Monday, November 18, 2019

Alabama deputy Lee Stockman informs me that misdemeanor tag in the Mike McGarity assault case is based more on "folk lore" than actual, written law

Mike McGarity
Many of our readers probably have felt they have been on the receiving end of a runaround at some point in their lives -- maybe from a retail store, a utility company, a bank, an auto mechanic's shop. I've certainly had such experiences, but I'm not sure I ever had truly been put through "the wash cycle" until I received a runaround from law enforcement.

That experience left my head spinning and made me think I had been in the presence of runaround "greatness."

It all grew from our former Alabama neighbor, the criminally inclined Mike McGarity (who works at Blue Cross and Blue Shield of Alabama), attacking me near the entrance of our neighborhood and hitting me in the back with a roadside sign. Alabama law is simple and clear about how it classifies what McGarity did. (See Code of Alabama 13A-6-21.) He committed a Class C felony, which is punishable by one to 10 years in prison and a fine up to $15,000.

Such a punishment would be a stunner for most people. But given that McGarity already had eight misdemeanor convictions on his record, it might not have been a shock to him.

Here is key element, under the law, to this incident. The bleeding abrasion -- I've called it a welt -- that McGarity left on my back was about 2-3 inches from my spine and 6 inches or so below my neck. What kind of damage could such a blow cause if my spine or neck -- any neurological center -- had taken the full force? I'm not qualified to make an assessment like that, but I feel safe in saying that severe blows to the spine and neck have been known to be life altering.

McGarity committed a felony, under Alabama law, for two reasons: (1) He caused physical injury; (2) He used a "dangerous instrument" to do it. That is second-degree assault, a felony. Here is how a "dangerous instrument" is defined by statute, at Code of Alabama 13A-1-2

(5) DANGEROUS INSTRUMENT. Any instrument, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is highly capable of causing death or serious physical injury. The term includes a "vehicle," as that term is defined in subdivision (15).

Note the key phrase "highly capable of causing death of serious physical injury." Here is the statutory definition of "serious physical injury":

(14) SERIOUS PHYSICAL INJURY. Physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.

Could McGarity's roadside sign -- made of wood and hard plastic and swung with two hands like a baseball bat by a "grown man" (using that term loosely), at my spine and near my neck -- have caused "protracted impairment of health." I don't think there is any question the answer is yes. The whole scenario still causes me to have visions of at least partial paralysis, with wheelchairs, crutches, and similar devices becoming a regular feature of my life. As we show below, Alabama case law has come to define "dangerous instrument" in a fairly broad way, with dozens of objects receiving that classification in cases where people were injured.

For now, let's return to the runaround. It started when I tried to get "law officials" in Shelby County to properly classify the offense as a felony. I spoke with an assistant district attorney, a magistrate, and three sheriff's officials (a patrol deputy, a sergeant, and a lieutenant). No matter how clearly Alabama law said otherwise, each one insisted McGarity's offense was a misdemeanor.

The whole circus began with Dept. Lee Stockman, who came to our house to take a report. When I obtained a copy of the report a few days later, I noticed that he had classified it as a misdemeanor, so I called him.

(Note: Stockman went on to complete a degree at Birmingham School of Law and worked as an associate attorney at the Law Office of Patrick E. Kennedy, P.C. in Pelham. Stockman died in October 2017, and I have not been able to find a cause of death via public reports.)

Stockman stated that he classified it as a misdemeanor in his original report -- and everybody up the line was unwilling to change it, no matter how wrong it was. (Video of my conversation with Dept. Stockman is embedded at the end of this post.) In other words, the least experienced and qualified person in the whole process -- a patrol officer -- made the misdemeanor determination, and all of his superiors took a "hear no evil, see no evil" approach when questioned about it.

In essence, the assault wasn't against them, so they didn't care how it was treated. They just wanted what was easiest for the court system to deal with -- and a misdemeanor case goes to a bench trial before a district judge, and that is easy compared to a felony, which goes before a circuit judge and likely involves a jury.

Here is a portion of my conversation with Stockman about his designation of a third-degree assault, which is a misdemeanor:

Roger Shuler (RS): I don't understand how it was listed as third degree.

Deputy Stockman (DS): You have to have intent to cause serious physical injury, and you have to cause serious physical injury.

(RS): No. Read No. 2. It says with intent to cause physical injury. Doesn't say serious; that's what first degree says. . . .
(RS): What did you base third degree on?
(DS): The fact it's a scrape.

(RS): No, you called it an abrasion in your report, and it was bleeding. I've got case law that says someone kicked in the shins, with a split lip, with a skin on the nose are all physical injury.

