Who Was the First Initial Deadly Aggressor?

When it occurred, the killing of Vonde Cabbagestalk drew a great deal of media attention, since the shooter was an off-duty New York City corrections officer. At issue in the case on appeal was whether the defendant was entitled to a justification charge. The trial court said no; the three-judge majority of the Appellate Division said yes. The Court of Appeals agreed today with the trial court, finding that the evidence showed that the defendant was the first initial deadly aggressor and, thus, not entitled to a justification charge. The case is People v. Brown (Ct. App. 5/7/2019) (Wilson, J.) (7-0).

One of the things I appreciate about this case is how methodical Judge Wilson undertakes his justification analysis. Justification is a tricky topic because it involves a great deal of “back and forth,” examining the conduct of the shooter and the deceased.

In Brown, it was undisputed that the defendant shot and killed the victim in the lobby of the defendant’s building after an argument. There were several witnesses, but only one saw the shooting. He saw the victim swing at the defendant but apparently miss. The defendant was holding a gun. The victim then “swiped” at the gun and said, “[I]f you going to pull a gun out, you got to use it.” The defendant did just that. He was then convicted of Manslaughter 1º after the jury acquitted on Murder 2º.

Judge Wilson’s analysis proceeded in a logical manner:

• This was the use of deadly physical force. Therefore, to be entitled to a jury instruction on justification, there must be a reasonable view of the evidence that the defendant was confronted with deadly physical force and must not be the first initial aggressor of that force.
• A person can be the first initial aggressor as to physical force but another can be the initial aggressor as to the deadly physical force. That is what happened here.
• “To determine who the ‘initial aggressor’ is, then, both the sequence of the attacks (or imminently threatened attacks) and the nature of those attacks matter: which attacks were ‘physical force’ and which attacks were ‘deadly physical force?'”
• The victim was unarmed.
• The victim “swiped” at the gun only after the defendant first produced the firearm.
• The victim and others made clear that it seemed that the defendant was going to use the gun.
• Because the defendant drew the gun first and was the initial deadly aggressor, he was not entitled to the justification defense unless he retreated or the victim was the initial deadly aggressor.
• There was no withdrawal (or communication of it, etc.).
• The “swipe” at the gun did not constitute use or threat of deadly physical force and, in any event, occurred after the defendant first pulled out the gun. This left the defendant as the first initial deadly force aggressor.

(LC)