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COURTROOM FTG OF THE TRIAL IN THE AHMAUD ARBERY CASE / TRAVIS MCMICHAEL, GREGORY MCMICHAEL AND WILLIAM RODDIE BRYAN ARE CHARGED WITH THE MURDER OF AHMAUD ARBERY / SWITCHED FEED CORE 3943 AHMAUD ARBERY MURDER TRIAL BRUNSWICK GA SWITCHED FEED POOL 11172021 084500 [09:05:51] Good morning, everybody. Boy, we are back on. Mr. President, represented by counsel, only broke last night. We were addressing motions before the court. [09:06:15][24.4] [09:06:17] Most efficient. [09:06:18][0.2] [09:06:18] Way to go about this is the state had indicated a little bit of time to take a look at the demurrer on count seven, the state of any additional argument after reviewing the demur that had been filed on behalf of Mr. Brian. No, no additional argument. We stand on what we had originally filed and on the court's order on the demurrer to count seven, which is tracks the language of the statute and informs the defendants of what they are to defend against and therefore is sufficient. And there's no reason to grant the demerjian count seven for which you have to address. [09:07:05][47.1] [09:07:06] That. Then let's get through any additional motions and all sorts of motions. As far as we go, I probably should have gone around ask the question that normally leads to some time before the court, before we get started. Anything from the state,. [09:07:19][13.1] [09:07:20] From Travis MacMichael, from Greg, with Michael and I. We're ready for our motion and from Mr. [09:07:26][5.3] [65.7] [09:07:29] Motions that I'll just go around saying, Mr. Speaker,. [09:07:35][6.1] [09:07:35] That both Craig and Michael entered this time on behalf of Greg McMichael. And I will speak for Travis Mineko with permission of co-defendants counsel and invite them to add anything you may wish to add. That does apply specifically to Travis that I may not mention it. I'm going to try to cover both in this motion for directed verdict of acquittal. And I'll start with the statute that applies to. [09:08:21][45.3] [09:08:21] Such a motion and then go through the counts in the indictment that I think we have some argument to make regarding first the statute. It's Okja nine one A, which says where there is no conflict in the evidence and the evidence introduced with all reasonable deduction and inferences there from shall demand a verdict of acquittal or not guilty as to the entire offense or to some particular count of our offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any. So I start with. [09:09:08][47.6] [09:09:10] Count one and let me get my indictment up here, which is malice murder. And to make this argument for acquittal on malice murder, allow me to review initially what the elements of that offense are and then talk about. [09:09:31][20.7] [09:09:31] The evidence in the case. The statute, of course, is sixteen five one, A and B and sixteen five one A says a person commits the offense of murder when he unlawfully and with malice aforethought either expressed or implied causes the death of another human being. [09:09:58][27.3] [09:09:59] So starting with just subsection a malice, of course, in Georgia, law means a specific intent crime as opposed to a general intent crime and then a specific intent crime. The subjective desire [09:09:59][0.0] [146.9] [09:10:18] of the defendant is to bring about the exact illegal consequence that his action is intended to produce. So in and of malice murder count, that means that the that that malice means the defendant has the specific intent to commit an act that the cause of which is the death of another person and that that result was the desired result. It was not an unintended consequence, as we'll see as the case with felony murder. So malice, that sort of specific intent can be shown in two ways by proof. And that subparagraph B in sixteen five one. [09:11:08][49.6] [09:11:09] And. [09:11:09][0.0] [09:11:10] That paragraph indicates two types of proof of this malice. The specific intent, of course, I always mention that as the definition of malice because it's certainly confusing to jurors. But that's a different issue. For later when we talk about charges. But it means no in no ill will or hatred, of course, but it's just a specific intent to types expressed malice. Is that deliberate intention unlawfully to take the life of another human being, which is manifested by external circumstances capable of proof? Now, case law indicates that would be things like verbal threats, lying in wait the kind of circumstances or actions for which the state can produce evidence that says this person had expressed malice. It's out there in the world for us to see it. We can hear it. We can determine from the circumstances in which the killing occurred. The other type of malice, much more sticky is malice shall be implied. We're no considerable provocation appears and we're all the circumstances of the killing show an abandoned and malignant heart. 091157 DEFENSE COUNSEL>> So to further define that type of malice, I need to go to a different place here in my notes to look for a definition of implied malice in our law. What we're looking for is that specific intent to kill where there are no external circumstances capable of proof. But inferences must be made. It's implied. And first of all, it's -- you -- you have to find that there's no considerable provocation, which would be, say, voluntary manslaughter. [09:12:43] And there's no other justification for it. And then in one of our cases, under Georgia law, which is park or the state, and I'll get the cite here, 270, Georgia 256 in 1980, 88 case essentially in Parker, the court tries to define that poetic matter of metaphor we find in the implied malice sentence, which is the abandoned and malignant heart. I find it of interest that there are only four states left out of 50 that use that phrase in their definition of murder, abandoned and malignant heart, having its roots somewhere in the dark recesses of medieval English. But here it is still in Georgia, Idaho, Nevada and California. The three states still use that phrase. And so, George, in attempting to say what it means, says that it's a reckless disregard for human life. And Justice Herrnstein in Parker v. State tries to give some sort of definition for it. It's not a substitute for implied malice. That is reckless disregard is not a lower mental state or lower standard of proof. It's not equivalent if it's as she said in this opinion, especially concurring opinion. She says the difference between instructing a jury that a presumption of malice may arise from reckless conduct and this is for malice murder and instructing them that reckless conduct and malice are equivalent that can be substituted for one another. [09:11:10][0.0] [49.6] [09:15:28] Is not just a matter of mere semantics. A jury is entitled to be instructed how to determine a defendant's state of mind based on the evidence. Addus. It is not entitled to be instructed that a lesser mental culpability may be substituted for the required higher mental culpability. And then she goes on to criticize the charge, even in that case in Parker. But what it comes do. [09:15:55][27.2] [09:15:55] Wn To, and it's even cited later in a U.S. Supreme Court case, actually, it was the case earlier than Parker and also an attempt by Justice Brennan to define it. And the case is a rave. Are a a r a. [09:16:15][19.8] [09:16:17] I'm sorry, Let me start that a r. [09:16:19][2.0] [09:16:20] A v, a rave, the screech CRTC, age five seven U.S. for sixty three. A 1993 case. Justice Brennan wrote this homicides committed without considerable provocation or under circumstances demonstrating an abandoned and malignant heart, a term of art that refers to an intentional homicide committed with extreme recklessness. And then I just use ellipses there because it goes on to another matter. But the examples given would be, say, somebody shooting a gun into a crowd of people. You aren't intending to kill any specific person, but you certainly know by that reckless act, somebody will die or driving a car into a crowd at a protest rally. Somebody is going to die. This could be an abandoned and malignant heart. So that all aside, now the facts of our case going back to the standard of 79 one A where directed verdicts premised upon no conflict and evidence and all reasonable deductions and inferences therefrom from 091700 In this case, the state's case in chief, which we've just now heard for the last week and a half, the expressed malice does not seem to be there. [09:17:15] Speaking about Travis McMichael in particular, he's not saying anything or doing anything that could be provable by external circumstances to be expressed malice. And as we've all seen in the video, the shooting doesn't occur until he and the Marberry are locked up in mortal combat, hand-to-hand, face to face and in contact with one another with a gunshot wound that's fatal. That's close contact or near close contact, one to three inches away. Now, none of that is in dispute. There's no conflict in the evidence there. Obviously, the issue that we expect will go to the jury is whether that was an act of self-defense or whether it's some felony murder. And there are counts in here that that address that there is a pair of counts that talk about using a shotgun is an aggravated assault, which results in the death, and that's felony murder. Those are two separate counts in this indictment. It's always interesting to that malice murder added in the same case with felony murd. [09:19:19][87.1] [09:19:19] Er, while not legally inconsistent. And, you know, of course, Georgia has done away with the concept of legally inconsistent verdicts is is somewhat logically inconsistent when you ask a jury to consider finding a defendant guilty of malice murder based on proof you think you have if you're the state that he specifically intended by his act to cause the death of a person who died. [09:19:50][31.3] [09:19:51] And at the same time argue to them, but hey, also consider that he used a shotgun in an aggravated assault without malice, as the felony murder statute says. And the unintended consequence of that aggravated assault was the death of another person. Therefore, it's bootstrapped up into felony murder. So. [09:20:16][25.0] [09:20:18] That is the. [09:20:18][0.6] [09:20:18] Argument against [09:20:18][0.0] [284.5] [09:20:20] count one under 79 when a as a count that should not be presented to the jury because there is no conflict in the evidence. All of the reasonable deductions and inferences from the evidence do not support a finding by a rational trier of fact that expressed or implied malice have been exhibited here in