Phillip Walker Sailors, 69, has been charged with malice murder in the killing of Rodrigo Abad Diaz, a 22-year-old Cuban immigrant who mistakenly pulled into his driveway due to faulty GPS directions.
Friends in the car told police that they were trying to pick up a friend to go ice skating on Saturday when their GPS directed them to Sailors’ address. They waited in the driveway for a few minutes when Sailors emerged and fired a shot in the air. They told police that Diaz was trying to turn around the car when Sailors then fired a round into the car, killing him. Sailors then held the group at gunpoint until police arrived.
Sailors was a war veteran and a former church missionary.
His attorney has already said that Sailors thought he was defending his home and that he was going to be run down, even though the fatal bullet was fired when the car was moving away from the home and Sailors. The comments suggest a type of mistaken Castle Doctrine defense. Georgia is one of the states with a Castle Doctrine law. The Georgia law states:
O.C.G.A. § 16-3-23
Use of force in defense of habitation
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.
Thus it is based on a “reasonable belief.” The lawyer was quick to point out that another neighbor had recently been burglarized. However, that would not be enough for a reasonable belief. Then there is the question of the use of the law for a driveway. I have seen cases where these laws have been extended down driveways as a curtilage of the home, but that is a matter of state interpretation. The picture below shows a long driveway at the scene.
The decision to charge “malice murder” is interesting since it requires a higher level of intent of scienter:
16-5-1 Murder/Felony Murder | Georgia Law
(a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.
(b) Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.
(c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.
(d) A person convicted of the offense of murder shall be punished by death or by imprisonment for life.
Malice murder is a term that is not common in many states but clearly distinguishes an act as more premeditated than manslaughter.
If the defense lawyer’s comments are any indication, it appears that the claim will turn on Sailors responding to noise in his driveway and then facing a car that was moving toward him. He may argue that he fired after avoiding the car to stop what he thought were felons. It is a tough claim to make when you have a car full of witnesses testifying to the contrary.
At his age, it would not take much of a sentence to be the equivalent of life for Sailors. Prison tends to speed up the aging process and older incarcerated tend to do poorly. He may also face a civil wrongful death action from the family that could complicate matters in terms of legal fees etc.
Source: Atlanta Journal