DS: I based it on my experience in law enforcement.

With that last line, we are getting at the truth. Stockman probably didn't even consult the law. He just put down what he had seen done in other Shelby County assault cases, never considering whether those designations were correct, under the law. I call it law enforcement by "folk lore." A department designates a classification of a case a certain way for several years, and it becomes departmental folk lore. That's how all such cases are classified, regardless of what the written law says.

Also, I showed Stockman the abrasion on my back when he came to our home, but he apparently never considered that it was right next to my spine and just below my neck. Under the law, the damage that a "dangerous instrument" is capable of causing, depending on how it is used, is critical to proper classification of the offense. McGarity used his sign to hit me, at full force, near two areas that can cause life-changing injuries. Stockman apparently didn't know the law or didn't care to take note of where I had been hit.

Speaking of written law, let's look at that.  The controlling law on the McGarity incident is Code of Alabama 13-A-6-21 (a) (2), which reads:

(a) A person commits the crime of assault in the second degree if the person does any of the following:

(2) With intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or a dangerous instrument.

That is assault-second degree, and it's a Class C felony. That is the correct designation for McGarity's offense.

Assault-first degree is a Class B felony (Code of Alabama 13A-6-20), and it requires "serious physical injury." Serious physical injury has been defined as "Serious physical injury means physical injury that creates a substantial risk of death, or that causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ." The abrasion on my back did not qualify, so it could not be first-degree assault.

Assault-third degree is a Class A misdemeanor (Code of Alabama 13A-6-22). That's how Stockman and his superiors insisted on classifying the McGarity offense, but that could not be right because here is how the statute reads in pertinent part:

(a) A person commits the crime of assault in the third degree if:

(1) With intent to cause physical injury to another person, he causes physical injury to any person;  or

(2) He recklessly causes physical injury to another person;  or

(3) With criminal negligence he causes physical injury to another person by means of a deadly weapon or a dangerous instrument;

As you can see, third-degree assault generally applies in cases that do not involve use of a "deadly weapon" or "dangerous instrument" -- and do involve recklessness or criminal negligence. If McGarity and I had been in a crowded place, and he started swinging his arms around, and happened to strike me in the face (causing a bruise), that would have been assault-third degree.

Lee Stockman
But nothing like that occurred in this case. McGarity did use a dangerous instrument (a road sign), under Alabama law, and he grabbed it with both hands and swung it intentionally at me -- with no one else in the vicinity, and having a history of attempting to trample my rights. There was nothing reckless, negligent, or accidental about it; he meant to hit me, and he did hit me.

As noted above, McGarity's offense was a felony for two key reasons: (1) He used a "dangerous instrument," under Alabama law; (2) He caused "physical injury," under Alabama law.

We already have looked at relevant statutory law, but let's examine Alabama case law. Most of the relevant case law can be found at Burger v. State, 915 So. 2d 586 (2005) and Davis v. State, 470 So. 2d 1340 (Ala. Crim. App., 1985)

In Davis, the Alabama Court of Criminal Appeals found that a stick, a tree limb, and a shoe were "deadly weapons or dangerous instruments" sufficient for a felony assault. The appellate court has made similar findings in other cases. In Austin v. State, 555 So. 2d 324 (Ala. Crim. App., 1989), the court found a piece of lumber (2 X 4) was a dangerous instrumentIn Helton v. State, 372 So. 2d 390 (Ala. Crim. App., 1979), the court cited cases where a large stone, a Coke bottle, a boot, and an aluminum chair were considered deadly weapons or dangerous instruments.

What constitutes a physical injury. The Burger case makes it clear, and the bar is pretty low:

Here, the testimony of the two officers was sufficient to establish that Officer Walker had suffered "physical injury." This court has held that the definition of physical injury includes a "black eye," South v. City of Mountain Brook, 688 So. 2d 292, 297 (Ala.Crim.App.1996); a "busted lip" and "skint nose," Eubanks v. State, 611 So. 2d 448, 450(Ala.Crim.App.1992); and several kicks in the groin that "hurt for a second," Striplin v. City of Dothan, 607 So. 2d 1285, 1287 (Ala.Crim.App.1992).

Did the bleeding abrasion on my back match the examples of "physical injury" outlined above in Burger? Yes. Did McGarity's roadside sign match the examples of "dangerous instruments" outlined in Davis, Austin, and Helton? Yes.

Therefore, we are talking about a second-degree assault, which is a Class C felony.

As for Deputy Stockman, he said he could tell that I was not going to be satisfied with his answers -- and he was right -- so he referred me to his supervisor, Sgt. Jayme Moore. That's where the runaround took on new dimensions.

(To be continued)

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