the act of shooting a Madama. Now, you and I can go on to each of the other challenges. In turn, our stop. Let's go. [09:20:54][34.4] [09:20:56] The second challenge is to the combination of counts five and nine. And I can get my indictment back up. [09:21:11][15.1] [09:21:13] Count five charges, felony murder premised upon count nine. And of course, we know that felony murder. And I'll get the definition of that is in sixteen five one. See, a person commits the offense of murder when in the commission of a felony, he or she causes the death of another human being irrespective of malice. So we can forget all of what I just said about malice because it doesn't apply here. The state would have to prove the underlying felony and then show a causal connection, proximate cause between that underlying felony and the unintended death. Without malice, And in this case, Count nine is the criminal attempt to commit a felony, namely false imprisonment on see if it says it in here. Burford Drive Count nine. Then, as we know, is the allegation that on Burford Drive the beginning of the encounter with a Montabaur that Travis and Greg McMichael, along with Roddy Brian. But I'll leave his lawyer to argue his case here, but that Travis and Greg McMichael using their Ford F 150, attempted to commit the crime of false imprisonment. And then they combine that with count five to say that's felony murder premised upon that attempted felony on Burford Drive. Will the causal link between the attempt to falsely imprison someone. [09:23:25][131.3] [09:23:26] Three or four minutes before shooting them with a shotgun is just too tenuous to support under the proximate cause analysis, a felony murder charge in count five? I'm not saying that Count nine can't stand and be presented to the jury, but when you combine it with count five as the underlying felony for felony murder, what we're facing then is a complete lack of a causal link. I mean, you can. [09:24:01][35.1] [09:24:04] Add several lengths to get to Holmes Road where the shooting occurs, but there is nothing about the attempt to force in prison a Marda Brian Burford drive with a pickup truck, particularly Travis Travis McMichaels, Ford F 150 and his ultimate death on Holmes Road. And if you try to do it by party to the crime 16 to 20 and connect Travis and Greg McMichael to William Ronnie, Brian, as that count does, because it also names him in count nine names, his truck, his Chevy Silverado and count nine and then connects them both back to count five for felony murder. But sixteen five, I'm sorry, 16 to 20 party to the crime statute. And I'll read. It's not long. Every person concerned in the commission of a crime is a party there too, and may be charged with and convicted of commission of the crime. Be a person is concerned in the commission of the crime only if he one directly commits the crime. And here where we're talking about directly commits the crime of criminal attempt to falsely imprison a Marda [09:24:04][0.0] [215.9] [09:26:14] Brian Burford drive and then finally intentionally advisees encourages Hyers counsels or procures another to commit the crime. So is the evidence was produced here in this case. [09:26:27][12.4] [09:26:29] Raddy Brian saw the white truck and saw Marberry made some driveway assumptions, according to Miss Donna Caskey, and then went and got in his truck to do what it what he did. But as we heard, he hollered something that the McMichaels did not hear. The evidence from the state was uncontroverted, that whatever he said, that there was no indication, no evidence whatsoever that the McMichaels heard it. There was no phone communication of any kind between either McMichaels phones or Raddy. Brian's phones ensure there was no coordinated and there was no participation, no planning, no intentionally aiding and abetting or intentionally advising, encouraging and so forth between the two McMichaels and Roddie Brian, on Barford Drive or Count nine concerns my argument here. So. [09:27:37][68.0] [09:27:38] The criminal felony. [09:27:52][14.2] [09:27:53] Murder, because of the tenuous causal link, approx causal chain, that's just not going to reach. And secondly, if it's a party to the crime theory, there's no evidence at all that there was. [09:28:07][14.2] [09:28:08] Any participation intentional. And that's a key word in the party statute between them and Ronnie. Brian Burford Drive. So that's my directed verdict argument to count five. And I make it in connection with count nine. And yet I am conceding that Count nine could survive directed verdict and be presented to a jury. There is a conflict in the evidence there about what the McMichaels were doing on on Barford. Obviously we're saying that excuse me, that they attempting to make a. [09:28:49][41.3] [09:28:50] Citizen's arrest. The state says they're attempting to do a false imprisonment. That's a legitimate jury, but connecting it to count five felony murder, that that should be directed in favor of the defendants as an acquittal. All right. My third attack here under the motion for directed verdict of acquittal will be the combination of counts three and seven. Again, count three is a felony murder count and refers to the allegation, count seven. And when you go to count seven, the argument there is that the defendant committed an aggravated assault with a Ford F 150 and a Chevy Silverado, which they allege are objects, devices and instruments which, when used offensively against a person, are likely to result in serious bodily injury contrary to our laws. But then they connect it to murder in count three. Again, however, the trucks were used in this case by the McMichaels. The trucks were used, yes, to attempt to detain, to block in, to trap Ahmaud Arbery. But again, the argument here will be for the purposes of citizen's arrest, not for the purpose of falsely imprisoning, imprisoning him or assaulting him with a truck. But. [09:29:55][105.3] [09:30:05 More than that, that would be a legitimate jury issue in count seven. But in count three, neither truck was the causal link in the death of a Harbury. It was the means by which to get to the place where the death ultimately occurred. Of course, it was the conveyance in which the defendants road, but the truck itself did nothing to cause serious bodily injury or death. At least the Ford F 150. And this is not alleging in count seven that Ahmaud Arbery received some injury when he encountered Rodney Bryan's truck, Burford Drive. That's not alleged in this indictment anywhere, even though there's some evidence of contact between him and that truck on Burford Drive this is actually not saying anything about that, but connecting it back to count three felony murder. So it's the same problem as we just had in counts five and nine. It's a failure of a causal link, no proximate cause to show that the truck is connected to the murder [09:31:11][0.0] [255.3] [09:31:53] in a causative way. And the same with party to the crime. The other thing is count these this combination of counts, does it? It doesn't say whether this aggravated assault with the track is occurring on Burford Road or Homes Drive. We're left to gas, which it is. It simply does not specify. And that's a demurrer type issue. And that may have been addressed earlier, but here for directed verdict, if if the allegation is that the felony murder occurred on homes by use of the truck on homes, will, the undisputed evidence in the case is while the truck got driven, two homes drive. When we see the video, it's undisputed that the truck is parked. The driver is out of it. The truck is not moving, and it bears no connection at all except as a a device around which the. [09:32:20][65.9] [09:32:25] Defendant stood. Want one pregnant, Michael, in the back of the truck, Travis out of the truck and a marberry going around the truck. So the truck is not a a causal element in the death of a Montabaur and therefore, count three should be directed as a verdict of acquittal for the defendant. Count four. [09:32:56][36.8] [09:33:38] And eight are connected for felony murder. Referring to the allegations in county count eight is the false imprisonment allegation, this time on homes Drive and Homes Drive, of course, is the final place where the events transpired and the tragedy occurred. But this Count eight alleges that on Holmes Drive, using the two pickup trucks, the three defendants in concert with one another as parties to the crime falsely imprisoned Amanda robbery. And then the shooting occurs and they make the causal link back to count four for the felony murder charge. But again, the evidence in the case was that, you know, there was no place on Holmes Drive where the truck was used to block in a modern robbery where the truck is finally parked. As Agent Dialed testified yesterday, I believe under cross-examination with Kevin Gough, he conceded that there were escape routes. There were places Ahmaud Arbery could have chosen to run through yards across a yard and on to satellite drive if he had chosen to do so. How one can be falsely imprisoned when the case agent is testifying under oath that he could run kept on running. I the truck itself did not impede his decision to [09:33:38][0.0] [102.8] [09:35:25] turn right and run across this yard on the satellite drive and continue down. Still drive until he left the neighborhood or until he calendar encountered the police, which we also have heard with undisputed evidence, was on Sadil satellite drive when the shooting occurred. So he would have run into a police car at the very least, and then possibly Matt al Binsey. If that police car was not where the undisputed evidence as it was. So again, count for felony murder should fail because it's based on count eight, which count eight, it's fair enough to send to the jury. It's a disputed allegation. But count four can't support be supported by it. Finally, count two and six are connected and our motion applies to them in this way. Count two is felony murder. This time premised upon count six. And count six is the allegation of aggravated assault with the use of a shotgun, a firearm, a deadly weapon to hit a 12 gauge shotgun. This one's a little stickier in this regard because the evidence has come out that Travis McMichael pointed his shotgun at a modern robbery on two separate occasions. There's been evidence presented by the state that as a Montabaur, he is running towards the back of the pickup truck. On the driver's side of the truck, Travis Michael raises his shotgun and then he lowers it and moves to the left, right front corner of the truck as a moderate, takes a couple of weaving maneuvers and then comes around the right side of the truck and then