Wayne County Circuit Judge Annette Berry had a jury form that only a prosecutor would love: it had not option for a verdict of “not guilty.” The error has resulted in the Michigan Court of Appeals overturning the conviction of Michael Jess Wade, 50, a former security guard who was convicted of shooting and killing a suspected thief.
Appellate Judges William Whitbeck, Peter O’Connell and Donald Owens held “We … conclude that the verdict form was defective, requiring reversal, because it did not give the jury the opportunity to return a general verdict of not guilty. We note that the verdict form would not have been defective if it had included a box through which the jury could have found defendant not guilty of second-degree murder and not guilty of involuntary manslaughter. Despite the trial court’s efforts to clarify the verdict form with its instructions, because of the way the verdict form was set up, the jury was not given the opportunity to find defendant either generally not guilty or not guilty of the lesser-included offenses in violation of his constitutional right to a trial by jury.”
While Berry’s form did give jurors a not-guilty choice for the first-degree murder charge, it omitted the option of finding Wade generally not guilty or not guilty of the lesser offenses of second-degree murder or involuntary manslaughter.
There appeared to be confusion about the form when the foreman spoke to Berry but Berry reportedly cut off the foreman and said, “Just tell me which box you checked.” The court of appeals just checked the box “overturned.”
The case itself was somewhat interesting. Wade worked at an impound lot for a decade and discovered Edward Browder, 51, breaking into cars. Browder had a record of such thefts at this lot and had broken into the lot through a hole in the fence. Wade said that he fired a warning shot with his shotgun that ricocheted, broke apart and struck Browder in the back. He also said the Browder threw something at him. A medical examiner contradicted the testimony that said that Browder was killed by two direct shots to the back and one that ricocheted. Wade was accused of moving the body to a road to hide the offense.
A guard cannot use lethal force to protect property and can only use such force to protect oneself when faced with a comparable threat. The same rule applies in torts. In this case, the examiner said that Browder was running away.
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