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Author’s note: this is part 16 in a series of educational posts I am going to write about State of Ohio and federal weapon and firearm laws. Part 1 can be found here. There is a list of the previous articles at the bottom (or side, depending on your device) of the page. This post does not offer legal advice. I am not a lawyer. I am a Certified Firearm Specialist through the International Firearm Specialist Academy and the State of Ohio certifies me to teach Ohio’s weapon laws in the Basic Police Academy. I’ve spent quite a bit of time studying federal law and Ohio’s laws in 30 years on the job. More than anything, this series of posts is an attempt to educate people on portions of the law and to show them where they can find the laws so that they can educate themselves further. Please consult with an attorney who specializes in firearms and weapons law if you have questions that require a legal opinion. If you are a law enforcement officer, check with your jurisdiction’s legal counsel for guidance. And remember, not all attorneys are created equal. And keep in mind that laws, interpretations of laws and definitions change. So what was current at the time I published this article may have changed over time.
Months ago I wrote this article about the criminal case State of Ohio v. Timothy Damien Bradley and promised to give an update when the Supreme Court of Ohio published their decision. Well, that happened a couple of weeks ago. And it wasn’t good for Mr. Bradley. A very brief recap of the State’s case against Mr. Bradley seems in order, but I’d suggest re-reading my original article and then coming back.
To recap – Mr. Bradley was charged with felonious assault and improperly discharging a firearm into a habitation. Those charges stemmed from an altercation Mr. Bradley had with a construction contractor he had a disagreement with. The contractor had been open carrying a pistol and left the house to take some tools to his truck. Mr. Bradley told the contractor not to come into the house again unless he took the pistol off. When the contractor returned, Mr. Bradley believed he was still carrying the pistol and may have been reaching for it. Fearing for his life, Mr. Bradley drew his own pistol and shot at the contractor multiple times, striking him at least once. At the time he was shot, the contractor was standing in the front door of Mr. Bradley’s residence. At least two of the rounds Mr. Bradley fired at the contractor ended up hitting two house across the street. After reviewing the case, the county prosecutor decided that the Castle Doctrine did not apply and secured an indictment against Mr. Bradley for felonious assault and two counts of improperly discharging a firearm into a habitation. The case proceeded to trial and the jury decided that Mr. Bradley was not guilty of the felonious assault, but was guilty of the two counts of improperly discharging a firearm into a habitation. He was sentenced to 6-9 years in prison.
Mr. Bradley appealed because he reasoned that if he was justified in shooting the contractor then he was justified in shooting the rounds that hit the houses across the street. In legal terms, he was “privileged” to fire those shots and his justified self-defense should have transferred to the other charges. A concept called “transferred self-defense”. The appellate court ruled in his favor, kind of, and completely threw out one of the two convictions for shooting into a habitation based on a lack of evidence. The other conviction was thrown out as well, but only because of technicalities in the jury instructions that constituted what is called “plain error”. A new trial was ordered to address the deficient jury instructions.
This time, the State of Ohio appealed to the Supreme Court of Ohio (SCO). It took the SCO about 10 months to publish their decision. Which brings us to this update. If you are like me and enjoy reading case law, then click here and you can read the entire thirteen page opinion. Otherwise, read on and I’ll condense things into a much shorter and easier read.
Before I go any further, let me mention a legal concept called “issue preservation”. If you’ve ever watched any sort of real or fictional TV show that deals with a trial then you’ve seen this in action – it’s when an attorney verbally objects during the hearing. For example, if a witness is testifying about what someone else told them the defendant said and not something the witness heard directly from the defendant, the defense attorney may say “objection, hearsay” and then the judge will either rule on the issue or call the attorneys up for a “side bar” so they can talk about it outside the hearing of the jury.
Having sat with Prosecutor as the State’s Witness more than once, I can tell you that those objections – whether they are made by prosecutors or defense attorneys – are very important for one very specific reason. If the issue is not objected to, it usually cannot be argued during an appeal. Which Mr. Bradley is finding out the hard way.