the gun is raised again and this time discharged. And that those shots are what were fatal to Marberry. The count does not specify here in count six which of those two gun raising's is the aggravated assault. Certainly the first one where no discharge occurred. Could not therefore have been the cause of death and it could not support count to felony murder since there was no discharge of a deadly shot from the shotgun. And because the count doesn't specify applying a rule of lenity, this should be read as as applying to that because that by itself could be charged as an aggravated assault. Had the case stopped right there. Adaminaby stopped in its tracks and the state had chosen to say, well, this is no citizen's arrest. This is just a garden variety aggravators saw. You're pointing a shotgun at somebody for no good reason. He didn't discharge you, didn't kill him, but it still could be charged as an aggravated assault. Well, it certainly couldn't be ever under those circumstances, the underlying felony for felony murder. If the guy was still alive, if no shot had been fired. So that aggravated assault, though, is still in play. It's been put in evidence. It's not charged in the indictment or is it? We can't tell from count six because count six only refers to one act of aggravated start with a shotgun. And I guess the jury will be left to presume that it's the second pointing that results in the shooting, which results in the death, which results in the felony murder of count two. Those are my argument, Your Honor, for directed verdict on counts one. [09:38:55][251.2] [09:38:56] , Two, three, four, and five. Thank you, Judge. Let's go ahead and address that motion from the state and then we'll get Mr. Bryant's motion. Thank you, Judge. Yes,. [09:39:24][30.1] [09:39:25] Oceguera. Seventy nine one is the statute that governs directed verdicts. And there's also case law out there that, of course, the court is to view all the evidence presented at trial in the light most favorable [09:39:40][0.0] [281.3] [09:39:23] to a guilty verdict and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. 0943948 PROSECUTOR>> So that includes judge, not just direct evidence, but circumstantial evidence as well. In this particular case, all the defendants have been charged in this as a party to the crime. And of course, we've got directly committing the crime and then helping, which is intentionally aiding or abetting in the crime. And then we've got intentionally encouraging someone to commit the crimes. [09:40:13] So we've got all of that charged together, looking, of course, at count one, malice murder. You may also find malice when there does not appear to be significant provocation. And all the circumstances of the killing show an abandoned and malignant heart. No specific length of time is required for malice to arise in the defendant's mind. Malice may be formed in an instant and instantly a fatal wound may be inflicted. That, of course, is the current pattern. Jury charged two point one zero point one zero on malice murder. In this particular case, there isn't significant provocation. Mr. Arbie ran away from these men for five minutes, tried to get away and was being forced down the street by Mr. Bryant in his dark pickup truck. Accelerating towards him. He tries to go around Travis Michael Travis MacMichael steps out into the street, blocking the street, pointing a shotgun at Mr. Aubrey. And Mr. Aubrey tries to go around the passenger side of the vehicle. Travis McMichael traps him and tracks him with that shotgun up to the front of the vehicle and basically encounters him right there. He's so close that Mr. Aubrey, he passes this. He is so close that when he does this, he's instantly shot, instantly shot. The video itself speaks for itself. There is that much time and that shotgun blast goes off. And Mr. Bush shot point blank. The trajectory was, as you saw from the medical examiner right here, right here, straight through. That's where the shotgun pellets are. That's where that injury is. So at this point in time, we have the burden to prove it's no significant provocation except Mr Abbott coming around the front. [09:42:47][144.7] [09:42:49] Medical examiner talked about fight or flight. And I understand the defense is going to argue, well, it's the victim's fault. He should have kept running. It's the victim's fault. He shouldn't have been exhausted. It's the victim's fault. He shouldn't have gone to defend himself. It's the victim's fault. He had all kinds of options and alternatives in the face of their five in an attack on him. And therefore, it's his fault. But that's not what the law is. The law is about the defendant's doing a five minute attack that eventually resulted in malice murder. How do you see the malice here? Abandoned and malignant heart. You take a shotgun, you pointed at somebody, you track them around as they try and run away from you. And when they turn on you, you immediately fire and shoot. The state asks you not to deny the directed verdict for malice murder. For Travis McMichael and also for Greg McMichael, he is charged as a party to the crime. Greg McMichael had his 357 Magnum on him. He is also yelling at Mr. Arbrey. We know that he previously had threatened Mr. Arbery with stop or I'm going to shoot your effing head off. So he'd already told this man, I'm going to execute you if you don't stop. So at that point in time, we've got Mr. Brian coming forward, coming forward. He sees the shotgun. He sees it pointed not only at Mr. Arbi, but it's actually pointed at himself because he's right behind Mr. Arbrey and he doesn't do anything. He doesn't stop. He doesn't slam on the brakes. He doesn't yell, oh, my God, he doesn't swerve immediately out of the way to get off the road. To a ditch to avoid the shock. And he keeps going. He keeps accelerating. He keeps driving, Mr. Arbery, toward the man with the shotgun, thus aiding and abetting intentionally aubury having to run towards a man with a shotgun. Mr. Arbery could not turn around. Mr. Arbery could not run way back because Mr. Brian is accelerating toward him with his black pickup truck. Therefore, he is also a party to the crime of malice murder because it shows an abandoned and malignant heart on Travis McMichaels part and aiding and abetting in that by both the defendant, Greg McMichael, and Mr. Williams. Roddie Bryant, Brian,. [09:44:30][140.3] [09:44:32] With regard to felony murder specifically, as the court is aware, felony murder must have directly caused [09:45:12][0.0] [285.0] [09:45:22] a death or played a substantial and necessary part in causing the death. This, of course, is from our new jury charges, two point one zero point two zero on felony murder. And in this case, all four of the underlying felonies played a substantial and necessary part in causing the death, because without those four felonies, Mr. Aubrey wouldn't be dead. 094509 PROSECUTOR>> So we've got our old fashioned, â?obut forâ?? and that's what we're talking about here, â?oplayed a substantial and necessary part in causing the death, but for these actions, Mr. Arbery would still be alive.â?? [09:45:21] So when we look at specific, they'll take them in the order. Mr. Hogue went, we're talking about count five felony murder and count nine, which is criminal attempt to commit false imprisonment. On Burford, the indictment reads, in violation of the personal liberty of a moderate, did unlawfully chase a moderate through the public roadways of the Shaw's neighborhood in pickup trucks did attempt to confine and detain armed Aubrey without legal authority. On Burford using a Ford F 150 and a Chevy Silverado. So they attempted to confine him, but he managed to get away. They basically both use the pickup trucks. So we've got Mr. Brian Principle actively attempting to detain Mr. Aubrey. We've got Travis McMichael in his pickup truck, circumstantial evidence that he is actively attempting to detain Mr. Aubrey because why Mr. Aubrey turns around from a white pickup truck and runs back the other way. And this is after Greg McMichael is in the truck yelling, cut him off, cut him off, cut him off. So at this point, we've got all three men acting in concert to attempt to confine him there. Well, how do they do that? They go ahead and do that by aggravated assault with their pickup trucks, by placing him in reasonable apprehension of receiving serious bodily injury. Well, what does that mean? It means their actions. What were they doing? They're using these pickup trucks with the aggravated assault to confine and detain him. So the state has proven that they use these pickup trucks in a manner that would reasonably put someone in fear and apprehension of receiving bodily injury. What does that mean? They scared him. They scared him with the aggravated assaults. And that was part of the Fallston imprisonment. We're going to scare you into stopping by using these pickup trucks to cut you off and run you into a ditch. They were doing it in concert with each other. I want to be real clear. 094712 PROSECUTOR>> The defense is attempting to conflate conspiracy, which is we pre planned this thing or conspiracy, which is wink and a nod. No, we're talking party to a crime. OK, conspiracy is a completely different charge. We are going to ask for it. [09:47:33] But in this case, this is a party to a crime which is intentionally doing these things to aid and abet Mr. Brines in his driveway. He intentionally gets in his pickup truck to aid and abet the McMichaels who he sees are actively trying to detain Mr. Arbrey in violation of his personal liberty, falsely imprison him. He's actually in the top of his driveway looking down the white pickup truck. He can see it and strawberries running back toward him. They can see that Mr. Bryant is now pulled out. They make a decision based on this to go around homes, but for their decisions on Barford, but for their attempt to falsely imprison Mr. Arbrey, Mr. Arbrey would not be dead. The false imprisonment on Barford substantially contributed to his death because it's what made him stop running it. They didn't allow him to run up Burford and onto Sellwood, which would have then led right out of the neighborhood, because if he'd gone up, Barford gone over would he'd eventually gotten to satellite drive and could have gotten away and he wouldn't be dead. So this substantially contributed. But for these actions on Barford, none of the rest of it would have happened. 