5” or 5’ 6” and about 110 pounds) with intent to harm Mr. Piroso- who was forced to draw his firearm in self defense. Mr. Piroso tried to retreat, was charged by the new boyfriend Matt who was demonstrating extremely hostile aggressive behavior advancing towards Mr. Piroso who was trying to retreat. Mr. Piroso did not discharge his firearm.

Luckily, Mr. Piroso brought a mutual friend to his ex girlfriend’s home to retrieve his belongings who was also a witness to this event. After Matt started advancing towards Nathan Piroso, he unlatched the strap on the holster of his firearm, and told Matt to back off, Matt kept coming, Nathan drew his firearm and ordered Matt to STOP! Matt said to Nathan “you don’t have balls enough to use it”. Now Nathan is really scared, because Matt is acting crazy-and clearly, Matt is not afraid as he kept advancing on Nathan who had a firearm pointed at him. Matt jumped Nathan- they were wresting over the firearm, Katie, the ex girlfriend is reported to have jumped in too, and in the scuffle Nathan’s friend picked up the firearm. No shots were fired, during the scuffle. Mr. Piroso was choked by Matt. At trial, Mr. Piroso had to contend with a persecutor who made much of the “big caliber” firearm he was carrying. After all, why was such a “big caliber” necessary~! Indeed!

I spoke with Mr. Piroso, and he gave me permission to talk about his case in hopes that New Hampshire legislators will see that the current law is barely adequate, any less protection, and goodness knows what would have happened to Mr. Piroso who was not in his own home, but in the driveway of his ex girlfriends house. In many instances it takes vigorous argument by the attorney to convince the trial judge to give adequate jury instructions (*this is how the jury is told they must judge you, and are of paramount importance) Currently, RSA 627:4 III (a) is the law and the jury must be allowed to hear it.

What happened to Mr. Piroso could have happened to anyone. The divorce rate in this country is approximately 50% and has been for some time. What about the multitude of child exchanges and property retrievals at the other parties’ house, where emotions are high, and one spouse must defend from other ex spouse or the ex spouses’ new mate-which sometimes result in altercations and most face this persecution alone and do not receive the press that a case such as Ward Bird did. The limited protection one may be allowed to raise in the form of an affirmative defense will be gone if HB 135 passes.

Even being in ones’ own home is not enough to prevent criminal prosecution for defending oneself against a PACK of men as cases such as Stuart Urie, of Milford who displayed his firearm while sitting on his OWN PORCH when 5 drunken men came on HIS PROPERTY looking to attack him have shown us under the prior version of RSA 627:4. Stuart was charged with multiple felony and misdemeanor counts (acquitted after two separate trials of the charges). What about the person walking to their vehicle after shopping or work? a woman with children? a disabled person? a person leaving a sports event? a person who is lost and finds themself in a bad neighborhood? a person caring for a sick relative and driving home on a public highway? Why can’t we defend ourselves anywhere we have a right to be?

Call your reps (link below) tell them to vote NO on HB 135, New Hampshire’s citizens should not want to have to run away from criminals! Penny Dean 603-230-9999 http://www.gencourt.state.nh.us/house/members/wml.aspx