TVU 22 ANDREW YANG TIPTON IA COFFEE MEET AND GREET ABC UNI 010620 2020 TVU 22 ANDREW YANG TIPTON IA COFFEE MEET AND GREE.Sub.01.wav [15:25:47] Hello. How are you? It's good to be here. Thank you for the warm introduction so far. It's time to look taller. [15:26:01] It's great to be here. This is my 24th trip to Iowa over the last number of months. And every time gets better and better and better because the energy is higher. The groups are bigger. My first crowd is not as big as this one. The voting is closer and closer. There were only four weeks away from the caucus. [15:26:19] She does not feel like this. But you all are among the most powerful people in our country today. You have the future of the country in your hands. I've done the math. Generally, Californians, each of you is worth. [15:26:36] I came here and simply Democratic powers. Each Iowa is worth about a thousand Californians in terms of what you have to shape the future of this country. How many of us are here in this cafe right now, whether you would trump me an estimate? There are 400. [15:27:01] There are about 40 people in this world, but even that is the equivalent of one football stadium full of Californians. [15:27:09] That's the power you have. That's why it's a thrill and privilege to campaign here. Every single time the question is how are you going to use this power? In four short weeks to be, you must use that power to help solve the problems. [15:27:22] I got Donald Trump elected in the first place. Now, you all are Democrats for the most part. How did you react to Donald Trump won in 2016? [15:27:34] I was so sick. Nausea, shock. [15:27:41] I I'm the same way. I said, oh, my gosh, the country just decided to take a bet on the narcissist reality TV star as our president. And though I was shocked. We all have family members, friends and neighbors who celebrate this. And I know that's true for all of you because Donald Trump won Iowa by more than eight points. You have to ask, how the heck is that possible that you won the purple list of purple states, Iowa? By that much, if you were to turn on cable news at any point in the last several years, why would you think that Donald Trump is our president? [15:28:16] Russia. Russia. Hillary! Hillary! E-mails. Fox News. Deep sea. Conspiracies. Racism. Hager. All of this been danced together in some kind of toxic brew. This is why I've been numbers guy, as you can tell. The man looked up in. And this story as to why he's our president is clear in the numbers that we blasted away. Four million manufacturing jobs over the last number of years. And where were those jobs? Ohio, Michigan, Pennsylvania, Wisconsin, Missouri. [15:29:02] And more than 40000 right here in Iowa. I have been to those towns here in Iowa. And after the manufacturing plant closed, the shopping district closes. People, the schools rings. That community never recovers. I have seen that same story played out in Missouri, Ohio, Michigan. Over the last seven years. Running Venture for America nonprofit. I started. [15:29:28] In 2000, Ted. [15:29:31] And I have to say first, I want to give a shout out to my wife because I was a pretty normal guy when I decided to start a venture for America, I was like, hey, I quit my job, start a nonprofit in the country, help people grow businesses, choose a good sport about that. You even better support it. When I 70 years later was like, hey, I want to represent United States. And occasionally someone thanks to you running for president. And I say thank my wife because one, she let me run in the first place. [15:29:59] And number two, she's been sacrificing much more than anyone else while I've been away. [15:30:06] So I certainly much more prepared and I saw firsthand what happened in these manufacturing towns and I saw that it led Trump to become our president. Wherever you draw a line between industrial automation and a voting area and a movement towards Trump, it's like a straight line up to the right. If you look at the data. [15:30:26] Unfortunately, what we did to those manufacturing jobs were now going to do two retail jobs, call center jobs, fast food jobs and out through the economy. How many of you notice stores closing around where you work in this part of Ireland? [15:30:39] Towards. Why are the stores closing? [15:30:45] I like shopping in a weird Amazon. Amazon soaking up 20 billion dollars in business every single year, causing 30 percent of your stores and malls to closed forever. Most common job move out. Most common job in our country is retail clerk average retail purchase a 39 year old woman making between 8 10 dollars an hour. What is her next move? When the store or mall closes? How was that was unpaid federal taxes last year? Zero. That is your math. [15:31:15] Twenty billion out, 30 percent of your stores close. You get zero back. You've all seen the sell Sara kiosks in the CBS, the grocery store, the fast food restaurant. But it's not just the obvious changes we can all see in front of our eyes. When you all call the customer service line of the big company and you get the bot or a software, I'm sure you do the same thing I do, which is you pounds 0 0 0 as a human human human representative or better continue until you get some of the library. Really? And that's. [15:31:45] We all do that because we need that software. It's terrible. But in two or three short years, the software is going to sound like this. Hello, Andrew. How's it going? What can I do for you? It'll be fast, seamless, delightful, little bit overly friendly, perhaps. What is that going to mean for the two and a half million Americans who work at call centers right now think between 10 and 14? No, no. The rubber is really going to hit the road when the robot trucks hit our highways. [15:32:09] How many of, you know, a truck driver here and I were three and a half million truckers in this country. And my friends in California are working on trucks that could drive themselves. They say that 90 percent of the way there. Have you done that? This is coming. A robot truck just transported 20 tons of butter to California, to Pennsylvania three weeks ago. Three of human intervention. Why butter? I have no idea. [15:32:33] Google robot butter truck. [15:32:38] You get a big stack of pancakes. [15:32:42] What is this going to mean for the three and a half million truckers or the 7 million Americans who work at truck stops, motels and diners that rely upon the target of getting out and having a meal every day? How many have you been to Highway 80? Davenport says 5000 people stop there every day. What will that number be when the trucks don't have drivers? This is the greatest economic transformation in the history of our country. [15:33:05] . What experts are calling the fourth industrial revolution. When's the last time you heard a politician say fourth industrial revolution? Three seconds ago. And I'm barely a politician, so I was seeing all of this. In 2017, Trump wins. I have a oh, my gosh. I should really dig into why he won. I see the information I see. OK. Fourth industrial revolution. Four million manufacturing jobs accelerating, 30 percent of stores and malls close. [15:33:37] Most common jobs in our country are going to disappear. And I went to our leaders in DC and I said to them, what are we going to do to help our people manage this transition? And what do you think that both of these these said to me when I said, what are we going to do? Someone just made the same noise, though, earlier this trip in Iowa. Someone made the Scooby Doo noise. So the three answers I got out of D.C. were number one. We can't talk about this. Number two, we should study this further. And number three, we must educate and retrain all Americans for the jobs of the future. [15:34:19] How many of you heard someone say something like that last month? Educate, retrain all Americans. It sounds pretty good, but I'm the numbers guys that I look at the studies. You all want to guess how effective government funded retraining programs were for the manufacturing workers who lost their jobs. The Midwest. 10 percent. That's a very good guess. I agree. You low because it is low real numbers here in a 15 percent. They're a total dud. The reality is half of those manufacturing workers have lost their jobs. [15:34:47] Never worked again. And that group has filed for disability. You then saw a surge in suicides and drug overdoses in those communities to the point where American's life expectancy has now declined in the last three years. No, no, no. The last time American life expectancy declined three years in a row. World War 2 is a very good guess, but you have to go back further than that. The Spanish flu of 1918, a global pandemic that killed millions. That's the last time America's life expectancy declined like this. It's highly unusual in developed country for life expectancy to ever decline. [15:35:25] Ordinarily, you get a richer, stronger, healthier, and everything just keeps on edging up. But here in the US, we've gone down and down and then down again. [15:35:33] So what I said is that the folks that D.C., they said, well, I guess we'll get better at retraining them and then just went back to what they were doing. And one person said something that brought me here to you all today. He said, Andrew, you're in the wrong town. No one here is going to do anything about this, because fundamentally, this is the town of followers, not leaders. [15:35:53] And in order for us to do anything about this, you would have to create a wave in other parts of the country and bring you crashing down. That's the challenge accepted. I'll be back in two years. This was two years ago and here we are. [15:36:09] As you all are part of that wave that will rewrite the rules of the 21st century economy. Hard for us to work for you. To work for families. To work for people. [15:36:28] I'm here now. Totally anonymous a year ago and now I'm fifth in the polls to become the Democratic nominee. And rising very, very fast. My campaign raised 16 and a half million dollars last quarter in increments of only thirty five dollars each. [15:36:43] So my fans are almost as cheap as Bernie's, but there are an awful lot of them. [15:36:50] Zero corporate PAC money. No, I gave. Anyone. All the grassroots people power donations because this is our chance to retake our government and make it work for us. Most Americans look up and they see the government pipes is clogged full of lobbyist cash. Millions and millions of dollars that they disappear. There's nothing they can do about it. They're generally right. There is nothing they can do about it. It's up to you all to flush the pipes clean. In four weeks. That's the magic. That's the power. [15:37:29] So the question is how will we rewrite the rules to work for you? If you here today, you heard at some point that there's a man running for president who wants to give everyone 1000 dollars a month. When you're and the first time you've heard it, I know you thought that's a gimmick. That will never happen. [15:37:47] Is this too good to be true? But this is not my idea. It's not a new idea. Thomas Paine was for this at the founding of our country, Public Citizen's Dividend for all Americans. Martin Luther King parkways in the 1960s. And it is what he was fighting for when he was killed in 1968. I know this in