094851 So what did happen? Well, he then has to run back. Mr. Bryan, of course, once again, cuts him off. He then immediately turns up Holmes to get away from Mr. Bryan and his pickup truck, which is now cut him off from his route, going out Satella Drive. But for those -- aggravated assaults, which were used to falsely imprison him there on Burford, he would not have been going up Holmes, which then led him to encounter the white pickup coming down Holmes. We have him trapped like a rat. He ends up with no place to go and he ends up exhausted, fight or flight, turns around the corner and is shot. 094926 So all of this led up immediately to the death, and therefore, it's a question for the jury. And in this case, the standard, as the court knows, is â?owe view all of the evidence presented at trial in the light most favorable to the verdicts, and ask whether any rational trier of fact could have found that the defendant was guilty beyond a reasonable doubt.â?? That's for the jury to decide. They're going to go ahead and look at this. And â?obut forâ?? those actions on Burford, would he have ever been trapped like a rat between two pickup trucks on Holmes Drive? No, we wouldn't have been. So it materially and substantially contributed to his death by getting us to that point. 095006 And this is all one continuous event. This is five minutes of this going on. So it's not these separate little vignettes. This is continuous. They're going around. Mr. Bryan's driving him this way. They're going this way to go ahead and capture him and trap him on Holmes. That was their intention, all because they wanted to talk to him. So we've got that. We ask that you deny the motion for directed verdict on counts five and counts nine. 095033 Then we've got I believe Mr. Hogue then did three and seven, which is our aggravated assault with the pickup trucks. Count seven â?odid make an assault upon the person of Ahmaud Arbery with a Ford F 150 pickup truck and a Chevy Silverado pickup truck. Objects, devices and instruments, when used offensively against a person are likely to result in serious bodily injury. 0951005 2.20.21, aggravated assault with a deadly or offensive weapon assaults another person with an offensive weapon to prove assault. The state does not have to prove that the other person was actually injured. However, the state must prove that the defendant committed an act that placed the person in reasonable apprehension or fear of immediately receiving a violent injury. [09:51:28] And then, of course, an offensive weapon is any object that is likely or actually does cause death or serious bodily injury. If used against someone, it's not in dispute at a 5000 pound lethal weapon like a pickup truck can cause serious bodily injury to someone. The question is, were there acts what they did such that they would put a reasonable person in reasonable apprehension? In other words, did what they do cause fear? Yes. Now, we don't have Mr. Aubrey to go ahead and take the stand to go. Yes, I was afraid he's dead, but the jury's allowed to go ahead and look at this and go, OK, let's look at their acts. Did they commit an act that placed Mr. Aubury in reasonable apprehension or fear of immediately receiving a violent injury? Yes, both direct and circumstantial. They did with aggravated assault with these pickup trucks. So once again, now felony murder, we're back to ah, but for situation. So but for them attempting to strike him, cut him off, run him into a ditch, impede him, run up next to him. I mean, strawberries just running down the road and they pull up with a pickup truck right next to him and start yelling at him, stop, stop. We want to talk to you. So at that point, just that alone, is that an action that would put somebody in fear straight? Total strangers have pulled up next to you. You're you don't have a car. You're running. That's a question for the jury. Now, the aggravated assault with the pickup trucks state feels not a problem, proving that beyond a reasonable doubt did play a substantial necessary part in causing his death. Yes, now is Mr. Hogue pointed out at the time of his death, the white pickup truck, which had already been used offensively against him, trying to falsely imprison him on Barford and then once again coming down homes drive goes ahead and passes. Mr. Carbury, we know this, OK? Because what do we have? We've got Mr. Brian and the video. Mr. Aubrey suddenly turns around. Now, whether you can see the white pickup truck or not, he suddenly turns around and runs back down. Mr. Brian goes up, Mr. Brian turns around. He comes back up and the video is there. And what do we have? That truck is parked at the end of the road. Based on their statements, Agent Dialis testified they went up Sellwood and came down homes that means they passed Mr. Aubrey once again with that white pickup truck. He is pinned between the two of them, the black pickup truck and the white pickup truck. The white pickup truck passes him when he turns around and then parks in front of him. That is the aggravated assault. But for them, using those pickup trucks in that manner, he would not be dead because he's trying to run up homes and the white pickup trucks come in. He runs back down. Now, Mr. Bryan's at the top of homes and the white pickup trucks at the bottom of homes. He is pinned. Greg McMichael said he was trapped like a rat and he knew it. That was what Greg MacMichael said. So when he's trapped like a rat between these two pickup trucks, did that substantially, materially? Well, playtest did that play a substantial and necessary part in causing the death? It was absolutely necessary because they had in between these two pickup trucks, they had caused him fear actions put in reasonable apprehension of receiving serious bodily injury with the pickup trucks. And at this point in time, as a party to the crime, they've stopped their pickup truck. But Mr. Brian hasn't stopped his pickup truck. Not at all. He is coming up behind Mr. Arbery. He is revving that engine. You can hear it on the video. And as a party to the crime, they can see [09:50:17][0.0] [09:55:56] that pickup truck coming. Seeing that pickup truck coming didn't stop Travis McMichael from pulling up that shotgun and pointing at Mr. Aubrey. And then he tracks them around and then shoots Mr. Aubrey. The fact that Mr. Brian and the McMichaels has a party to the crime of the use of that pickup truck at that moment, it becomes felony murder for the aggravated assault with the pickup truck. The state will argue, of course, that the use of the pickup truck the entire time. But for that, he would have been where he was. But for all the actions that the McMichaels took in their white pickup truck, Mr. Aubrey would not have been where he was and would not have been trying to escape this particular attack and assault. So we ask that you deny directed verdict on counts three and count seven. Then we have, of course, count four and eight. This was the fourth one that Mr. Polk mentioned. Some order, Judge for the end, I'm sorry, I count eight of the indictment in violation. The personal liberty of Marbury did unlawfully confine and detain a Marbury without legal authority to it said accused did chase tomorrow robbery with Ford F one fifty pickup truck and a Chevy Silverado pickup truck through the public roadways of the city of Shaw's neighborhood and did confine and detain Ammara Brown homes Drive using said pickup trucks, grabbing Michael's statement. He was trapped like a rat. He was trapped between the two pickup trucks. State has gone ahead and proven count eight. So how did that materially, substantially, unnecessarily cause the death of Marbury? Because he's trapped between these two pickup trucks. He's right there in Homs. He's running toward a man pointing a shotgun at him. And that man is relentless. He doesn't give up. He doesn't stay on the side of his pickup truck. So here we've got the ultimate confinement. And Judge, the ultimate confinement is death. Here he is ultimately falsely imprisoned because he was shot right there. Ultimate false imprisonment. But what they actually did is when they put Mr. Aubury in reasonable apprehension, fear of receiving bodily injury with the pickup trucks, they had him trapped like a rat. Once again, fight or flight. All he did was flee from these people. All he did was try and get away. But according to Michael, he was trapped gravely. Michael is standing in the back of that pickup truck yelling at him, Stop, God damn it, stop. Previously told him he was going to kill him. It's going to blow his head. So at this point in time, if he had not been falsely imprisoned and trapped between these pickup trucks, he would not have been shot. Killing is the ultimate confinement and I get that the defense is saying, well, he had options and he should have run this way. He could have run that way. Well, they're parked right in front of that driveway. They didn't actually go up to the stop sign at the end. They parked in that driveway. He was going around this side. There's a driveway to a house right there. He comes around the very front of it. They want to make it seem as if he's the one at fault for not continuing to run. He's the one at fault because they made him afraid. He's the one at fault because he didn't want to. I don't know. It would be speculation, but nobody wants to get shot back with a shotgun. He's already been told they're going to kill him if he doesn't stop. So at this point in time, falsely imprisoning him there and keeping and confining him there substantially and necessarily caused his death, blaming him for not continue to run on or him utilizing his options to defend himself. Is that really I put this what Mr. Aubrey chose to do in his intent is not relevant. The acts of the defendant are what are that's what's relevant here. And trapping him like a rat between two pickup trucks, one of which he was actively running away from as it pursued him, forcing him towards the white pickup truck. And Travis Michael and his shotgun. That was actual false imprisonment because he never, ever got away from them on Holmes Drive, he was killed. So it substantially contributed [09:55:56][0.0] [10:00:32] to his death when we look at counts. So we ask you to deny the directed verdict as to four and eight, when we look at counts two and six once again to being felony murder based on the aggravated assault with a shotgun, count six is to make assault upon the person of armed robbery with a firearm, a deadly weapon to hit a 12 gauge shotgun to prove assault. The state does not have to prove that the other person was actually injured. However, the state must prove that the defendant attempted to cause a violent injury to the person. All right. So, Judge, I hear what Mr. Hogue saying, that pointing the shotgun, Adam, where it's up against here is an aggravated assault. And it is. And if he had never fired at him, if he'd just