My question seems so simple but I need to ask because the Defense keeps pushing the issue.
Defendant commits assault on peace officer. Officer is wearing a helmet, and defendant slams officer's head into a brick wall multiple times. Thanks to the helmet, the officer was not knocked unconscious or killed, but he was hurt (not serious). No serious neck, head, or brain injuries resulted from the assault.
Defense is arguing that the brick wall is not a deadly weapon because the officer was wearing the helmet and "there's no way a brick wall could cause SBI if the vic is wearing a helmet." Even though ramming a person’s head against a brick wall multiple times could cause SBI.
The only reason this is an issue is because defense keeps delaying trial to get a particular out of state expert in to testify as to helmets. This expert does not want to travel to Texas.
I've been looking for case law that holds, intervening factors of a victim (i.e. wearing of a helmet, bullet proof vest, etc) do not negate a deadly weapon finding. Ultimately, we'd like to Limine out any argument by the defense that the vic's helmet negates SBI so we can get this case to trial.
The definition of a deadly weapon focuses on whether the object is "capable" of causing serious bodily injury or death. I would think that a brick wall is capable of causing SBI or death when a head is slammed against it, even if head is wearing a helmet.
Perhaps you could get Tony Dorsett as an expert witness. Details.
You don't have to prove actual injury, only a capability. You also don't have to prove an intent to injure, only that it was capable given the "manner of use".
Defense is entitled to make that argument. As you say, it seems weak and concedes that the defendant was engaged in conduct that certainly would have caused SBI or death without the helmet. I say let them bring it on and you use it against them in rebuttal. Trust the jury to see through that nonsense.
I also think the bullet-proof vest analogy is a good one. Does a gun become non-deadly weapon because it is not loaded with higher-powered or special ammunition? Case law says even an unloaded gun is a deadly weapon.
This should not be a subject requiring expert-opinion. Letting them propound the argument will probably actually be to your benefit in the long run.
A firearm has a specific definition that does not require proof the gun was loaded. A brick wall uses a separate definition that focuses on capability of causing SBI or death under the particular manner of use. So, the comparison doesn't match.
I agree with JB. Case law focuses on capability under the circumstances; however, does the defendant get a "benefit" from an intervening characteristic of the victim. I'd say no but I'm looking for case law.
So it's acop with a helmet on. A reasonable deduction from that is: the cop was part of the Tactical Response Team / SWAT / Fugitive task force, etc. Other than Motors, cops don't regularly wear helmets.
And this guy slammed the officer's head into a wall.
Honestly, what do you think the jury is going to see if you were to present the officer to them wearing the equipment he/she had on during the event in question? What conclusions might the jury draw about the defendant who had the gall to grab that scarey cop dressed for a fight and throw / slam the officer into a wall?
My guess would be they will see a dangerous person and sentence accordingly. Unless there is video to the contrary, a better defense would be: mistake - "I didn't mean to knock on the brick wall with the officer's forehead. I was just scared."
