MO - Martinez Smith-Payne, 13, killed while stealing from car, STL, 1 Dec 2015

14 y/o high school freshman, Ernest said ---
- he & his 13 y/o cousin Martinez were "sleeping over at home of 11-year-old friend who lives nearby." Rode about 1½ miles to alley.
- they "saw a car with an inside light on parked in a fenced-in alley-facing driveway."
- they "decided to hop the [backyard] fence and look inside the car ... to rummage for pocket change."
- he "stood as lookout next to the driver’s side while Martinez and the friend looked through the car."
- “All I heard was gunshots. With the first gunshot, I was over the gate first. And a couple of more gunshots and the other boy went over the gate. Martinez was nowhere to be found. I went back and Martinez was over there laying in the alley, yelling ‘Help, help, help!”’

Homeowner/car-owner interrupted the boys, shot at them about 12:45 a.m.

Martinez died at a hospital.

Police arrested the man who shot him Sunday, then released him because prosecutors did not charge him.

"Prosecutors said Monday they are reviewing the case, though authorities released only a broad outline of the facts: a 60-year-old man shot Martinez after catching him and two other boys searching his unlocked car..."

City of St Louis, Circuit Atty's office statement said -
- the case “a terrible tragedy,” & “Missouri law regarding a homeowner’s right to protect himself and his property is complicated.”

http://www.stltoday.com/news/local/...cle_252388c0-9390-5b72-8a27-aab5c3249055.html Dec 1, 2015. {ETA: ~600 comments to story, w differing thoughts about boys & the shooting.}


Sad, sad, sad for all involved and their families.

Also from article, comments from mother of Martinez, mother of Ernest, and detective:
http://www.stltoday.com/news/local/c...5c3249055.html Dec 1, 2015

Ernest’s 41 y/o mother said - - none of the boys had guns.
A detective told her - - one of the boys had a screwdriver.
"It is unclear if any of the boys threatened the man with it."
Mother said - her son told her the "screwdriver was in a bookbag and not used as a weapon."

Martinez's 40 y/o mothersaid -
- "Martinez was a seventh-grader at Confluence Elite Academy in St. Louis."
- "He loved sports, especially football, and wanted to either be a professional football player or a chef."
- "He had two brothers, 19 and 11."
- "Two years ago, he lost several fingers in a fireworks accident."
- she "doesn’t blame the family of the youngest boy for not keeping the boys inside."
- “You can’t keep an eye on a child 24/7.”
- “Kids are going to be kids. And they’re boys."
- "I know that I raised Martinez to the best of my ability, being a single, black parent."
- "He was a good kid. He just made a bad decision.”
- she was "conflicted about whether the homeowner should face charges and hopes to talk to him soon to get his side of the story."

Also from article, opinions from Missouri attorneys:

"Missouri’s self-defense law, known as the castle doctrine, was passed in 2007 and protects homeowners from being charged or being found liable for damages if they harm invaders."

Peter Joy, Washington University law professor, said -
- there weren’t "enough facts known about the case to say if the doctrine could be used as a defense."
- "The homeowner does not have to retreat from an intruder, and the crux is if the homeowner is put in fear of “unlawful force.”
- "The castle doctrine “is just a mess in the sense that there are these situations where there are homeowners who are shooting individuals who may be guilty of nothing more than trespassing.”

Kevin Jamison, a lawyer, who lobbied for the passage of castle doctrine statute said -
- "To successfully invoke it, ...one needs to prove “that you did not start the fight, and you had to have a reasonable belief that you needed to shoot to save yourself.”
- "What constitutes a reasonable fear isn’t defined in the law and is at the discretion of police, prosecutors and the courts."
- "If the boys had weapons, such as screwdrivers, or if any of the boys advanced on the homeowner even from 20 feet away, that could be cause for reasonable fear."
- “It depends on how far away the kids were, if they were armed and what they were doing.”

http://www.moga.mo.gov/mostatutes/chapters/chapText563.html (my bolding, etc)

563.031. Use of force in defense of persons

1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:3. A person does not have a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining. A person does not have a duty to retreat from private property that is owned or leased by such individual. [<--- more CASTLE DOCTRINE ]

4. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

5. The defendant shall have the burden of injecting the issue of justification under this section. If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.

(L. 1977 S.B. 60, A.L. 1993 S.B. 180, A.L. 2007 S.B. 62 & 41, A.L. 2010 H.B. 1692, et al. merged with H.B. 2081)




563.041. Use of physical force in defense of property.

1. A person may, subject to the limitations of subsection 2, use physical force upon another person when and to the extent that he or she reasonably believes it necessary to prevent what he or she reasonably believes to be the commission or attempted commission by such person of stealing, property damage or tampering in any degree.

2. A person may use deadly force under circumstances described in subsection 1 only when such use of deadly force is authorized under other sections of this chapter.