done that, he'd be guilty of aggravated assault. However, as you know, our Supreme Court has recently told the state state you can't go charging different moments in time in a continuous action. They've told us that they said you can't do it. It's all one aggravated assault. There has to be an intervening factor, meaning I think the I think the one case that we're talking about is it was aggravated assault on a woman boyfriend girlfriend. And he went ahead and slashed her face. So we've got aggravated battery. Then there was an intervening time period where she got away from him. Then he went up. I think he stabbed her in the neck. Those were two separate things solely because of the intervening time factor. But the courts have said meaning our Supreme Court has held, it's all one thing. But in this particular case, the state's not contending that it's two separate aggravated assaults. It's aggravated assault when he pulled the trigger and shot him. So I just want everybody to be really, really clear. The state is arguing the state must prove that the defendant attempted to cause a violent injury to the person and he attempted to cause a violent injury to the person when he shot him point blank in the torso with that shotgun. They are all parties to the crime of this because Michael's already threatened to shoot him with a, you know, stop or blow your head off. Mr. Brian sees that shotgun, sees it come out, sees exactly what's going on. We might not see it on the camera, but he's driving. The truck is driving right driving. Mr. Aubrey right towards that man with the shotgun, helping him to go ahead and commit this crime. So at this point in time, we've got the aggravated assault here. Travis with Michael actually pulled the trigger. Gregory Michael helped and encouraged Travis MacMichael. Travis MacMichael grabbed his shotgun in his driveway, decision at his house, chose to bring that shotgun along. Greg Michael knew it. There's absolutely no evidence that Gregory Michael told him not to bring it along. Don't bring that shotgun. Nothing like that. Everybody who got into the truck with his son knowing he had that shotgun. It's a circumstantial evidence. Greg. Michael's in the truck with Travis. Look, Michael, the entire time that he has the shotgun, both in the pickup truck and then when Greg Michael gets in the back of the pickup truck, Gregory Michael's yelling at stop, stop driving. Michael's giving Travis Michael directions. Cut him off, cut him off, come off in a moment that Travis McMichaels outside drove back. You can see he's got the shotgun. Stop, God damn it, stop is what he's saying to Mr. Aubry. That is helping, intentionally aiding and abetting, knowing full well that the shotgun is being pointed at Mr. Aubrey. And it's kind of encouraging. It's tacitly basically authorizing this and encouraging him because it's not telling his son to stop doing that. But that's, you know, here, put the shotgun down. You don't hear what the heck are you doing? Don't do that. You hear. Stop. Goddamn it, Travis. If Michael is driving and the the one thing that's kind of important here, Judge, is that Mr. Hogue, when it was we came to trap to Gregory Michael's statement, actually asked Parker, Marci a question. And it was subjected to by Greg McMichaels counsel. But I know the court noticed it. I noticed it. It was my attention and I know it was my son's to arrest him or at least to get him identified. There was no objection from Travis McMichaels. So at this point, it's before the court on objected to by Travis McMichaels counsel is what their intentions were here. And of course, they're going to argue, well, it was to arrest him or at least get him identified. So if this is Travis McMichaels intention, it was Greg McMichaels intention and that's what they were doing and they were doing at the point of a shotgun. With regard to Mr. Brian, Mr. Brian never called nine one one. Mr. Brian continues forward recording despite the shotgun coming out, Mr. Brian says absolutely nothing on the recording. He doesn't go, oh, my God, there's a shotgun. Oh, my God, what's he doing? He doesn't, like I said, swerve out of the way and into a ditch. He doesn't put it in reverse and back up. So he's out of the line of fire. He pulls forward and accelerates despite the shotgun coming out, doesn't slam on the brakes, does not protest, does not yell, doesn't honk, doesn't do anything. But keep driving forward, driving a marberry forward. We get to this location by Mr. Brian pursuing Mr. Aubrey because as we saw in the video, Mr. Aubrey had actually run away from the white truck. Again, Mr. Aubrey runs. We see that he's going down homes towards the tilla. Mr. Brian goes up and he turns around. At this point, we actually see Mr. Aubrey back at the blue mailbox, having turned around, being forced to run back toward the white pickup truck. Therefore, he helped by chasing Mr. Arbitraged, the white F 150 pickup truck despite Aubrey's obvious attempts to get away from the white pickup truck. But he encounters Mr. Brian in the Silverado, so he has to run back toward the white pickup truck once again. A party to the crime in making this happen. And we all know that even if your fingers non trigger, you can still be held responsible. I mean, we all know the getaway driver doesn't go into the convenience store, is just as guilty as the guy who goes in to the convenience store and pulls the trigger because he's there to help make it happen. Helped make it happen. And here we have Travis with Michael actually pulling the trigger, Greg McMichael helping to make it happen, and William Brian helping to make this happen. Because without their help and assistance, without there Michael, especially his encouragement, Travis McMichael would not necessarily have been able to complete this had not Mr. Brian driven Mr. Aubrey toward the parked white pickup truck. If Mr. Brian had actually kept going and up around Sellwood or had left, Mr. Aubrey would have been able to keep running up homes and maybe get to Sellwood and Stila. Thus, Mr. Brian, confining him there, contributed substantially and materially, materially to the felony murder and the aggravated assault with a deadly weapon. So we ask that you go ahead and also deny the directed verdict. Four counts, two and six of the indictment. As to Greg McMichael and Travis MacMichael, Anderson, thank you. Any final word. [10:08:01][449.7] [10:08:02] From the MacMichael defendants on their motion? Yes. Just very briefly, are can. [10:08:10][8.8] [10:08:11] You hear me from here citing the language in State B Jackson 287, Georgia six forty six, 2010 Georgia Supreme Court case. Justice Nahmias. We have also said the proximate cause is the standard for homicide cases in general. And then he cites cases and is quoting from Wilson, the state. We set out the following test for determining causation in homicide cases where one inflicts an unlawful injury. Such injury is to be counted as the efficient proximate cause of death. Whenever it shall be made to appear. Either that there are three subparts. One, the injury itself constituted the sole proximate cause of [10:08:11][0.0] [458.5] [10:09:08] death or to the injury directly and materially contributed to the happenings of a subsequent accruing immediate cause of the death. Or three. The injury materially accelerated the death, although approximately occasioned by preexist causes that one doesn't apply. So the proximate cause issue in counts two, three, four and five is at the heart of our motion. And I think the state failed to make that connection between the underlying felonies that are named in count six, seven, eight and nine and the accruing death based on this test from this case. And of course, that's a completely different problem than the malice murder and I will say anything more about that. So that's our response to the state's our reply to the state's response. All right. I'm sorry to distinguish that case. Having just heard it, not knowing in advance that case was a code word, meaning a whole bunch of people running a crime and victim fought back and it ended up with one of the co-defendants murdered. So they're talking about proximate cause for the armed robbers. What would be responsible for the death of his car driver? That's what that case is about, not this sort of situation. I will just add the next paragraph is consistent with this general rule, which I just read. We have held in many cases and for many decades that the proximate causation is the standard for murder cases prosecuted under the murders, that you can't find another CGA. Sixteen five. One particular facts of this case or in material, it's the rule that I'm talking about. Mr. Goff, on behalf of Mr. Criminy Director Marie. Good morning, Your Honor. First thing I'll do is I'll formally adopt the. [10:11:38][150.1] [10:11:41] Very cogent arguments made by cocounsel in this case. Uh, and without tracking through those, you know, but for the. [10:11:50][8.5] [10:11:51] Best break, Mo giving birth to Roddy Brian, God rest his soul many years ago. But for that, Roddy Brian wouldn't have been out there that day in his pickup truck when we use this. But for causation that that there's a lot of baggage that comes along with that. And with all due respect to Mr. Kosti, it. [10:12:11][20.2] [10:12:11] Feels like they are stretching that term beyond recognition. The legal. [10:12:14][3.1] [10:12:15] Standard is proximate cause. And we'll come back to that in a moment. But when you look at it as proximate cause and not simply reducing it to two words, but for I think the court understands why the defendants are here making motions with respect to count one, malice murder. You know, I'm really at a loss here to understand, but it was the state that decided to present what we sometimes call a kitchen sink indictment to the grand jury, where every defendant is charged in every possible way with every possible crime. In this case, that was a decision the state made. And I certainly appreciate the challenge to the court in trying to assess these issues. As. [10:12:59][44.1] [10:12:59] I look at the malice murder charge, there is no contention that Roddy Brian shot anybody. There's no contention that Ray. [10:13:05][5.9] [10:13:05] Brian tried to shoot anybody. There's no contention here that Mr. Brian is acting as a principal. This is if I misunderstood based on Kasky, I'm sure she'll correct the entire theory. Here is aiding and abetting third section of that statute. And where is it that Mr. Brian is intentionally aiding and abetting the shooting because he's not? [10:13:30][25.2] [10:13:31] Now, maybe some decision came out of the Supreme Court last