part because I sat down with Martin Luther King's son in Atlanta and he said this is what his father was fighting for when he was assassinated. [15:38:13] It was thought mainstream in the 60s that a thousand economists, including Milton Friedman, one of the fathers of modern economic theory, endorsed this plan. It had it passed the US House of Representatives twice in 1971 under Richard Nixon, and then eleven years later, Wednesday passed a dividend. Now everyone in that state is between one and two thousand dollars. Impressive test. And what state is that and how did they pay for it? [15:38:39] And what is the oil of the 21st century? Technology software, A.I., self-driving cars and trucks. A study just came out that said that our data is now worth more than oil. How many of you saw that study? How many of you got your daily check in the mail last month? If our data is somehow now worth billions of dollars. Where is all that money going? [15:39:04] That's right. [15:39:06] Facebook, Amazon and Google, Apple and the trillion dollar tech companies that are paying zero or near-zero in taxes to see how this works, I want you get sucked dry, your neighborhoods get depleted, your store is closed. The biggest winners in this economy mean nothing. That is what you're here to change. That's what you're going to use your power for. Jeff Bezos is worth one hundred fifteen billion dollars today. Post divorce, do we think it's appropriate that his trillion dollar tech company pays less in taxes, that everyone who's here today? [15:39:41] Is that Amazon's fault? No. That's our fault. We had to be pretty dumb to let them get away with paying zero in taxes. If we get our people, our tiny, tiny, fair share of every Amazon sale, every Google search, every Facebook and eventually every robot truck mile and I work in it, we can easily afford a thousand dollars a month for everyone in our country, particularly because when this money is in your hands, where will he go? How will you spend it? How much it will stay right here in Iowa. Most of it, not all of it. [15:40:21] You might get your own Netflix password instead of sharing all the time, but most of the money would go to car repair as you've been putting off at daycare expenses and literally sign ups. [15:40:37] End this coffee shop and local nonprofits and maybe Democratic Party dues and religious organizations. This is the trickle up economy from our people, our families and our communities. This would give every American, particularly those in rural areas or places that are getting blasted by automation. A real path forward. This is the economy. You can create and make real. Just one month. And this money, as it makes you and your family stronger, healthier, mentally healthier. Improves people's decision making, improves people's optimism. You heard from Colin Christensen, right? And Kyle is traveling. [15:41:24] Do something watching the livestream school calls one hour, maybe 15 or 14 or 13. Families around the country were giving a thousand bucks a month. And there's an abstract argument you can make me like, hey, everyone should have this foundation. [15:41:38] And when you see it in real life with Kyle and his mom or Jody Barzee and her daughter or Mallory Shannon. For all of these families around the country, you see that a thousand dollars a month is a game changer for many of us because it helps take the boot off the lawn for. It gives people a chance to breathe and think more clearly, make the kind of decision that they want to make, do the kind of work that they want to do. [15:42:06] Right now, we're getting beaten over the head with the fact that things are great in our economic measurements, GDP or record highs, corporate profits, record highs. Stock market prices, record highs. Headline unemployment, record lows. And yet we have this sinking feeling that things are not great. Corporate profits are at record highs. Yes. Also a record high right now in the United States of America. [15:42:28] Suicides, drug overdoses. Stress. Mental illness. Student loan debt. Financial insecurity are at record lows. The United States starting a business, getting married, having children. Anything that's a sustained act of optimism is now at record lows. United States of America. If you have record high corporate profits and your life expectancy is going down, what do you listen to? We know which one D.C. is listening to. D.C. can't even see the people I can see is the corporate profits. Washington, D.C. today is the richest city in our country. What do they produce? That's a thinker, right? [15:43:10] Whatever they produce, business is awfully good. Donald Trump said he wants to drain the swamp. I want to do something different. I want to distribute the swamp. Why are we employing hundreds of thousands of people in the most expensive city in our country? We should be moving those agencies and personnel and jobs to Iowa, Ohio, Michigan, Florida. It would save us billions of dollars immediately because the cost would be much lower. [15:43:43] And I would argue that their decisions would be better because they would live someplace normal among people as opposed to in the D.C. vote. [15:43:54] So we have these economic measurements that are leading us off a cliff and we need to redefine them very, very quickly. [15:44:01] Robot trucks will be great for corporate profits and GDP, but they'll be terrible for many Americans. What we have to do is start measuring how we're doing by how we're actually doing things like our health and life expectancy, the ability to retire in quality circumstances and this of dividend stocks on top of Social Security. [15:44:20] Because we know you cannot retire and Social Security benefits and this would give Americans a real chance to retire in quality circumstances. Our kids are doing clean air, clean water, mental health and freedom from substance abuse. These are the real numbers that we should be measuring our progress with. And as your president, I would change our measurements to these numbers and then present them to you every year at the State of the Union. I'd be the first president to use a PowerPoint deck at the State of the Union. [15:44:53] And I know how wrong these numbers are, in part because of my own family. My wife is at home with our two boys, one of whom is autistic. What is it? Her work included that in our economic measurements every day or every year. Zero, and it was not just her and stay at home parents here in Iowa and around the country. It's people like Kyle who are taking care of ailing loved ones. It's nurturers, it's volunteers, it's coaches and mentors, it's artists. [15:45:22] Most all of the time, it's journalists. Increasingly, we have zeroed out two thousand local newspapers in this country causing local news deserts all over the country. And I want to ask you all, how can you have a functioning democracy if you don't have any news in your town? If you believe in democracy, you actually need to have a local papers that people have some information about how they're voting. These are the things that we claim to value most highly in our country, our families, our community, democracy. And they are getting zeroed out one by one. [15:45:56] What you have to take to the rest of the country and for weeks is this idea that economic value and human value are not the same things that we have intrinsic value as citizens, as Americans and as human beings. If you take that message to the rest of the country, it will catch on like wildfire. I guarantee you, because the folks in New Hampshire are waiting for the bad time. [15:46:21] I was just there. There's a lot of enthusiasm and energy around this message in New Hampshire. But you have to make the case for it to the country on February 3rd by caucusing for. Donald Trump is our president today because he had a very clear set of ideas. He said he was going to make America great again. [15:46:43] What did Hillary Clinton say in response? America's already great. [15:46:50] Remember that it's been a long three years, but it is about to come to an end. [15:47:03] That response did not work because the problems are real. The suffering is real. How many of you all are parents like me? If you're a parent like me, you had this sinking feeling for quite some time that our kids are inheriting a future that is not as great as the life that we have let as their parents. I don't want you to acknowledge that, but you've all thought that. I know because I'm a parent. I've thought that. And that is true in the numbers. [15:47:29] If you were born in this country in the 1940s, first congratulations. But if you're born in the 1940s in this country, there's a 93 percent chance that we're going to be better off than your parents were. That's the American dream. That's what brought my family. That's what's worked for this country for so long. If you were born in the 1990s with a sense that some of you were. You're down to a 50 50 shot and it's declining fast. That is why we feel the way we do, because we are leaving a future that is far darker for our kids and they deserve. [15:48:00] I'm running for president not because I dreamt about being president of the United States. I'm running for president because like so many of you here in this room today. I'm a parent and a patriot. I have seen the future that lies ahead for our kids. And it is not something I'm willing to accept. They deserve better than this. [15:48:23] Was alone, an entire country can change it. You and you alone can rewrite the rules of this 21st century economy to work for our children's. You can look them in the eyes and say, we did all we could. Donald Trump made a simple case that he was going to make America great again. And he was right about the problems. The problems are real, but in solutions were the opposite of what we need. What were his solutions? Build a wall. Turn the clock back. [15:48:53] . Bring the old jobs back. Iowa, you don't need to do the opposite of these things. We need to turn the clock forward. We have to accelerate our economy and society to rise to the real challenges of this time. We have to evolve in the way we think about ourselves and our work and our values. I am the ideal candidate for this job because the opposite of Donald Trump is an Asian man who likes math as. [15:49:26] Yes. Yes. You said just real revolution. How Washington's not addressing it. Aside from this thousand dollars a month, what would be your plan to address this kind of move for jobs? Well, if people were losing jobs. Thanks for the question. [15:49:46] I did write a book about a whole suite of things that we need to do. So I'm going to give you the high level, Mary, the number one thousand bucks a month. It's not just for individuals. If you imagine this town with an extra thousand dollars a month. How did people live in this town? [15:50:04] Two hundred thirty two hundred. [15:50:07] So let's say there was another thirty two million dollars in disposable income flowing through this town every day, and it was going to this coffee shop, the garage, the daycare center, the tutoring service, the nonprofit. Then each of these businesses might need to hire another person to you end up creating jobs right where people work and live. And you also end up spurring creativity and entrepreneurship because some would be