Consciousness of Guilt and Bad Acts Showing Motive

There is a lot going on in the case below which we could talk about related to a claim of self-defense.  The two I think are legally interesting are evidence of consciousness of guilt and admissibility of a defendant’s prior and subsequent bad acts to demonstrate motive, plan, or intent (among other things). Both had a fairly substantial impact not only for the jury in determining Defendant, Sean Atkins’, did not act in self-defense, but for the judge in issuing an aggravated sentence of 7 to 14 years’ incarceration.

The media reported the story (taken from the criminal complaint) as follows:

According to an affidavit of probable cause filed in Magisterial District Judge Glenn K. Manns’ office, Chambersburg police were called to 5 Garber St. for a report of a shooting, and found Tyson Hettenschuller, 19, lying unconscious on the ground in front of the residence, suffering from multiple gunshot wounds. Police and emergency personnel attempted life-saving measures on Hettenschuller at the scene. He was taken to Chambersburg Hospital where he was later pronounced dead.

Witnesses told police there was a fight between a white male resident of the house and a black male. Three other black males reportedly joined in on the fight. At that time, Hettenschuller tried to assist the resident of 5 Garber St. One of the black males, [Defendant, Sean Atkins,] described as being tall with orange hair, then produced a handgun and fired multiple gunshots that hit Hettenschuller. The group of black males then fled east on Martin Avenue.

Two of the males involved in the fight were found and interviewed by police. They said there was a fight at the house and that during the fight, Atkins took out a gun and shot Hettenschuller. Atkins and the other three black males then fled the scene.

Atkins was later located and interviewed at the Chambersburg police station. He told police he was with four friends, and one of his friends said he had an issue with a white male that lived at the Garber Street residence, so the group approached the male at the house and a fight ensued. Atkins and his friends were fighting with the male, and then Hettenschuller. Atkins admitted to police that he produced a handgun and fired at Hettenschuller five times, according to the affidavit.

Police asked Atkins if at any point during the fight he felt afraid or fear for his life. He said no, and that he and his friends were bigger than Hettenschuller and the other male.

Consciousness of Guilt

It’s a well worn evidentiary path that “flight equals guilt.” A jury is entitled to an instruction on the concept because “a defendant’s knowledge may be inferred from the circumstances attendant [to] his flight.” Commonwealth v. Johnson, 838 A.2d 663, 681 (Pa. 2003).  In a quick bit of legal research, I found a Pennsylvania case going back as far as 1898 on the issue.  See Commonwealth v. Boschino, 34 A. 964 (Pa. 1896).

Frankly, flight looks bad.  It especially looks bad when your defense to a crime is your were justified in your actions. (Hint: the Pa. “self-defense” statute is titled “Justification”.) We intuitively know that guilty people run.  Guilty people change their clothes to confuse the police.  Guilty people toss the weapon they used in “self-defense,” so it’s never recovered.  Atkins did all of these things.  These are inferences you do not want the prosecution to introduce and the jury to make.  

The general rule for self-defense is you stay at the scene after the shooting.  Of course, there are exceptions to ever rule, and your immediate safety is paramount.  If your attacker’s angry cohorts are still on scene threatening you, it would certainly be better to retreat to a safe location if you can do so safely.  If an angry mob gathers after the shooting, then retreating to safety may also be necessary.  But in either instance, you have an explanation for temporary flight from the scene, especially if you immediately call the police once you are safe.  Does this stop the prosecution from introducing “flight equals guilt”? No. But it does permit your attorney to (1) argue the instruction is inappropriate given the circumstances, and (2) provide an explanation to the jury during closing arguments if the judge gives the instruction.

Exceptions to Admitting Other Crimes, Wrong or Acts

You probably understand the concept of not using a person’s other crimes, wrongs or acts as the only indicator of guilt in a “conventional wisdom” sense.

“Just because little Johnny stole cookies from the cookie jar last week doesn’t mean the empty cookie jar this week was because of him.”

Other crimes, wrongs, or acts are generally “not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”  Pa.R.E. 404(b)(1).  An exception to this rule is such acts may be admissible for alleged “other purposes.”  The prosecution is not using the acts to show, in essence, “he did this bad thing in 2007 so he must have done this bad thing now.” Instead, the prosecution has a laundry lists of “other purposes” such as proving “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident.”  Pa.R.E. 404(b)(2).  Such evidence is colloquially known as “404B evidence.”

Atkins admitted to stealing the gun he was carrying from his uncle.  While he claimed he had carried a gun for years for self-protection prior to the incident, he was doing so illegally (as a minor).  Further, he carried a gun into an altercation that involved an argument over a drug deal.  Such activity can demonstrate a motive or an intent other than self-defense at the time of the shooting.

Trial courts have fairly broad discretion regarding the admissibility of evidence.  And, appellate courts use a deferential standard as far as that decision.  Meaning, the appellate courts do not often reverse trial courts on evidentiary issues.  (And, even if the appellate court thinks the trial judge was wrong, I haven’t even touched on the Phyrric victory that is “harmless error”.)  