So why is this important to know? Well in this particular case, Mr. Bradley’s defense attorney did not object to the jury instructions (or lack of jury instructions) that were given to the jurors in this case. According to the record, the defense attorney agreed with the instructions. And then he tried to argue the jury instructions were deficient during the appeal. And that came back to bite him (and Mr. Bradley) in the behind. Because Ohio Criminal Rule 30 makes it clear that objections apply to jury instructions as well.
Because Mr. Bradley is not able to make new arguments about why the jury instructions were deficient, his only hope is that the SCO looks at everything and decides that the appeals court committed “plain error” when giving the jury instructions. From here we have to stop and have a quick discussion about the different types of “error”. Criminal Rule 52 defines two different errors that come up in criminal trials as “harmless error” and “plain error”.
Mistakes (errors) happen. Judges are not perfect. For a variety of reasons, some of those mistakes have zero impact on the outcome of a trial. Others may have a huge impact on the outcome. Mistakes that don’t impact the outcome of the trial are called “harmless error”. Errors that are considered “harmless” do not automatically require the appeals court or SCO to send the case back to the lower court to “fix” the error. “Plain” errors, on the other hand, are more serious in nature and affect the “substantial rights” of the defendant. Those types of errors can be (not have to be) sent back to the lower court so that they can be fixed. Sometimes that means a new trial, sometimes that means a new sentencing hearing, etc. it depends on what the plain error was. But a new trial or hearing is not guaranteed.
More importantly for this discussion is the fact that the reviewing court (in this case the Supreme Court) can deal with any plain errors that they find even if the error was not objected to during the trial. And this is what Mr. Bradley and his attorney were hoping the SCO was going to do.
Unfortunately for Mr. Bradley, that did not happen. The SCO looked at this case and applied the current law. Under the current law, the SCO decided that failing to give the jury instructions Mr. Bradley wanted was not an error.
But wait, there’s more. When deciding that an error is plain error, the reviewing court has to decide on whether or not fixing the error would have changed the outcome of the trial. In this case, the SCO decided the appellate court applied the wrong standard when it stated the outcome “may have” been different with different jury instructions. The SCO then went on to state that there was nothing to prove that the proposed jury instructions would have changed the outcome of the trial. Oof.
Now, the interesting part (at least for a case law nerd like me) of the SCO’s decision comes from dissenting opinion Of Justice Brunner – one of the most liberal judges on the SCO. Justice Brunner agreed with Mr. Bradley’s attorney and her dissent clearly states that if Mr. Bradley was acting in self-defense, then self-defense was indeed a privilege under the shooting into a habitation statute.
Unfortunately for Mr. Bradley, Justice Brunner was the only judge who felt this way.
So what does all of this really mean for the next person who accidentally hits a house with a stray round during a self-defense shooting? Well, maybe nothing. If you did not read the first article, go back and read it before you go on because this will make more sense if you do. Frankly, Mr. Bradley made some very poor decisions and put himself in one heck of a bad spot to begin with. And since the Grand Jury indicted him, it appears that the Grand Jury had some doubt about the credibility of his story.
Had the SCO adopted Justice Brunner’s opinion, this case would be much more significant for the next person who hits a house with a stray round during a self-defense shooting. But the SCO really just punted the issue of self-defense as a privilege to a charge of shooting into a habitation and decided the case on strict technicalities. It is very important to note what the majority opinion did not say. No where in the opinion did the majority say that self-defense was not or could not be a privilege for the purposes of the shooting into a habitation statute. Had they said that, then that would be a very bad omen for future self-defense cases. Fortunately, they said nothing close to that.
Unfortunately for Mr. Bradley, unless something else happens, it looks like he is headed back to prison. I have said it before and I will say it again, I was not impressed with Mr. Bradley’s attorney. I have mentioned this in other articles – pick your attorneys well. They are not created equal.