much more likely to start something new if there was an extra thirty two million dollars circulating through the economy. [15:50:39] And they knew that if their business did not work out, they wouldn't starve to death. They'd be OK. So the freedom dividend is a huge foundation for a different kind of economy that actually resembles our community's needs and values. But we can't stop there. We have to do more. You redefine our economic measurements so that people can see what the real problems are and you see that we're in a mental health crisis. We're in a wellness recession. [15:51:06] And then you start trying to solve those problems in a meaningful way. You reform our educational system so that people have access to the kinds of opportunities that will exist for a long time. We have to stop pretending that colleges by everyone in this country. Only a third of Americans are going to go to college. We need to invest in practical trade, vocational programs at the high school level. [15:51:29] Right now, only 6 percent of American high school students are in a technical or vocational track. In Germany, that percentage is 59. Think about that goal. And these are among the most resilient jobs that are going to be with us for years. [15:51:42] Can you imagine what it would take to have a robot plumber or a robot repair person? My child care provider, a robot campfire. Yeah. Those jobs will be with us for a long time. [15:51:54] So if we invest in that, those vocational programs, then we can prepare people for an economy that will be with us for decades to come. [15:52:04] So those are some of the big moves I would make. But it starts with redefining our economic measurements to revolve around us and not. The corporate bottom line, and I'll give you a couple of anecdotes. I spoke to 70 CEOs in New York City and I asked them how many of our look, how many we're looking at replacing their back office medical workers with software and I guess how many hands on about a 7 0 70,. [15:52:30] Because if they didn't have their hand up, they could be fired. The next word. Every CEO's incentive are just to maximize the bottom line and the bottom line. And our communities are now diverging in dramatic ways. And we have to line them up as quickly as possible. [15:52:46] But thanks to the president, it's the right one. Sir, how are you? How do you propose getting cooperation? Help. How are you? [15:52:55] Give the people a chance to cooperate so that the have nots. [15:53:03] You didn't hear that? How can we get everyone to cooperate in this vision and get the haves to care about the have nots was included. So I'm not the only person who's looked at the numbers and our economy. We need to change something very, very dramatically. Know looked at it and said the same thing. Jamie Diamond, the CEO of JP Morgan Chase, biggest bank in the country. He looked at the numbers and said we should declare a national emergency around the fact that the U.S. economy is not working for most Americans. And then he said we should have a negative income tax, which is an income floor for all Americans. Does that sound familiar? [15:53:37] So this is not the far out futurist Asian man candidate like, isn't it like the CEO of JP Morgan Chase who looked at the same numbers and made the same conclusion? If you imagine a country where we all have an extra twelve thousand dollars a year to spend, is that good for JP Morgan Chase? Is that good for Amazon? Is that good for AT&T, like all of the companies actually win? If we get this money into our hands, it creates a virtuous cycle. It's bad for them if the middle class disappears in this country, which it is. [15:54:11] SO if you look at my plan, there are many people who are at the top of the economic ladder who concluded that this is the right approach. I've been endorsed by Elon Musk in many of the prominent taxi years. And you would think that some of them would be like, wait a minute, but, you know, this might be money out of my pocket, but they're smart enough to see that this is a win for everyone. [15:54:32] And the greatest thing is a win for us, our families, our communities, because all the money would flow through our hands and make us stronger, healthier, better educated and everything else that we want. The big guys don't lose through this. [15:54:45] You're about five. I'm just wondering if you think that the unions are obsolete. [15:54:52] We would really need business owners and people with money, with property. That's the only reason there is a middle class anyway. Because you are speaking from experience. [15:55:04] I agree. Unions have been a strong force for good in terms of worker treatment and compensation and benefits. The middle class may not exist at all if not for unions. I'm pro union, this money in our hands actually strengthens workers ability to negotiate, and I know this because this plan was championed by a guy named Andy Stern, who used to run the biggest labor union in the country, the SEIU. And he said that if you had this money and workers had, all the sudden every union could negotiate much, much harder because they know if they do end up calling a strike, then people can go home and not feel like they're going over into their savings as quickly. [15:55:46] But you actually can survive for longer. If push comes to shove. Unions have been an historic force for good. Like a fortress against the storm. But the fact is the fortress has shrunk over the last number of years and the storm has gotten stronger. So this is a game changer for workers rights and empowerment that will enable the fortress to start growing again. [15:56:10] Sure. Hi. I appreciate. You are very creative financial, economic policies. Very outside the box, very well. What would you do with a message? I created with the I ran from. And our share of the debt crisis we got right now. [15:56:33] I was one of the candidates who just immediately called this out as a grievous mistake because 78 percent of Americans want nothing to do with the war in Iraq. What does our Constitution say? It will be an act of Congress to declare war. And unfortunately, Congress has ceded that authority to the president over the last 19 years with the EU, and that is why we've been in a constant state of armed conflict, probably two decades accountable as our president. [15:57:01] I would pull us back from the brink of war and I ran, I would repeal the EU IMF and say it is for Congress to declare war as it was framed in the Constitution. I've signed a pledge to end the forever wars because I know Americans do not want to be a constant state of armed conflict. We spent over a trillion dollars in Iraq, six trillion dollars in the Middle East, and I've talked to hundreds, even thousands of veterans who struggle with health issues and PTSD and finding a path forward after they return. [15:57:31] We have to stop paying this price and use these resources to make our communities stronger and more whole and then reinvent, invest in diplomacy and our historic partnerships and alliances abroad. It was James Mattis who said that if you spend more on diplomats, you spend less on ammunition. And that is exactly where I would lead us. As president. [15:57:57] You look like you're more. Actually, I don't know your health care. [15:58:19] Medicare for all is a little bit confusing to some voters. Just because it's very different than Medicare for all. [15:58:27] Senator Sanders, thanks for the question. Lauren, I welcome you from California. [15:58:36] I'm for universal health care. We should have health care as a basic right of citizenship in this country. The main way I differ from Bernie and Elizabeth on this is I would not legislate away private insurance. I think that millions of Americans enjoy their plans and many through unions and enough negotiating away wages in order to have better health care benefits. So to me, it has to be for the government to provide insurance coverage to the public and then demonstrate that it is better than private plans over time to consumers. [15:59:10] But our current plan is not working. Our current health care system is not working because it's not designed to make us stronger and healthier. We're spending three point six trillion dollars on our health care twice as much as other countries or worse results. And the system is not designed to make us stronger as designed to make money for the drug companies that are most companies. The private insurance companies does a great job at those things. Has anyone here ever gotten a letter from their private insurance company? Great news. Your rates are going to be lower this year. [15:59:42] No American has ever gotten that letter because their business model is just to ratchet up prices every single year. And it's reached such an extreme that it's breaking our backs. It's the number one cause of bankruptcy on the economic front. It keeps us from changing jobs. Certainly makes it ten times harder to start a business because we don't have health care. How are you going to ever go off on your own? So this is what we need to change. [16:00:03] We need to get our health care off of the backs of families and then free us up to do the kind of work that we want to do. And I'm the numbers guy. Anyone who talks about like, how are you gonna pay for this? Doesn't know what they're talking about because we're already paid for it. We're paying for it through the nose. Higher prices, every job, the temp job, because no one wants to give you benefits. [16:00:24] There are so many prices baked into the current way we do health care that we can't help but save money as long as we get in there and have the government fighting for lower costs and higher access on the prescription drug front, too. [16:00:38] This is one of the things that voters talk to me all the time, like why the heck are prescription drugs so expensive? Why are we paying two, three, four times as much for our drugs as citizens of other countries for the same drugs that we help subsidize? And the reason we are paying so much for it is that the lobbyists are so powerful that they have kept our government from negotiating for lower prices than the American people. [16:01:00] We all do that. So I've got a five part plan to get the prescription drug prices down. Number one, of course, the government has to be able negotiate the lower prices that are have. Number two, companies cannot charge us more than they charge citizens of other countries. Very reasonable. [16:01:17] Number three, if they fail. Number two, we can forcibly license that drug. And number four, we'd have a public manufacturing facility where we can manufacture that drug. Number five, we're allowed to import drugs from other countries. You think this plan would bring prices down? This is the only way we can bring prices down because the drug companies only understand one language and that's dollars and cents. You can stand outside their buildings every day and say, do the right thing and it wouldn't matter. [16:01:42] They're going to get paid tens of millions of dollars to gouge us. And I know they're gouging us because I had a friend who's a financial genius look through the numbers of these companies and their businesses. And she said she has never seen profiteering and price gouging at this level in her life. And it's so unsustainable