Excerpt from US District Court,  CV 94-6-M-CCL


Petitioner’s own testimony at trial shows that his conduct was not merely negligent. Petitioner, a man of above–average intelligence, TR 1806:10-13, testified that after Officer Kimery stopped his car, Petitioner saw Officer Kimery walk up to his car, TR 1624:18, and Petitioner fired his .357 magnum revolver at Officer Kimery – at a distance of less than a car’s length. While denying  that he had any intent to harm Officer Kimery, the only reason Petitioner could muster to explain his conduct was to say he “just wanted to get out of there.”  TR 1606:22-23, 1607:13. Petitioner testified that he did not aim the gun directly at Officer Kimery, but Petitioner did acknowledge that he intended to shoot the gun,  TR 1612:20, and that he aimed the gun in Officer Kimery’s “general direction,”  TR 1634:19.  Petitioner’s own testimony makes clear that this shooting was no accident.

In addition, the State’s case against Petitioner convincingly showed that Petitioner had motivation to kill Officer Kimery in that Petitioner was driving a stolen vehicle, had a stolen gun in his possession, and was at that time on probation for a previous car theft. Additionally, just hours before Petitioner shot Officer Kimery, two witnesses heard Petitioner boast that he would use his gun to “blow away” a cop.  TR 467:1-2; 514:17-18.  The physical evidence indicated that Petitioner shot Officer Kimery by holding his gun outside the window of his car, TR 1278:23-25,  1279:1-2,  and firing it at Kimery at nearly point-blank range.  TR 1292:18-21. Numerous witnesses who observed Petitioner both before and after the shooting testified that Petitioner was functioning quite well and did not appear to be intoxicated.

          A review of the entire record leaves the Court with the definite conviction that Officer Kimery’s death was not caused by Petitioner’s negligence but was caused by Petitioner’s intention to commit serious bodily harm to Officer Kimery. Petitioner knew his gun contained live ammunition. Petitioner knew he was shooting at Kimery from a distance of less than 10 feet. Petitioner revealed in his testimony that his sole purpose or desire, at the time he shot Officer Kimery, was to flee in his car.  Beyond any reasonable doubt, Petitioner knew of the substantial likelihood that his conduct would result in Kimery’s death or serious injury.

Petitioner received a fair  trial and a fair opportunity to present his version of the facts.  The trial judge instructed the jury that they could consider Petitioner’s voluntary intoxication in determining whether he possessed the requisite mental state. The trial judge also instructed the jury on the elements of the offense of negligent homicide. The trial judge permitted Petitioner’s expert witness to testify that Petitioner lacked the requisite mental state to commit deliberate homicide due to alcohol intoxication. Petitioner had every opportunity to convince the jury that he did not possess the requisite intent to commit deliberate homicide and this court is confident that correction of the potentially defective “purposely” jury instruction would not have changed the verdict.

          For all these reasons and based on the entire record, this court finds that the error in the mental state instruction, if any, is harmless beyond a reasonable doubt.  


IT IS HEREBY ORDERED that the Petitioner’s motion to alter or amend judgment pursuant to rules 52 and 59,   Fed.  R.  Civ.  P., is DENIED.  

The Clerk is directed forthwith to notify the parties of entry of this order.  

Done and dated this 11th day of March, 1997.  


         United States District Judge