Shaw v. State – this case is on cert. and set for oral argument at 10:30 a.m., Tuesday, May 13, 2014.
Shaw was convicted of aggravated assault and malicious mischief and sentenced to serve 10 years. It all started at a party in an apartment in Richland. Brett Shaw was in the parking lot outside the apartment with two other guys when one of those guys, Alex Gill, threw an empty beer bottle into the bushes. Shaun Killingsworth told him to pick it up. Shaw told Killingsworth that Gill was only 17 years old and to leave him alone. Later Shaw and Killingsworth got into it again in the apartment but they were separated before any blows were thrown and Shaw was escorted off the premises. Even later, two people told Killingsworth that Shaw was jumping up and down on Killingsworth’s car. In the ensuing altercation, Shaw bit part of Killingsworth’s ear off.
On appeal Shaw raised the following issues: 1) the trial court erred by denying his motion for a directed verdict and his motion for a JNOV because he was acting in self-defense; (2) the trial court erred by allowing the State to call witnesses, including expert witnesses, in violation of discovery rules; (3) the prosecutor misconstrued the evidence and prejudiced the jury; (4) a mistrial should have been granted based on juror misconduct and an improper line of questioning; (5) teeth are not a mechanism likely to produce death or serious bodily harm; (6) the trial court erred in denying two “words of provocation” jury instructions; and (7) cumulative error.
The Court of Appeals affirmed. The cert. petition raises the issue of whether teeth are a mechanism likely to produce death or serious bodily injury. Shaw argues that Killingsworth had pushed Shaw against the car and was holding him there. Shaw could not get away. At some point, in an effort to get Killingsworth off of him, Shaw bit Killingsworth’s ear and Killingsworth responded by moving away. It was Killingsworth’s trying to force Shaw off of him that caused the portion of the ear to be bitten off. Given this, “there was insufficient evidence . . . including the number of times bitten and the degree of force used by Shaw’s teeth to consider Shaw’s teeth a means likely to cause serious bodily injury as a matter of law.” Sounds interesting even if not necessarily an issue that will come up often.
Justice Kitchens points out that mayhem is a lesser included of assault. I hadn’t thought of that before. Interesting point if you have an assault case coming up.
Justice Dickinson expresses concern that the jury needed an instruction to tell them what acts would and would not make one the “first aggressor.” I can see that being a real concern given that a majority of the public seems to think that following someone makes you the initial aggressor (a la Zimmerman). Here’s an important lesson. The attorney from the AG’s office admits that she has only prepared the two issues presented in Shaw’s cert. petition. Justice Dickinson points out that once cert. is granted, the Court can consider any and all issues. Good to remember! (I think I knew that but I can see myself forgetting it if I were in the AG’s attorney’s shoes. She is doing a good job overall).