that she's now going to bet against those companies and support my campaign for president to try and make it right. [16:02:08] Sorry. According to your wiki page, your parents met at Berkeley. Yeah, right. And they're both from Taiwan. I would think that that would give you a unique perspective. Growing up as an Asian-American in terms of looking at the whole American promise. [16:02:23] Could you talk about that? I've never got that question. Well, I quite love it. [16:02:29] My parents this has guided students at UC Berkeley in the 60s. My father went out to get his beauty and physics when I was a kid. I thought that everyone's dad had a beauty. [16:02:38] But what's your dad's beauty? And it was like, who was BHP? Was it? [16:02:48] Tony. So I grew up one of the lone Asian kids in my upstate New York town. And this was the 80s. So there were only three TV networks and we had the fourth box. So there was like a bit of a like an American culture that I always wanted to join. And whenever there was an Asian-American on TV, I would jump up and down and run and get my family. I'd be like, look, look, you're like somebody who's on TV. And it was and it was always Connie Chung. [16:03:21] And my parents got kind of tired of getting dragged on TV. [16:03:28] So I love this country because it's given so much to my family and me and my my parents immigrated here to create a better future for me and my brother and I totally worked. I mean, I'm running for president. So there's that. But my brother is a professor. You know, like I now have a niece and two beautiful boys. [16:03:50] And I feel like my family also gave as good as it got to this country and here's what I mean. So my father ended up generating 69 U.S. patents for G.E. and IBM over his career. And when I was old enough to know what a patent was, I went to my dad. I was maybe like 13 or 14. I was like, how much do you get paid when you get there? I was like, waiting till I think about it, he said. I get paid about two hundred dollars. And I'm like, it doesn't seem like very much. [16:04:15] And he said, I also get the salaries I can feed, housing, clothe you and your brother. And I said, Oh, I understand the deal now, but I say this because I feel like that was a good deal for the country because my dad generated 69 U.S. patents for two great American companies over his career. And it was a great deal for my family. Everyone, what? So this is the American dream in action. And we have to let people know that this is still the place you want to come. [16:04:43] If you want to start a life, have a family, start a business. Do all these things that keep our country dynamic and competitive and we lose that, then we're going to really lose the edge. [16:04:54] That has helped fuel this country over the last number of decades. And as your president, it will be my pleasure to make the case to the rest of the world that this is still the place to be to live the American dream, and that if you come here, your son or daughter could wind up being president of the United States. [16:05:18] You're trying to ask a question for a while now. Oh, my kids. Yeah, sorry. [16:05:22] I was going to ask a question about that. So you had to tell it. [16:05:28] Thank you. Were looking for though. I got some questions over here. [16:05:31] This so cool that I got some numbers for you. We import nearly 90 percent of the food we eat here in Ireland. We export nearly ninety nine percent of what we grow. Our farms are getting bigger. And land prices over the last 25 years and a whole generation of people on the farm, a lot of them want to grow healthy food in their communities. [16:05:55] And they I have a prayer, the landscape. Aside from your dividend, what would you do to help rebuild rural economies and help these young entrepreneurs get out there? There's a tremendous question. [16:06:08] I've heard it here in Iowa, where the farms have got consolidated into these huge corporations and then the huge corporations have these cost advantages that make it very difficult for family farms to compete. And then if the family farm wants to pass it on to the next generation, then that creates a whole host of problems. So what we need to do is try and level the playing field so that the individual family farm has a fighting chance. [16:06:33] So I would put tax incentives in place that help balance the prices so that if you're a smaller farm, you actually can compete in some real way against the big guys that if they have these low costs, the cost advantages that we have to try and balance that out for you all, because to me, having consolidation in our agricultural production is not a positive thing for the US in my opinion. Small family farms need to be part of the process moving forward because a lot of that food. [16:07:05] You'll have different types of food being grown, much more sustainable practices and at least some cases. And ideally it can be healthier organic food that doesn't have the same processes that some of the biggest producers are using right now. But I'm a huge fan of what's happening in some of the more artisanal food communities. We need to make that more realistic, because right now the market is all for the big guys. [16:07:33] And it's not just agriculture. We could pretty much say that same story in just about any industry where like this, the big guys are just dominating everything. This is one reason. And so these are. I'm an entrepreneur. And one of the things I'm most passionate about is that people aren't able to start businesses or farms any more than a couple of generations ago. You might have started a business. But now we talk about how the Internet is enabling entrepreneurship. [16:07:57] It's not like two generations ago you might have opened a flower shop or a hardware store or a local toy store. But now none of those things make sense because they haven't done. They're just hovering over them being like, hey, you wanna sell something, others undersell you immediately. [16:08:12] And so we have to create a real pathway for people to be able to start businesses and farms and do the kind of work that they want to do. And it's not going to happen on its own because the market is becoming more and more extreme and winner take all. And this is driving our culture and this is driving our politics. This is driving a lot of our biggest problems right now. [16:08:35] Miss your daddy? [16:08:41] Sure. So the way we get the money from the Amazons and the Facebook and the Googles of the world is you have to look around at the rest of the world. A lot of the other countries have looked at the same pattern and said, how do we make sure that we don't have our biggest companies paying zero back into the economy? That's what they did, is they set up something called a value added tax, which is like a tool at the point of sale that the company can't avoid. And one of the things I love about a value added tax is you can branch it out on things that you want to target. [16:09:08] Let's call it artificial intelligence yachts and luxury watches and then you get ratcheted down or you exempt the things that everyday people consume. Let's call it diapers and milk and toilet paper. [16:09:24] And so then you can target things that, you know, are being consumed by the people who have the most or the companies that have the most. Right now, our biggest companies are playing games with our income tax system. I put it use a couple of examples just for fun. So I just commented that Jeff Bezos is worth 115 billion dollars, which he is. [16:09:45] If I wrote our guide to the income tax up to 75 80 percent, how much of his hundred fifteen billion dollars when I get next year zero is I'm not dumb enough to pay himself ten billion dollars a year. He just pays himself, you know, let's call it 10 million a year. That he has all these billions like sitting around in Amazon Holdings. So if you have this value added tax, you get the money from his trillion dollar tech company while it's coming in. [16:10:12] And then when he takes a billion dollars out of his wealth every year to buy rocket ships to Mars, which is what he does, by the way, you know, you could have a big value added tax on rocket ships to waters and then you take that money, put it in our hands, make us stronger, healthier and more excited about the future. That is the plan. There was a joke. [16:10:37] Willie Sutton, the bank robber, told you said like, why did I rob the banks? Because that's where the money is. We have to go to where the money is going. The money is not staying here in your community is. It's wrong. We have to go get it. Return it to you and everyone will win. [16:11:02] As questions over there, I feel like I don't know, he was there smiling at me. Go ahead. [16:11:13] These are just regular citizens. To happy we're having we're sitting here. We're happy there. [16:11:34] How many of you are concerned about climate change? Yes. You don't have your hand up. I don't know what to tell you. [16:11:43] The biggest frustration I have is when politicians talk about climate change, something in the future we must prevent. Climate change is already here. Climate change has been with us for years. The last four years have been the warmest year in recorded history. You all experienced historic floods that were fueled by climate change. How many of you saw the images from the wildfire in Australia right now? Does that look normal to you or others like a scene right out there the day after tomorrow? One of those science fiction writers we know you like you think about how much carbon is in that plume of smoke. [16:12:19] That's like the biggest exhaust pipe we've ever seen at a Mother Nature. So climate change is here with us right now. And instead of pretending we're going to prevent it, we have to start investing hundreds of billions of dollars to make our communities stronger and more resilient and safer right now. It will save us money anyway, because it's cheaper to build a more resilient infrastructure than it is to clean up after the disaster. And this is one thing I cannot believe Trump got right. I thought at least you would build bridges and roads and infrastructure just so he could put his name out there. [16:12:53] I was willing to accept a Trump highway just to have the highway or the bridge or the levee or the seawall or whatever it was. [16:13:02] But he just doesn't want to do. So we have to start making these investments immediately and not the communities on your own, because like you said, it's the poorest among us who are going to get hurt the most. We do need to move towards renewable sources of energy, wind and solar, and then subsidize that not just here, but in other parts of the world. But realistically, this country is only 15 percent of carbon emissions. So even if we were to go to zero tomorrow, the world would continue to warm. [16:13:31] So we have to stop pretending that we can prevent it and start acknowledging that we're on the curve right now to help make our communities stronger, safer, knowing it would create hundreds of thousands of new jobs to invest in our communities. And we should do so immediately. [16:13:51] I think it's so every time. I think that's right. So we're going to do some soul. Let's make history together in four short weeks. Thank you all so much.