week or last month. I'm unaware of. But when I went back through Kurt's last night or used to be called Kurts offenses in defense, it's in Georgia section on parties to the crime. I know the court knows the treaties that I'm talking about. You know, they list like thirty different ways that you can be a party to a crime. You can be aiding and abetting in a murder case. [10:13:57][25.8] [10:13:58] But none of those are like the case before this. [10:14:01][2.8] [10:14:02] Court, which is why, although Mr. Dunn Acasti has cited this court well over. [10:14:08][5.9] [10:14:08] One hundred cases, oral argument, probably thousands of cases, and all the pleadings that have been filed motions in response is going back and forth. Mr. Tokarski cannot say to. [10:14:18][9.8] [10:14:19] A single Georgia case that is remotely comparable to the one that we have before the court. This isn't the case where Mr. Brown driving down the street in his pickup truck and Travis McMichael is standing in the back of it, shooting at Mr. Arbery. This isn't that case. [10:14:35][16.0] [10:14:37] There is. [10:14:37][0.3] [10:14:38] No case. And she can cite no case remotely close to this one. The closest cases that I've been able to find and of course, the referenced in there in what. [10:14:48][10.8] [10:14:49] I call the distraction, aiding and abetting cases in which one person intentionally distracts another person while someone else behind them either takes a knife and stabs them with. [10:15:02][13.0] [10:15:02] It or shoots them. There are, I call them, distraction. [10:15:06][3.7] [10:15:07] Cases. You're aiding and abetting by distracting. There is no evidence and no suggestion here that Mr. Bryan's conduct has somehow distracted Mr. [10:15:16][9.4] [10:15:16] Arborio. He's well aware of the pickup truck in front of him from the video. He's well aware from the video that they are both armed. So and Mr. Arbery is not shot with his back turned. [10:15:29][12.5] [10:15:30] That might pose a different and a closer question for the court. But in this case, unless Miss Dunn, a Karski. [10:15:36][6.3] [373.4] [10:15:38] Sight, some Georgia case suggesting this, which I still don't understand, theory of aiding and abetting the shooting. [10:15:45][7.1] [10:15:47] Of Mr. Avery, there. [10:15:48][1.7] [10:15:49] Simply is no malice murder case here. And, you know, cocounsel points out some pretty good cases on what. [10:15:55][6.3] [10:15:56] The meds raise required here. Where is any of that for Mr. Bryan? There's no malignant heart in this case. There's nothing from which that could be presumed. And, you know, that takes us back to the whole concept of a citizen arrest. If I understand the state's theory here, the state contends that the McMichaels and I believe they're contending the mission, Mr. Bryan, was. [10:16:19][23.3] [10:16:20] Assisting them or aiding them in attempting to make a citizen's arrest, which in the opinion of the state is not or was not authorized under Georgia law. And that may be true, Your Honor, but the fact that Mr. Bryan aided and abetted a citizen's arrest if he did that doesn't establish malice. [10:16:41][21.3] [10:16:42] In this case. It doesn't establish an intent to aid and abet an intent for a shooting. You know, and. [10:16:49][6.8] [10:16:49] Your Honor, I would urge the court to ponder the larger implications of the legal ruling that the state is requesting here, because in this one case, it might serve the interests of the state. But in the. [10:17:03][14.3] [10:17:03] Larger question, if 10 police. [10:17:06][2.2] [10:17:06] Officers respond to a call, ten police officers pull their cards up around the scene. And. [10:17:12][5.7] [10:17:13] In there, they're maybe they're still moving. [10:17:14][1.7] [10:17:15] Your and inexplicably, a police officer discharges. [10:17:19][4.8] [10:17:20] His weapon and shoots the person that they're after in the. [10:17:24][3.6] [10:17:25] Maybe they had probable cause, maybe they didn't. But are we going to try? Every police officer who's present at the scene of an attempted arrest for malice murder. [10:17:34][9.1] [10:17:34] Because somehow. [10:17:35][0.6] [10:17:36] In aiding and abetting an attempt at an arrest, lawful or lawful, that that translates into aiding and abetting the shooting that follows. That can't be the law. And. [10:17:47][11.0] [10:17:47] We should be creating special rules of law. There are enough of those. We shouldn't be creating any more special rules of law for one case, because we know the reality is that these things have unintended consequences and they take on a life of their own. We don't need to start down this theory that anybody who's attempting to arrest someone, which. [10:18:05][17.8] [10:18:06] After the last legislative session is pretty much limited to police officers, that any time police officers are attempting to arrest somebody, particularly if they're attempting to do so unlawfully, that they're aiding and abetting the arrest, lawful, unlawful is. [10:18:21][14.8] [10:18:21] Aiding and abetting a shooting or other unlawful use of force that follows. [10:18:25][4.0] [10:18:27] There is no malice murder case, as Mr. Bryan. There is no authority for this case, Your Honor, the state wants to talk. [10:18:35][8.0] [10:18:35] About. But for I want to talk about intervening factors. And before I do that, Your Honor, I would maybe it's just me. Maybe I'm just not smart enough to keep up this McCaskey here. But the way Mr. Tokarski is presenting this now of malice murder argument to the court is in essence, collapsing malice murder into felony murder. What distinction is left here between malice murder and felony murder? When Mr. Tokarski makes these arguments because it's winding up being the same thing? Well, you know, he intended to shoot. Therefore, he intended to kill or he intended to falsely imprison, must intend to shoot. How do we distinguish at the end of the day with the arguments made by the state between malice. [10:19:19][43.7] [10:19:19] Murder and felony murder? Your Honor, this is a case and this feeds into the severance issue. With all. [10:19:26][6.7] [10:19:27] Due respect, Mr. Tokarski, I would humbly suggest to the court that if Mr. McCaskey continues. [10:19:33][6.4] [10:19:34] To proceed along this line with malice murder and we go into the defense case here, we are going. [10:19:38][4.5] [10:19:38] To have at some point antagonistic. [10:19:42][3.2] [10:19:43] Defenses that cannot be overlooked. The state, as I understand it, has not submitted a charge on manslaughter. My understanding that LERN counsel for the McMichael defendants have not submitted a jury charge on manslaughter. And part of that, I think, well,. [10:19:58][15.4] [10:19:58] There's different strategic reasons why people do things. But my point, Your Honor, is in terms. [10:20:03][4.8] [10:20:03] Of proximate cause, do we not have not one but two intervening factors here, factors that are not reasonably foreseeable to Roddy Brian. [10:20:12][9.3] [10:20:13] May be logically foreseeable and something that's conceptually possible, but not reasonably foreseeable in the sense that the law would imply you have [10:20:13][0.0] [258.1] [10:20:23] in the video, and unless I missed it, that this part of the video that state contains is undisputed uncontradicted. In the video at the last minute, you see Mr. Aubury, instead of turning right towards the exit of satellite because he turns to the left. That's not for me to judge. Question why Mr. Aubrey does the things he does. [10:20:46][23.4] 102005 DEFENSE COUNSEL>> But when he turns left instead of right, regardless of his justification or his reasons(?) for doing so, that is an intervening cause, an intervening circumstance, I submit under Georgia law. And at that point, it's not foreseeable to Mr. Bryan, it's not foreseeable that some, just like on the street with the police officers, suicide by cop, is not reasonably foreseeable, nor is suicide by citizen's arrest. [10:20:35] When Mr. Arbery turns towards Mr. [10:21:20][31.9] [10:21:20] MacMichael, that is an intervening circumstance that breaks any causative chain here with respect to the shooting and death itself. Likewise, and I'm certainly not taking sides in this. It'll be for the jury and the court to determine the guilt or innocence of the McMichael defendants. But at the same time, you have a second. [10:21:39][18.9] [10:21:39] Intervening factor in first intervening factor. Is Mr. Aubury pivoting to the left instead of heading for the exit? The second intervening factor is Travis MacMichael discharging his weapon and I'm not questioning why Mr. Arbor's doing what he's doing. I'm not questioning why Travis McMichaels doing what he's doing. What I'm saying is you have a second intervening factor, which is the choice of Travis make Michael to discharge his weapon. It doesn't really matter for purposes of evaluating count one malice murder. If the court can see that whoever's in the right here, whoever's in the wrong,. [10:22:14][34.6] [10:22:14] Whichever party is using excessive force, maybe both parties are using excessive force. Maybe there's some kind of mutual combat theory out there. [10:22:21][7.2] [10:22:22] But for Mr. Bryan's perspective, in terms of proximate cause, in terms of which reasonably foreseeable to him, none of these things are reasonably foreseeable. And I think the court understands the. [10:22:31][9.1] [10:22:32] Consequences. If the court were to go that any other road and if we're going to persist with this issue, we're going to wind up in a severance posture and maybe premature. We haven't heard whether any of the other defendants have testified yet, but I would submit the easiest way to resolve the severance issue is to grant the motion for directed verdict for Mr. Bryant as to malice murder. [10:22:51][19.2] [10:22:53] Moving on to count to felony murder, which is tied to aggravated assault to a shotgun. Again, the arguments come down very much the same way because that the state's position on malice murder is a sense, essentially, although not in so many words, collapsing and felony murder. [10:23:12][19.2] [10:23:13] Where is. [10:23:13][0.6] [10:23:14] The intent on the part of Mr. Bryant to facilitate an aggravated assault with a shotgun? Again, it's one thing to say if the state contends that's what the evidence shows, that Mr. Bryant is attempting to assist in a citizen's arrest, aiding and abetting a citizen's arrest. [10:23:32][17.9] [10:23:32] But there's nothing reasonably foreseeable about killing someone in a citizen's arrest. Just as on the street, there's nothing reasonably foreseeable police officers when a fellow officer without cause