Atkins’ trial attorney seemed to have a good understanding about how to argue a self-defense claim.  He argued important concepts like the speed at which fights happen, the jury putting itself into Atkins’ shoes, and resonable, but mistaken, believe of furtive movements/reaching for a weapon.  Yet, there is only so much an attorney can do when a defendant has acted in a manner which does not outwardly (i.e., objectively) demonstrate a belief in his own innocence after a shooting. As an old, wise investigator once told me at a training, “you can argue whatever you want, but juries are very good at figuring out who the asshole was in a fight.” Don’t be the asshole by leaving the scene, trying to hide, and destroying evidence.


The news articles linked below are worth of a read through, not just for the issues discussed here, but also to see how this story played out. Atkins statements at the scene and his testimony at trial were really unhelpful (especially regarding his “subjective” belief he was in danger). The articles give a good feel for how the prosecution framed this as murder rather the self-defense. You also get a feel for how a jury does not always automatically believe furtive movements as your life is in danger (especially when no weapon is ever found on the victim or at the scene).

Sources for this post (last accessed 5/2/2019):

Self-Defense and State of Mind

If you have done any training (certainly if you have done any training with Just Defense™), you may have been taught how important state of mind is in determining intent. It is why you educate yourself on a whole host of aspects about self-defense. Not just “the law,” but also biomechanics, psychological, and physiological aspects are all important to know and understand so you can explain your actions in the split-second you had to make a decision while under extreme stress.

Recall of course that reasonableness is a subjective/objective test in the law. The subjective part is whether the defendant had a bona fide belief his life was in danger. The objective test is whether a reasonable person would believe the defendant’s life was in danger. In making that objective determination, the jury get to “know what you knew at the time” of the incident. This is why continued training and education on firearms and self-defense is so important if you carry a firearm for self-protection. The more you know, the more the jury gets to know. At the same time, the jury can sometimes also learn about your “less than best” moments, even though an off-color or controversial remark may not be representative of your personality. Remember: Lawyers try to find any avenue they can to objectively show state of mind since intent is an entirely internal mental process. It is also why the law allows intent to be shown through circumstantial evidence.

A recent case provides a very clear example of a prosecutor trying to show intent through a prior “statement.” Officer Philip Brailsford of the Mesa, Arizona SWAT team shot Daniel Shaver five times with his AR-15. Shaver was unarmed, and on his hands and knees on the ground begging “Please don’t shoot me” when Officer Brailsford shot him. His hands, or at least one of them, could not be seen by the half-dozen officers who surrounded him. Shaver made a movement towards his waistband and Officer Brailsford opened fire and shot Shaver 5 times killing him. Last year, the prosecutor’s office charged Officer Brailsford with murder and his case is set for trial in October

Controversial dust cover on Brailsford’s AR-15

Officer Brailsford, against his department’s regulations, had the inscription “You’re Fucked!” on the inside of the dust cover of his personal AR-15, which had been approved for duty use by Mesa PD. The inscription has caused additional complication for him throughout the pre-trial process because state attorney’s argued the inscription was a “testament to [Officer] Brailsford’s mindset.” In order for such evidence to be admitted, the proponent of the evidence has to show first that it is relevant, and second that it’s probative value does not outweigh it’s prejudicial effect on the jury. In Pennsylvania, these well worn evidentiary rules are found in Rule 402 and Rule 403 of the Pennsylvania Rules of Evidence.  Rule 402 is a permissive rule permitting any relevant evidence to be admissible in a trial. This hurdle is generally fairly easy to overcome, and in this case, the inscription is easily argued to go to a defendant’s mindset prior to the shooting. Rule 403 is a little trickier, but requires the trial judge to weigh whether the probative value of the evidence is outweighed by its prejudicial effect. The probative/prejudicial standard is a balancing test and provides a trial judge with wide latitude based on his or her own view of the evidence. While one judge may let the evidence in, another may not. Unfortunately, the standard for an appellate court reversing a trial judge based on an evidentiary error is very deferential. In other words, if it happens, it doesn’t happen very often. Thus, it is hard to win such an issue with the appellate courts.

Fortunately for Officer Brailsford, the trial judge found the inscription “overly prejudicial” (compared to its probative value) and excluded it from trial. In my view, this was the right call. Officer Brailsford’s attorney, Michael Piccarreta, clearly understands self-defense law and convinced the court that the focus is to “ensure that only evidence [is admitted] that’s relevant to that split-second decision to use deadly force when the deceased made a move identical to a draw stroke in a gun investigation.”

The key point to take from Officer Brailsford’s situation is to be very careful of how you customize firearms or even the types of ammunition and other accessories you use (recall the “Black Talon” controversy in the early 1990s). I won’t say you should completely avoid customizing your firearm with inscriptions if you want to. However, there is a vast difference between a “You’re fucked!” inscription and one that says “Support Our Troops.” One will absolutely be used by the prosecution to show mindset, the other they will likely avoid in the event it plays on the sympathies of the jury. As always, the important thing to remember is if you customize a firearm, whether it is cosmetic, functional or both, always be able to articulate a legitimate reason for doing so.

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