A HIGH SPEED CHASE IN PURSUIT OF A BAK ROBBERY SUSPECT LEADS TO MONEY ALL OVER THE PLACE.

1959 UNIVERSAL NEWSREEL 10

Stations Please Note: This package contains third party material. Unless otherwise noted, this material may only be used within this package and within ten days of its initial delivery or such shorter time as designated by CNN.\n\nNOTE: We send our packages with discrete, separate audio. Our reporter's track can be removed by deleting the audio on channel one.\n\nAFFILIATE MARKET NOTES: Chris Hemsworth is from Melbourne, Victoria, Australia. Hulk Hogan (Terry Bollea) was born in Augusta, Georgia. Kevin Costner was born in Lynwood, California. Woody Harrelson was born in Midland, Texas. "The Highwaymen" was filmed in New Orleans and Shreveport, Louisiana.\n\n --SUPERS--\n\n:00-:10\n"Thor: Ragnarok"\nFrom Marvel Studios\n\n:10-:17\nCNN\n\n:17-:31\n"The Favourite"\nCourtesy Fox Searchlight Pictures\n\n:31-:34\n"Crazy Rich Asians"\nFrom Warner Bros. Pictures\n\n:34-:38\n"Black Panther"\nFrom Marvel Studios\n\n:38-1:00\n"The Highwaymen"\nCourtesy Netflix\n\n --LEAD IN--\n\nTHE OSCARS ARE COMING UP SUNDAY, BUT THERE'S PLENTY OF OTHER ENTERTAINMENT NEWS TO REPORT! DAVID DANIEL HAS OUR ROUNDUP -- HERE'S THE HOLLYWOOD MINUTE.\n\n --REPORTER PKG-AS FOLLOWS--\n\n"I lost my hammer -- like, yesterday, so that's pretty fresh."\n\nCHRIS HEMSWORTH PLAYS "THOR" IN THE MARVEL MOVIES, BUT NOW HE'S SET TO PLAY "HULK" -- HULK HOGAN! THE AUSTRALIAN ACTOR HAS BEEN CAST AS THE AMERICAN WRESTLING LEGEND IN A BIO-PIC. THE FILM REPORTEDLY WILL FOCUS ON HOGAN'S RISE TO STARDOM.\n\n"I apologize for my appearance."\n\nDAYS BEFORE THE OSCARS, OTHER FILM AWARDS ARE STILL BEING GIVEN OUT! THE 21ST ANNUAL COSTUME DESIGNERS GUILD AWARDS HAVE HONORED "THE FAVOURITE" FOR EXCELLENCE IN PERIOD FILM, "CRAZY RICH ASIANS" FOR EXCELLENCE IN CONTEMPORARY FILM, AND "BLACK PANTHER" FOR EXCELLENCE IN SCI-FI-FANTASY FILM. \n\n"What do you plan to do about Bonnie and Clyde?"\n"We will capture them. Write that down, and underline it twice."\n\nHERE'S YOUR FIRST LOOK AT "THE HIGHWAYMEN," STARRING KEVIN COSTNER AND WOODY HARRELSON AS THE TEXAS RANGERS WHO VOWED TO BRING DOWN INFAMOUS BANK ROBBERS BONNIE AND CLYDE. KATHY BATES CO-STARS IN THE FACT-BASED FILM, WHICH HITS NETFLIX MARCH 29TH. IN HOLLYWOOD, I'M DAVID DANIEL.\n\n -----END-----CNN.SCRIPT-----\n\n --KEYWORD TAGS--\n ENTERTAINMENT SHOWBIZ HOLLYWOOD MOVIES AWARDS SNEAK PEEK MARVEL WRESTLING HEMSWORTH HULK HOGAN COSTUMES COSTNER HARRELSON\n\n

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 / CAM 2 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]

NOW YOU MIGHT NOT THINK A BANK ROBBERY IN RANCHO CORDOVA CALIFORNIA IS A BIG DEAL... NOBODY WAS HURT AND THE ROBBER WAS CAPTURED.IT TURNS OUT THE U-HAUL TRUCK HE USED AS A GET A WAY CAR DIDN'T FOOL POLICE LIKE THE ROBBER THOUGHT IT WOULD.OFFICERS SPOTTED THE CAR U-HAUL AND CHASED HIM AT SPEEDS OF UP TO 65 FIVE MILES AN HOUR THROUGH TWO NORTHERN CALIFORNIA COUNTIES.POLICE FINALLY GOT HIM TO PULL OVER AFTER SETTING UP A NAIL STRIP TO BLOW OUT HIS TIRES.THE SUSPECT SMOKED SOME CIGARETTES FOR A WHILE BEFORE DECIDING TO GIVE HIMSELF UP.