discharges a weapon in these days, maybe even a Taser and kills somebody. Again, there is no proximate cause and there is no mens rea. There is no aiding and abetting the shooting. Now, it's done. Karski wants to make a big deal of the fact that the gun is visible. [10:24:06][33.1] [10:24:08] That Mr. Bryant's truck is still moving, although obviously at a slow rate of speed. And therefore, because he doesn't run in a ditch, he doesn't back. [10:24:18][10.5] [10:24:19] Up that he somehow is now joining in the shooting. But again, the I think I understand the state's position is pretty clear, almost uncontradicted, that this is a purported attempted citizen's arrest, again, in the context of a citizen's arrest is the fact that Mr. Bryant is maneuvering his car, his truck, rather, and positioning his cell phone to follow Mr. Aubury and document what Mr. Aubury is doing. [10:24:46][27.1] [10:24:47] Has that circumstance,. [10:24:49][2.2] [10:24:49] Whether he's traveling at two miles an hour, four miles an hour, six. How does that establish his aiding and abetting the shooting itself? Because Mr. Bryant only has knowledge of the existence of the weapon, as we see on the video at the very last moment and still at that time for Mr. Bryant's perspective, even if he's attempting to aid and abet a citizen's arrest, that's not the same thing as aiding and abetting a murder. I mean, would. [10:25:16][26.6] [10:25:16] It be [10:25:16][0.0] [281.6] [10:25:16] It's the same thing, Your Honor, whether Travis McMichaels shooting him or not or whether he's pulling out a club and beating him on the side of the road with a billy club like a police officer would do again,. [10:25:26][9.7] [10:25:26] How is Mr. Bryant's assisting, if that's what it is, in a citizen's arrest showing that he's attempting to aid and abet the shooting, aiding and abetting lawful, excessive use of force. [10:25:38][11.7] [10:25:39] In the making of an arrest that that's just not there. That's just not Georgia law. And again, you know, the state wants says the jury should consider the fact that they had their guns drawn. [10:25:53][13.4] [10:25:54] OK, well, what is Mr. how is Mr. Brian again to know that they have any intent in drawing a weapon, whether it's in the down position, a position, not a use of force expert, but whatever position. [10:26:08][13.9] [10:26:09] Again. How is that telling Mr. Brian that they intend to use excessive force, that they intend to kill him, that they're not trying? Maybe that's the state's theory, that they weren't really trying to make an unlawful arrest. They were just looking for an excuse to kill him or they were just waiting for the opportunity, notwithstanding the fact that they had lots of opportunities to shoot this gentleman over five minutes. He's clearly in terms of proximate cause. When you look at the video, you. [10:26:35][26.0] [10:26:35] See Mr. Aubury, he's well within range. He's well within shotgun range. He's also well within range of driving Michael's handgun at the time that Mr. Brian is pulling for Mr. Bryan's perspective, he didn't have any reason to think they were trying or intended to hurt these people. They had ample opportunity to do that long before he got there. Long before he pulled up. Again, I'm asking the court to grant a direct a verdict on count two felony murder based on the underlying count. Six, aggravated assault with a shotgun. [10:27:04][28.4] [10:27:05] Count three, felony murder, aggravated assault with a pickup truck. Your Honor, although. [10:27:15][10.1] [10:27:16] The statute defines the grounds for a directed verdict, I believe Miss Dunn Tokarski his acknowledged that Casey I'm sorry, has acknowledged that it's not that simple, that the standard essentially goes back to Jackson v. Virginia. It's not just whether there's, quote unquote, any evidence to submit something to a jury. There has to be sufficient evidence from which a rational juror could find guilt beyond a reasonable doubt. [10:27:40][24.1] [10:27:41] There is a severe lack of. [10:27:44][2.9] [10:27:44] Evidence in this case. There's no evidence that Mr. Bryan intended to do so. What they're doing is they're basing that on words. And I'm going to incorporate it here for purposes of the motion for directed verdict, the arguments made in connection with the special demur in this case. And of course, those have also all already been addressed to some extent by counsel for the McMichaels. There's no witness there, no other there is no witness to what Mr. Ryan did. There's no video of an aggravated assault. It's all contradicted by the physical evidence in this case. And I don't have the citation in front of me. But with respect to aggravated assault with a motor vehicle, I think the case law is a case specifically out there. This is speculation as to aggravated assault is inappropriate. And there are some times when there's insufficient evidence and where the jury is basically being asked to speculate as to what happened. And this is that case, Your Honor. And with terms of felony murder, again, you get back to the same issue, assuming for the moment that Mr. Brian was committing an aggravated assault with a pickup truck down on VAFA. How does that establish how is that. [10:28:55][71.1] [10:28:55] The proximate cause of a felony murder that takes place down on HomeStreet Street later? [10:29:02][7.0] [10:29:03] And for the jury to be able to return a verdict because of the way this indictment is phrased, the jury can return a verdict of guilty without specifying. [10:29:12][9.4] [10:29:13] Where takes place. How do we know that the juror, certainly all 12 of them have made. [10:29:17][4.1] [10:29:17] A decision as to that, because without that, how can they make a determination as to proximate cause? This is a huge problem. [10:29:24][6.8] [10:29:26] And I'm going to get back to count seven in a moment. 102850 DEFENSE COUNSEL>> But in terms of felony murder, there's just no proximate cause here. It's not reasonably foreseeable. And it's a huge stretch to say that what Mr. Bryan is doing out there in his truck is causing the death. [10:29:05] In fact, I think was very pointed out that the their truck is stopped. It's not even moving. And Mr. Unicast talked about the engine, but I think the video speaks for itself. Certainly, Mr. Aubrey is not assaulting at this time. [10:30:05][38.4] [10:30:06] Your there's no proximate cause. There's insufficient connection to the death. I'm going to turn to count four felony murder, which is based on false imprisonment. [10:30:15][8.9] [10:30:16] Your Honor,. [10:30:16][0.6] [10:30:16] I do believe that there was a special demurrer filed in this case previously about false imprisonment. And if I recall, the court cited a case, I don't have it in front of me. [10:30:26][10.3] [10:30:28] About you can assault, you can imprisoned by with a pickup truck. My recollection of that. [10:30:35][6.6] [10:30:35] Case [10:30:35][0.0] [303.3] [10:30:35] with that case were not just where someone was being chased, but where they actually were struck and went. [10:30:41][5.9] [10:30:42] Over the hood. And then the person in the car got out of the stabbing. [10:30:44][2.9] [10:30:45] That's certainly factually distinguishable. But again, what is it if the falsus at the time of the shooting, there is no false. [10:30:54][9.0] [10:30:54] Imprisonment. Your Honor, at the time of the shooting, Mr. Aubrey, to borrow a football phrase, has broken containment. He is past both trucks at that point and has a clear line to the exit to the neighborhood. So I don't understand how you have. [10:31:14][19.4] [10:31:14] A proximate how you could have proximate cause between a false imprisonment, if that's what it is, and the shooting itself. And because there is it not. [10:31:24][10.1] [10:31:24] Also notwithstanding Georgia law to the contrary, that false imprisonment is not the kind of felony that will support a felony murder charge. There are other jurisdictions that disagree with Georgia and that can under their laws, they do not view false imprisonment as a violent offense. That would that would be a felony based on false imprisonment on. I certainly want to preserve that argument. [10:31:48][23.3] [10:31:51] Because it's just I guess the best way to phrase it in terms of Georgia law is false. Imprisonment really belongs is more like a status offense. Than it is a violent offense. And in that respect, it should not be the underlying felony for a felony murder charge. We still have issues with the mens rea. We still contend that the false imprisonment is unsupported factually. But again, in terms of foreseeable. [10:32:18][27.4] [10:32:20] How is the shooting, Your Honor, reasonably foreseeable to Mr. Bryan, assuming that there is a false imprisonment. [10:32:28][8.5] [10:32:29] How is how. [10:32:30][0.7] [10:32:30] Is the shooting itself? It's one thing to say to Mr. Bryan aided and abetted a false prison. That's not the same thing as saying he aided and abetted a shooting. And that again goes back over Grant. I think I've already covered and I won't do that to the court again. [10:32:44][14.0] [10:32:50] Count five, felony murder again. We contend the criminal attempt to commit felony murder is not the kind defense upon which a felony murder charge can be created. We would suggest to the court that that is even a step further removed from Folsom Prison in itself, and that furthermore, that the attempted felony, attempted false imprisonment is not the proximate cause. Again, of the shooting or death of Mr. Aubrey. [10:33:19][28.3] [10:33:21] There are real problems there of the causal link. Count six, aggravated assault with a shotgun. Again, there is. [10:33:29][7.7] [10:33:29] No aiding and abetting for Mr. Bryan, aiding and abetting a citizen's arrest, even if a lawful is not the same thing as aiding and abetting a shooting. And I won't go back down that ground any further counts, said an aggravated assault with the trucks cocounsel has already spent a good bit of time addressing this. I've addressed it in the special demurrer. It's troubling to me that the state comes in here when three police officers, your honor, three seasoned police officers about two. Well, season one, we could argue about all interview, Mr. Bryan. And that's the basis of this count is Mr. Bryan statements himself. There's no other evidence other than that in this case. And three of these all three. [10:34:21][52.5] [10:34:22] Of these officers interview Mr. Brown or populist Brian at length. All three summarized those interviews. None of them refer to Mr. Bryant's conduct as an aggravated assault. None of them do that because it's not there. The jury, your honor, is required to