<p><b>--SUPERS</b>--</p>\n<p>Monday</p>\n<p>Boston</p>\n<p></p>\n<p>Ashley Randele </p>\n<p>Father Admitted on Deathbed He was a Fugitive </p>\n<p></p>\n<p><b>On his deathbed, her father told her a secret: He was a fugitive and had robbed a bank in Ohio</b></p>\n<p></p>\n<p><b>--LEAD IN</b>--</p>\n<p>A MASSACHUSETTS WOMAN IS SHARING THE INCREDIBLE AND DISTURBING STORY OF HER LATE FATHER'S SECRET PAST.</p>\n<p>ASHLEY RANDELE'S FATHER, WHOM SHE HAD ALWAYS KNOWN AS Thomas Randele, WAS A FUGITIVE BANK ROBER WHO HAD SPENT MORE THAN HALF A CENTURY ON THE RUN.</p>\n<p>RANDELE'S REAL NAME WAS Theodore Conrad.</p>\n<p>IN 19-69, when he was 20 years old, he’d robbed an Ohio bank of 215-THOUSAND DOLLARS -- the equivalent of ONE-POINT-SEVEN million today AND <u>one of the largest heists in Ohio history</u>.</p>\n<p>Theodore Conrad ESCAPED AND BUILT A NEW LIFE IN Massachusetts AS Thomas Randele - A car salesman and a country club golf pro who adored his wife and only child.</p>\n<p></p>\n<p>CONRAD ADMITTED IT ALL TO HIS DAUGHTER AS HE LAY ON HIS DEATHBEAD DYING FROM LUNG CANCER.</p>\n<p></p>\n<p><pi>But back in Cleveland, he was Ted Conrad, an elusive bank robber</pi>. <pi>He was barely out of his teens when he’d pulled off </pi>one of the largest heists in Ohio history <pi>— </pi>the equivalent of $1.7 million today<pi> — inspired by his favorite movie, “The Thomas Crown Affair.”</pi></p>\n<p></p>\n<p><pi>Conrad’s boyish face was plastered on wanted posters and broadcast on episodes of “America’s Most Wanted” and “Unsolved Mysteries.”</pi> And a pair of father-and-son US marshals in Cleveland had made it their life’s mission to capture him.</p>\n<p></p>\n<p>“I told him, ‘I looked you up. And there are a million articles about you. And they’re also still looking for you, in case you didn’t know. And we have to tell Mom,’” said Ashley Randele, 38, who’s co-host of a new podcast on who her father was and what drove him to rob a bank.</p>\n<p></p>\n<p>A day or so after her father’s shocking revelation, Ashley told CNN she pulled her mother Kathy aside and told her.</p>\n<p></p>\n<p>“She was reading through the articles online, and she just kept saying, ‘Oh my God! Oh, my God!,’ for like 10 minutes,” Ashley Randele said. (Kathy Randele declined to comment to CNN.) “She’d known him for the better part of 40 years, and to learn this massive secret — I can’t imagine how traumatizing that was for her.”</p>\n<p></p>\n<p></p>\n<p><b>Her dad was obsessed with a Steve McQueen movie about a bank heist</b></p>\n<p></p>\n<p>Conrad’s disappearance puzzled investigators for five decades.</p>\n<p></p>\n<p>Some compared it to the 1971 case of hijacker D.B. Cooper, who parachuted out of a plane with $200,000 in cash and vanished over the vast wilderness of the Pacific Northwest, never to be seen again.</p>\n<p></p>\n<p>Conrad’s heist also sounded like a story from a movie. On July 11, 1969<pi>, he showed up for work as a teller at Society National Bank in Cleveland. It was a Friday and his birthday weekend, so he bought a bottle of whiskey and a pack of cigarettes during his break. At the end of the day, he went into the vault, quietly stuffed $215,000 into a paper bag and walked away from his old life.</pi></p>\n<p></p>\n<p>It wasn’t until Monday that the bank found out about the robbery, giving him a two-day head start.</p>\n<p></p>\n<p>Days later Conrad sent two letters to his then-girlfriend — from Washington, D.C. and Los Angeles — saying how much he loved and missed her. Then the case went cold. Authorities could find no traces of him.</p>\n<p></p>\n<p>The week after his disappearance, Apollo 11 landed the first humans on the moon. The historic mission hogged the headlines, and the press soon forgot about the mysterious bank robber in Cleveland. Months turned to years and then decades.</p>\n<p></p>\n<p>But investigators didn’t give up. They got tips on alleged sightings in various states, including California, Hawaii, Texas and Oregon. The leads all turned out to be false. Frustrated, federal officials spotlighted his case on true-crime shows such as “America’s Most Wanted.”</p>\n<p></p>\n<p>Meanwhile, the former Ted Conrad was building a new life as Randele in Massachusetts. In an ironic twist, he chose to settle in a suburb north of Boston, the city where his favorite movie was set and filmed.</p>\n<p></p>\n<p><pi>Authorities say Conrad was obsessed with “The Thomas Crown Affair,” the 1968 Steve McQueen film about a dashing millionaire businessman who robs a Boston bank for fun. </pi>(The movie was remade in the 1990s with Pierce Brosnan.) <pi>His friends in Ohio told investigators that he’d watched it several times before the robbery.</pi></p>\n<p></p>\n<p>He’d even bragged about how he got a job as a vault teller without providing his fingerprints, and how easy it would be to steal money from the bank, investigators said.</p>\n<p></p>\n<p>Ashley Randele believes her dad loved the movie so much that he’d picked his new first name, Thomas, as a tribute to its main character.</p>\n<p></p>\n<p>She said her dad didn’t exactly live as if he was in hiding. He drove her to school daily and picked her up on his days off. Sometimes, she said, he chaperoned her school trips.</p>\n<p></p>\n<p>But little things started to make sense after his confession, she said. Her father, clean-shaven as a young man, always wore a beard and rarely took off his baseball hat in public.</p>\n<p></p>\n<p>And he never left the country. Ashley said she and her mom once begged him to go with them to France, but he refused, saying he was not a fan of overseas travel.</p>\n<p></p>\n<p>“He always said there were so many interesting things to see in the United States. He didn’t need to leave the country,” Randele said.</p>\n<p></p>\n<p>She realizes now that his false identity meant he had no passport.</p>\n<p></p>\n<p></p>\n<p><b>She began searching for answers about her father’s shadowy past</b></p>\n<p></p>\n<p>His confession turned the Randele family upside down.</p>\n<p></p>\n<p><pi>Ashley said she and her mother knew her dad likely only had a few months left to live, so they decided not to share his secret with authorities</pi>. The last thing she wanted, she said, was to see her ailing, 71-year-old father hauled off to prison.</p>\n<p></p>\n<p>“The first thing Mom and I said to him was, ‘We love you so much. And finding this out does not change that we love you. But we do need to talk about it,” she said.</p>\n<p></p>\n<p>“I wasn’t able to be angry with him at the time, because that just felt sort of unfair. I was trying to get as much information out of him as possible, just because you want to know … I was able to be angry after he passed.”</p>\n<p></p>\n<p>Ashley Randele said she once told her father she’d keep her last name after she marries so that it wouldn’t die with him.</p>\n<p></p>\n<p>But after his confession, she wondered: Was it even her name anymore?</p>\n<p></p>\n<p>“That was hard, that my name isn’t mine. It’s on my birth certificate. It is a real name. But that his name was fake,” she said. “For a moment, I did think about changing my name.”</p>\n<p></p>\n<p><pi>Her father died in May 2021, two months after his confession.</pi></p>\n<p></p>\n<p><u>In her new podcast premiering Monday titled, “Smoke Screen: My Fugitive Dad,” Randele discusses her struggle caring for a dying father while grappling with confusion over unwittingly living a life of lies.</u></p>\n<p></p>\n<p>The suburban Boston woman, who works in retail and customer service, said she believed there was more to her dad’s brazen robbery beyond his love for a movie. So she decided to start searching for answers.</p>\n<p></p>\n<p>She eventually tracked down some of her father’s old friends and girlfriends, who shared stories about him and helped her fill in some gaps from his younger years.</p>\n<p></p>\n<p>Working on the podcast, she said, has unearthed some answers, allowed her to grieve and helped her begin to reconcile the stealthy bank robber in Ohio with the doting husband and father she knew in Massachusetts. For example, her dad’s friends told her he was fluent in French, which surprised her because she had struggled with French homework as a kid and he didn’t offer to help.</p>\n<p></p>\n<p>“I wanted the world to know who my dad was. And I also wanted to learn about Ted Conrad, the bank robber, and Tom Randele, my dad,” she told CNN. “I wanted to know — where do they overlap?”</p>\n<p></p>\n<p></p>\n<p><b>After her dad’s death, US Marshals showed up at her door</b></p>\n<p>Ashley Randele said she and her mother made a pact to spend one year grieving the man they’d lost before sharing his secret with investigators.</p>\n<p></p>\n<p><pi>She said they agreed to notify police in June 2022. But federal authorities beat them to it.</pi></p>\n<p></p>\n<p><pi>In November 2021, US Marshals showed up unannounced at the Randeles’ door in Lynnfield. The marshals reassured her and her mother that they would not face charges, Ashley Randele said.</pi></p>\n<p></p>\n<p><pi>Turns out that after Randele died of lung cancer in May, investigators got their first big break in the case. </pi><u>Someone had sent his obituary to a crime reporter in Ohio with a note saying the deceased man was likely Conrad, Ashley Randele said.</u></p>\n<p></p>\n<p>The obituary listed her father’s date of birth as July 10, 1947 — the same birthday as Conrad’s but two years older, US Marshal Pete Elliott told CNN. The obit also listed Conrad’s parents’ names, but with Randele added to the end, Elliott said.</p>\n<p></p>\n<p>Investigators began digging and unearthed a 2014 bankruptcy filing by Randele in a Boston federal court. The handwriting matched that on a 1967 college application Conrad had filled out, Elliott said.</p>\n<p></p>\n<p>Investigators then traveled from Cleveland to Lynnfield to confirm Conrad’s identity. Among them was Elliott, whose father, John Elliott, had spent much of his law enforcement career searching for Conrad before his death in 2020.</p>\n<p></p>\n<p>The younger Elliott, a US marshal in Ohio like his father, finally had an answer to the questions that had eluded his dad for decades. In the podcast, Elliott describes the case as “an elegantly simple but infinitely complex” mystery.</p>\n<p></p>\n<p>Elliott said his father wasted years chasing down false leads around the country and missing his son’s baseball games, and was angry that Conrad had stolen money it would have taken him many years to earn as a federal officer.</p>\n<p></p>\n<p>“Some people portrayed Conrad as a Robin Hood. And my dad called him nothing but a thief,” he said.</p>\n<p></p>\n<p>But that day in November 2021 brought a bit of closure. When Elliott knocked on their door and introduced himself as a federal marshal from Ohio, Ashley Randele said the expression on her face probably told investigators everything they needed to know.</p>\n<p></p>\n<p>“I think you know why we’re here,” she said Elliott told her.</p>\n<p></p>\n<p></p>\n<p></p>\n<p></p>\n<p><b>--SOT</b>--</p>\n<p>"The next day I sat down with him alone and really pushed him on finding out his name. If his name wasn't Tomm Randall, I deserved to know my father's name and that I deserved to know my name. And he finally said that he would tell me as long as I promised not to look into it. And that's when he told me that his name was Ted Conrad. I obviously did not listen to him and I did look into it. And that night at about 230 in the morning alone in my childhood bedroom, I looked up Ted Conrad and then put in the word missing figuring it's been 50 years. Somebody might be looking for him. And that's when I saw the headline like Vault Teller Heist. And I was absolutely floored. Like could not have been more shocked. I think I said out loud just to the room. Oh my gosh. My life is a lifetime movie."</p>\n<p><b>--TAG</b>--</p>\n<p></p>\n<p><b>-----END-----CNN.SCRIPT-----</b></p>\n<p></p>\n<p><b>--KEYWORD TAGS--</b></p>\n<p></p>

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 / CAM 1 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]

APPARENT BANK ROBBERS LEAD POLICE ON HIGH SPEED CHASE BEFORE SMASHING INTO A PICKUP AT AN INTERSECTION. SUSPECT THEN LEADS POLICE ON SHORT FOOT CHASE.

INTERESTING STORY ABOUT A BANK ROBBERY IN SOUTH LAKE TAHOE...SUSPECT ESCAPED IN A BLACK PORCHE...WHICH HE/SHE PROMPTLY DROVE INTO A RIVER AFTER HIGH-SPEED PURSUIT. KXTV HAS A CHOPPER UP COVERING THE CHASE. THE FOLLOWING INFO IS FROM WIRE REPORTS FOR YOUR SCRIPTS.. A SOUTH LAKE TAHOE BANK ROBBER ENDED UP IN A RIVER TODAY..FOLLOWING A SHORT CHASE BY THE CALIFORNIA HIGHWAY PATROL. THE HEIST OCCURRED JUST AFTER OPENING TIME AT THE MAIN BANK OF AMERICA BRANCH IN SOUTH LAKE TAHOE, CALIFORNIA. A C-H-P OFFICER SPOTTED THE GETAWAY CAR...A BLACK PORCHE...HEADING DOWN US-50. THE OFFICER GAVE CHASE...AND SAY THE CROOK LOST CONTROL OF THE CAR...ENDING UP IN THE RIVER...AND LIKELY...UP THE CREEK. THE UN-NAMED SUSPECT WAS NOT HURT...INVESTIGATORS SAY THE PORCHE WAS STOLEN IN OAKLAND.

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]

911 Calls from the Bank and Police Radio bites during shootout.Tennesse (Nashville, TN) June 21, 2002 FridayHEADLINE: Video shows how car saved officer  BRENTWOOD - It was either "a fluke or divine intervention" that Officer Stephanie Bellis had left her squad car in gear after bailing out during a shootout with a bank robber on May 6, Brentwood Police Chief Ricky Watson said yesterday. Using the rolling car as a shield from gunfire may have saved her life. Video footage taken by a camera in her car was released yesterday, showing Bellis backing across Old Hickory Boulevard while crouching to avoid fire from bank robbery suspect Gary Brown. She can be seen aiming and shooting back as her squad car rolled slowly toward her, then crashed into landscaping around a gas station. "Had she put the car in park, there's not much doubt in my mind that she would have been killed," Watson said. "She would have been stuck standing in front of a stopped car." That could have made Bellis an easy target for Brown, who was firing at her with a .223-caliber semi-automatic assault rifle. Instead, Bellis' car became a rolling obstacle, shielding her from Brown's shots and creating distance between them. With the release of video footage from patrol cars showing Bellis and Sgt. Tommy Walsh exchanging gunfire with Brown at the intersection of Franklin Road and Old Hickory Boulevard, the Brentwood Police Department declared its investigation into the shootout officially closed. "It is absolutely clear that Officer Stephanie Bellis, Sergeant Tommy Walsh, Officer James Campbell, Detective Richard Hickey, Lieutenant Tommy Campsey and Lieutenant Steve Walling acted well within the law and were completely justified in using the deadly force that resulted in the death of Gary Brown," Ron Davis, district attorney general for the 21st Judicial District, said at a news conference yesterday. "Not only were they justified, but are, in fact, heroes." Campbell, Hickey, Campsey and Walling fired the shots that led to Brown's death. The California man, who had robbed an AmSouth bank on Eighth Avenue North in north Nashville before robbing the Bank of America at 133 Franklin Road in Brentwood, was shot seven times. Three were fatal wounds, Watson said. "We'll never know who fired the fatal rounds," Watson said. Davis said it is his policy to request an investigation by the Tennessee Bureau of Investigation when police are involved in shootings, especially ones resulting in a death. Bellis, Walsh and the four other officers involved in the incident were present at the news conference. Walsh still is recovering from multiple gunshot wounds. After asking for Walsh's permission, Watson described a conversation that Brown and Walsh had moments before the bank robber was gunned down. Watson said Brown approached Walsh, who had been shot in the leg and fallen back into his squad car. Brown ordered Walsh to get out of the car, but Walsh told him that he was wounded and could not get up. "Brown then said, 'Where's your weapon?' and Walsh told him he didn't know," said Watson. "It had been dropped on the floorboard. Walsh then said, 'Please don't kill me.' " Brown told Walsh he was not going to kill him, but then pointed his rifle at Walsh and leaned into the car. "In my opinion he was seconds away from executing Sgt. Walsh," Watson said. "Had the actions of the other officers been delayed for any length of time ... there would have been a different result." Walsh was shot in the leg and foot. The two rounds that hit his left foot and the single round that hit his right foot but did not penetrate his boot are now believed to have come from the guns of other Brentwood officers who were aiming for Brown. Officers involved in the shooting and several officials from other departments watched with somber faces as the footage captured from in-car cameras in Campbell's and Bellis' patrol vehicles were played on a big screen. Watson narrated the footage, which did not contain audio. In all, 56 rounds - 21 from the suspect, 35 from police officers - were fired. Brown was killed just six minutes after the 911 call came in. Brentwood police have been contacted by a company called In the Line of Duty, which produces training videos for police agencies around the world. The firm wants to use footage of the shootout to produce a training video. WTVF PHOTOS / FROM VIDEO The video camera in Brentwood Officer Stephanie Bellis' patrol car records her movements May 6 as she uses the slowly rolling vehicle as a shield while trying to get a shot at bank robbery suspect Gary Brown. Brentwood Police Chief Ricky Watson said Bellis would have been an easy target for Brown if she had put her car in park, leaving it stationary, before getting out to engage the gunman.