get to the truth of the matter. It's not just the words Mr. Bryan uses, which could be anybody's words can be twisted out of context is the context in which you are given. It's the meaning that's meant to be conveyed. And it's clear from the testimony of the state's own witnesses. But that meaning is not there. There is no aggravated assault with Mr. Bryan jumping. [10:35:03][41.0] [10:35:03] Back and forth here. I guess make sure where I am. [10:35:06][2.7] [10:35:08] Your. [10:35:08][0.0] [10:35:08] Honor, the evidence is in terms of the speed, for example, that while the state refers to Mr. Bryan is chasing, that the evidence is on the video at two miles an hour. [10:35:19][10.6] [10:35:22] Your Honor, with respect to count eight, the false imprisonment we are,. [10:35:27][5.0] [10:35:27] The indictment alleges in the state is stuck with the language in the indictment that he was that the confinement. [10:35:32][5.5] [274.5] [10:35:33] And detainment occurs on Holmes Drive. But the evidence that the state is relying on is coming from Burford. And. [10:35:43][9.6] [10:35:43] He can't he can't be convicted at this point of that. And how the court would charge a jury, I have no idea. [10:35:50][7.0] [16.5] [10:35:57] Your Honor. On count eight, the false imprisonment. I talked earlier about the breaking containment. There is some Georgia case law out there. And for example, I guess this is the best analogy I can come up with here. [10:36:16][19.3] [10:36:17] In a bank robbery when. [10:36:20][2.6] [10:36:20] An individual committing a bank robbery pulls out a gun and tells everybody to get down on the ground. [10:36:24][4.0] [10:36:25] Under Georgia law, that is a false imprisonment because they get on the ground. But this case isn't the case when they get on. [10:36:34][9.1] [10:36:34] The ground. Mr. Aubrey never submits to being arrested. And in this case, this is what the state is pursuing here is equivalent to someone of store saying, everybody get down on the ground and the person just continuing to run right out the door. That's what we have here. And. [10:36:53][19.2] [10:36:54] That is not a false imprisonment under Georgia law. And again, if this Dunn Tarkovsky has a case citation for this court to any Georgia case that is remotely factually close to this one, I'm sure she'll present it, but. [10:37:08][13.7] [10:37:08] I can't find it, your honor. Attempted false imprisonment. That's count nine. [10:37:13][4.6] [10:37:14] We. [10:37:14][0.0] [10:37:14] Contend that the evidence is simply insufficient to submit that matter to the jury. Moreover, we think the evidence that was presented during the Cates case, state's case in chief is shows affirmatively abandonment, that. [10:37:32][18.2] [10:37:33] Mr. Bryant has abandoned this chase, as they call it. And the video itself, I think, demonstrates that the time of the shooting, Mr. Brown, is simply a witness to the shooting itself and to those events. And under those circumstances, we believe that he is entitled to have an acquittal as to count nine and all the other counts in this indictment, we would ask that attracted very few grand on all counts and that Mr. Bryan be released forthwith. [10:37:58][25.6] [10:38:00] From the state insurance that we break briefly for restaurant. Yes, we're going to take a ten minute recess. Let's go and take ten minutes. We'll reconvene at 10:00 [10:38:00][0.0] [116.4] [10:38:08] for. All right. We are back on defense. President from the state judge Musharraf talked a lot about citizen's arrest and that being the defense in this case. But there has been any evidence that anyone was making a citizen's arrest. Citizen's arrest was never said by any of these three defendants at any point in time. The evidence has been presented is that Mr. Ryan and Mr. Gaborik, Michael, never once said we're making a citizen's arrest, that we're placing you under arrest for the crime of this, that we saw him commit a crime that day. That was not it. It was all we wanted to stop and talk to him, and then we wanted to detain him. In fact, Mr. Rubin said in his opening statement that the intent was to detain him so that the police could show up and do whatever they were going to do after the detention. It's not citizens detention. It's citizen's arrest. So while he talked about that, that is really not something to be considered in a directed verdict motion. And just because a set of facts hasn't yet been specifically identically brought before a court, this sets of facts. No two cases are going to have the same set of facts. They're just not. And so the fact that there is felony murder based on false imprisonment, case law out there where someone has been found guilty, felony murder based on false imprisonment, someone's been found guilty of prior to crime, based on aggravated assault with a shotgun. Someone's been found guilty of party to a crime for aggravated assault with a motor vehicle. Those cases are out there, maybe not with these specific facts. So that argument doesn't really hold water either. In this. [10:54:00][951.3] [10:54:00] Particular case, when it comes to Mr. Bryan. And this will apply for all of the charges here. Once again, it's party to a crime, and that means intentionally aid and abet his statements to Agent Seacrest and actually at the scene to Officer Minshew were about yeah, I thought they had done something. You know, I thought I thought I was trying to help them get this guy Folsom in prison. This guy captured this guy, and that was what his intent was. It was to falsely imprison this particular person and he intentionally used his vehicle to go ahead and do that both on Barford when he intentionally committed an aggravated assault, putting Mr. Aubrey and reasonable apprehension of receiving serious bodily injury as part of his intent to falsely imprison him on before those two things contributed to his death. Because but for those things happening, Mr. Aubrey would still be alive. So it is as the pattern charge will be, given his actions played a substantial and necessary part in causing the death, because without him doing those things, Mr. Aubrey would not have been trapped like a rat over on Holmes Drive between the two pickup trucks. As we noted before, Malice chased him through the public roadways in the pickup trucks, tried to stop him, cut him off with the pickup trucks. He drove them into a ditch. He assisted, pinning him between the two pickup trucks, trapping him like a rap between the two pickup trucks. Mr. Aubrey had not threatened anybody, had shown no aggression. Mr. Aubrey had no weapons. He was totally unarmed. And here Mr. Bryan never called 911. He continues pursuing Mr. Arbrey. Mr. Bryan never says anything on the recording. He pulls forward despite the shotgun coming out, despite the stalking being pointed at himself. Doesn't slam on the brakes, doesn't yell, doesn't protest, doesn't honk, just keeps driving forward driving. Mr. Forward, he helped to get Mr. Aubrey to this location by redirecting him up homes. The most important thing is when you have [10:54:00][0.0] [951.3] [10:56:18] common criminal intent. 105536 And here the state's position is, is that if parties to the crime, there's common -- criminal intent to attack Mr. Arbrey via false imprisonment, aggravated assault with the pickup trucks, aggravated assault with a shotgun and false imprisonment ultimately on Holmes. [10:55:55] And that common criminal intent to do all those things, not necessarily the conspiracy. I'm not talking about conspiring in advance and coming up with a plan to sit around the kitchen table, we're talking about what they actually did, acted in concert with each other. The white truck came down homes. Mr. Bryan was going up, homes Mr. Aubrey had already turned around, was running back in the white truck past him. Mr. Bryan did not abandon this. He turned around. He kept going, and then he accelerated to catch up to Mr. Aubrey past the blue mailbox, saw the shotgun and kept going. Common criminal intent, which resulted in malice murder, resulted in all the felony murders. All of his actions did substantially contribute to the death of Mr. Aubrey. And they were necessary because without those actions, Mr. Aubrey would be alive. We ask that you deny the directed verdict for all of the counts. As to Mr. Brian, thank you. [10:57:46][88.6] [10:57:48] Any final word from Sprunt. [10:57:49][0.8] [10:57:54] Your Honor, in the state, it is constrained to acknowledge that they have no legal authority for their position, for example, on malice murder. And I think the court should take seriously the motion to grant the director there is no malice murder or take a case against Mr. Bryan. With all due respect to the state, there never was that there are some other issues in the case. There are more challenging and more troubling. But that's an easy call. I think it's an easy call on count two, felony murder for Mr. Bryan. Only again, the state has no flop. It doesn't even pretend to give an explanation as to how Mr. Bryan thinking that he's Haitink, a citizen arrest lawfully or unlawfully, how that translates into an intent to shoot or an intent to injure. And it's deeply troubling to me that the state can't have the Canada acknowledged the court that maybe in retrospect counts one and count two. As to Mr. Bryan, we're not well thought out. There's no proximate cause. There's no reasonable foreseeabili. [10:58:54][60.4] [10:58:54] Ty Here. And, you know, I'm impressed with the argument that was made. But still, Mr. Bryan is entitled who directed verdict? Certainly on count one, almost certainly on count. [10:59:07][12.5] [10:59:07] Two. And arguably, as to every count in the indictment, thank you. [10:59:11][3.5] [10:59:13] Error. I apologize profusely. I had pulled up a case and I forgot to cite it. And it is both the state of Georgia. What Moore vs. the state in Millburn versus the state it is three eleven Georgia five six. And in this particular case, a group of eight hundred of a drug dealer and one person stayed downstairs to keep the boyfriend away while they went up to go ahead and search the apartment. Unfortunately, the girlfriend was in the apartment and the two that went up there, one executed the girlfriend. They came downstairs. The state obtained a malice murder conviction on man downstairs who simply kept the boyfriend from protecting the girlfriend upstairs. And that is a case that does show someone who doesn't have their finger on the trigger, who's downstairs doing some other action, the same sort of criminal intent which we feel that's here, state criminal intent to falsely imprison [10:59:13][0.0]
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