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 / CAM 3 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]

POLICE PURSUE A BANK ROBBER AND AN ACCOMPLICE IN A WILD CAR CHASE, WHICH ENDS WITH A FOOT PURSUIT AND CAPTURE.

Dispatcher tapes of talks with officers as the shootout begins at North Hollywood Bank.

BRENTWOOD - It was either "a fluke or divine intervention" that Officer Stephanie Bellis had left her squad car in gear after bailing out during a shootout with a bank robber on May 6, Brentwood Police Chief Ricky Watson said yesterday. Using the rolling car as a shield from gunfire may have saved her life. Video footage taken by a camera in her car was released yesterday, showing Bellis backing across Old Hickory Boulevard while crouching to avoid fire from bank robbery suspect Gary Brown. She can be seen aiming and shooting back as her squad car rolled slowly toward her, then crashed into landscaping around a gas station. "Had she put the car in park, there's not much doubt in my mind that she would have been killed," Watson said. "She would have been stuck standing in front of a stopped car." That could have made Bellis an easy target for Brown, who was firing at her with a .223-caliber semi-automatic assault rifle. Instead, Bellis' car became a rolling obstacle, shielding her from Brown's shots and creating distance between them. With the release of video footage from patrol cars showing Bellis and Sgt. Tommy Walsh exchanging gunfire with Brown at the intersection of Franklin Road and Old Hickory Boulevard, the Brentwood Police Department declared its investigation into the shootout officially closed. "It is absolutely clear that Officer Stephanie Bellis, Sergeant Tommy Walsh, Officer James Campbell, Detective Richard Hickey, Lieutenant Tommy Campsey and Lieutenant Steve Walling acted well within the law and were completely justified in using the deadly force that resulted in the death of Gary Brown," Ron Davis, district attorney general for the 21st Judicial District, said at a news conference yesterday. "Not only were they justified, but are, in fact, heroes." Campbell, Hickey, Campsey and Walling fired the shots that led to Brown's death. The California man, who had robbed an AmSouth bank on Eighth Avenue North in north Nashville before robbing the Bank of America at 133 Franklin Road in Brentwood, was shot seven times. Three were fatal wounds, Watson said. "We'll never know who fired the fatal rounds," Watson said. Davis said it is his policy to request an investigation by the Tennessee Bureau of Investigation when police are involved in shootings, especially ones resulting in a death. Bellis, Walsh and the four other officers involved in the incident were present at the news conference. Walsh still is recovering from multiple gunshot wounds. After asking for Walsh's permission, Watson described a conversation that Brown and Walsh had moments before the bank robber was gunned down. Watson said Brown approached Walsh, who had been shot in the leg and fallen back into his squad car. Brown ordered Walsh to get out of the car, but Walsh told him that he was wounded and could not get up. "Brown then said, 'Where's your weapon?' and Walsh told him he didn't know," said Watson. "It had been dropped on the floorboard. Walsh then said, 'Please don't kill me.' " Brown told Walsh he was not going to kill him, but then pointed his rifle at Walsh and leaned into the car. "In my opinion he was seconds away from executing Sgt. Walsh," Watson said. "Had the actions of the other officers been delayed for any length of time ... there would have been a different result." Walsh was shot in the leg and foot. The two rounds that hit his left foot and the single round that hit his right foot but did not penetrate his boot are now believed to have come from the guns of other Brentwood officers who were aiming for Brown. Officers involved in the shooting and several officials from other departments watched with somber faces as the footage captured from in-car cameras in Campbell's and Bellis' patrol vehicles were played on a big screen. Watson narrated the footage, which did not contain audio. In all, 56 rounds - 21 from the suspect, 35 from police officers - were fired. Brown was killed just six minutes after the 911 call came in. Brentwood police have been contacted by a company called In the Line of Duty, which produces training videos for police agencies around the world. The firm wants to use footage of the shootout to produce a training video. The video camera in Brentwood Officer Stephanie Bellis' patrol car records her movements May 6 as she uses the slowly rolling vehicle as a shield while trying to get a shot at bank robbery suspect Gary Brown. Brentwood Police Chief Ricky Watson said Bellis would have been an easy target for Brown if she had put her car in park, leaving it stationary, before getting out to engage the gunman.

During an answer to a Bank Robbery Report Officer Stephanie Bellis Pulls up right next to the bank robber at a traffic light and the suspect opens up on her. After being struck in the arm she bails out of the car. BRENTWOOD - It was either "a fluke or divine intervention" that Officer Stephanie Bellis had left her squad car in gear after bailing out during a shootout with a bank robber on May 6, Brentwood Police Chief Ricky Watson said yesterday. Using the rolling car as a shield from gunfire may have saved her life. Video footage taken by a camera in her car was released yesterday, showing Bellis backing across Old Hickory Boulevard while crouching to avoid fire from bank robbery suspect Gary Brown. She can be seen aiming and shooting back as her squad car rolled slowly toward her, then crashed into landscaping around a gas station. "Had she put the car in park, there's not much doubt in my mind that she would have been killed," Watson said. "She would have been stuck standing in front of a stopped car." That could have made Bellis an easy target for Brown, who was firing at her with a .223-caliber semi-automatic assault rifle. Instead, Bellis' car became a rolling obstacle, shielding her from Brown's shots and creating distance between them. With the release of video footage from patrol cars showing Bellis and Sgt. Tommy Walsh exchanging gunfire with Brown at the intersection of Franklin Road and Old Hickory Boulevard, the Brentwood Police Department declared its investigation into the shootout officially closed. "It is absolutely clear that Officer Stephanie Bellis, Sergeant Tommy Walsh, Officer James Campbell, Detective Richard Hickey, Lieutenant Tommy Campsey and Lieutenant Steve Walling acted well within the law and were completely justified in using the deadly force that resulted in the death of Gary Brown," Ron Davis, district attorney general for the 21st Judicial District, said at a news conference yesterday. "Not only were they justified, but are, in fact, heroes." Campbell, Hickey, Campsey and Walling fired the shots that led to Brown's death. The California man, who had robbed an AmSouth bank on Eighth Avenue North in north Nashville before robbing the Bank of America at 133 Franklin Road in Brentwood, was shot seven times. Three were fatal wounds, Watson said. "We'll never know who fired the fatal rounds," Watson said. Davis said it is his policy to request an investigation by the Tennessee Bureau of Investigation when police are involved in shootings, especially ones resulting in a death. Bellis, Walsh and the four other officers involved in the incident were present at the news conference. Walsh still is recovering from multiple gunshot wounds. After asking for Walsh's permission, Watson described a conversation that Brown and Walsh had moments before the bank robber was gunned down. Watson said Brown approached Walsh, who had been shot in the leg and fallen back into his squad car. Brown ordered Walsh to get out of the car, but Walsh told him that he was wounded and could not get up. "Brown then said, 'Where's your weapon?' and Walsh told him he didn't know," said Watson. "It had been dropped on the floorboard. Walsh then said, 'Please don't kill me.' " Brown told Walsh he was not going to kill him, but then pointed his rifle at Walsh and leaned into the car. "In my opinion he was seconds away from executing Sgt. Walsh," Watson said. "Had the actions of the other officers been delayed for any length of time ... there would have been a different result." Walsh was shot in the leg and foot. The two rounds that hit his left foot and the single round that hit his right foot but did not penetrate his boot are now believed to have come from the guns of other Brentwood officers who were aiming for Brown. Officers involved in the shooting and several officials from other departments watched with somber faces as the footage captured from in-car cameras in Campbell's and Bellis' patrol vehicles were played on a big screen. Watson narrated the footage, which did not contain audio. In all, 56 rounds - 21 from the suspect, 35 from police officers - were fired. Brown was killed just six minutes after the 911 call came in. Brentwood police have been contacted by a company called In the Line of Duty, which produces training videos for police agencies around the world. The firm wants to use footage of the shootout to produce a training video. The video camera in Brentwood Officer Stephanie Bellis' patrol car records her movements May 6 as she uses the slowly rolling vehicle as a shield while trying to get a shot at bank robbery suspect Gary Brown. Brentwood Police Chief Ricky Watson said Bellis would have been an easy target for Brown if she had put her car in park, leaving it stationary, before getting out to engage the gunman.