3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

4. The defendant shall have the burden of injecting the issue of justification under this section.
(L. 1977 S.B. 60, A.L. 2007 S.B. 62 & 41)




ETA: forgot to include definitions for Chapter 563 in MO statute. Here we go:

Chapter definitions.
563.011. As used in this chapter the following terms shall mean:
(1) "Deadly force", physical force which the actor uses with the purpose of causing or which he or she knows to create a substantial risk of causing death or serious physical injury;
(2) "Dwelling", any building, inhabitable structure, or conveyance of any kind, whether the building, inhabitable structure, or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night;
(3) "Forcible felony", any felony involving the use or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping, assault, and any forcible sexual offense;
(4) "Premises", includes any building, inhabitable structure and any real property;
(5) "Private person", any person other than a law enforcement officer;
(6) "Private property", any real property in this state that is privately owned or leased;
(7) "Remain after unlawfully entering", to remain in or upon premises after unlawfully entering as defined in this section;
(8) "Residence", a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest; (9) "Unlawfully enter", a person unlawfully enters in or upon premises or private property when he or she enters such premises or private property and is not licensed or privileged to do so. A person who, regardless of his or her purpose, enters in or upon private property or premises that are at the time open to the public does so with license unless he or she defies a lawful order not to enter, personally communicated to him or her by the owner of such premises or by another authorized person. A license to enter in a building that is only partly open to the public is not a license to enter in that part of the building that is not open to the public.


JM2cts, could be wrong.

Because shooting a child is so much easier than calling 911.

bluesneakers said:

Because shooting a child is so much easier than calling 911.

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From info in linked article, I could not tell where the homeowner/car-owner was at the time -
- the boys "hopped the fence" or
- the boys were "rummaging" in the car, or
- when owner fired gun at boy(s).

Can you or anyone pls provide owner's location for all the above? Thx in adv.

Maybe another or updated article will give us some clues? Anyone? Thx in adv.

Regardless of where he was, it's sad, sad, sad for all involved.

bluesneakers said:

Because shooting a child is so much easier than calling 911.

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I was kinda thinking that. I mean, I sort of get shooting if you think someone is coming at you or your family with a weapon. But rummaging in your car for change? Seems like more of a "911" moment.

JMO

Maybe homeowner thought they were trying to steal the car . * speculative*

ETA That is allowed under the law. Right after the ' Castle Doctrine' was put into law in Texas, a man shot and killed another man who was trying to steal an A/C unit out of the back of his truck and was not charged. The thief was not advancing or threatening, just stealing from the truck.

SCHMAE said:

Maybe homeowner thought they were trying to steal the car . * speculative*

ETA That is allowed under the law. Right after the ' Castle Doctrine' was put into law in Texas, a man shot and killed another man who was trying to steal an A/C unit out of the back of his truck and was not charged. The thief was not advancing or threatening, just stealing from the truck.

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BBM. My off-the-bat instinct is to say that a car that one isn't in shouldn't count as a castle and can't be "defended" as such.

I agree with those suggesting that this was more a 911 than a shoot-the-thief moment.

s

EllieBee said:

I was kinda thinking that. I mean, I sort of get shooting if you think someone is coming at you or your family with a weapon. But rummaging in your car for change? Seems like more of a "911" moment. JMO

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Playing devil's advocate, for a moment on this point - "rummage" in the car for "pocket change"

Who made this ^ stmt? Ernest, 14 y/o, one of the self-admitted participants in the events, to stltoday.com. IIUC, info in stltoday's site did not come from LEO report, Ernest's quotes & attributions came from his stmts to newspaper reporter

What did owner say to LEO re -
- what he saw the youths doing in/near car? IDK, from this article.
- whether owner saw any of them wielding a weapon, e.g. gun, knife, screwdriver? IDK, from this article.

Presumably LEO responding and/or detective solicited that from owner, so info should be in report, but not yet public.

Hypo's
What if owner told LEO, while standing on back porch, he saw three youths, each w a weapon, closing in on him?
If so, does that change your/anyone's line of thinking about what happened, who should or should not be arrested, etc?
What if one or two boys were closing in on him? Each w a gun? Each w a knife? A screwdriver?
What if owner provided his home surv cam recording, which shows the above?

What if 3rd boy who is unidentified by and not quoted in article, said to LEO -
- 'we wanted to rummage car for pocket change' - and aligns all details in Ernest's stmt to stltoday.com?
- 'each of us has a gun and we closed in on guy on backporch who shot at us and aligns w details in owner's stmt to LEO?

We have info from a newspaper's interview (apparently) one of 3 youths involved, a self admitted participant.
Seems some posts suggest or conclude owner should be arrested, charged, & criminally convicted for boy's death, but I may be reading too much between the lines.

We have neither LEO reports, w stmts from all involved nor autopsy or other forensics reports. Lots of missing pieces, imo, are needed to put the puzzle together, before LE & circuit atty make any decisions re poss arrests. JM2cts.

SCHMAE said:

Maybe homeowner thought they were trying to steal the car . * speculative*

ETA That is allowed under the law. Right after the ' Castle Doctrine' was put into law in Texas, a man shot and killed another man who was trying to steal an A/C unit out of the back of his truck and was not charged. The thief was not advancing or threatening, just stealing from the truck.

Click to expand...

How did we get to here? We're travelling backwards.

SCHMAE said:

Maybe homeowner thought they were trying to steal the car . * speculative*

ETA That is allowed under the law. Right after the ' Castle Doctrine' was put into law in Texas, a man shot and killed another man who was trying to steal an A/C unit out of the back of his truck and was not charged. The thief was not advancing or threatening, just stealing from the truck.

bluesneakers said:

How did we get to here? We're travelling backwards.

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Click to expand...

SCHMAE -
Agreeing w you that stealing vehicle may have been the intent of one or more of these kids. And one or more may have been taking actions to do that - w that trick on the steering column & ignition. Not convinced they were, just one possibility, among many.

bluesneakers -
Yes, I'm puzzled too about SCHMAE's above ex. Maybe more to the story, like a gun or other weapon in perp's hand, maybe owner was occupying truck cabin at the time, etc. IDK.
But regardless, that was in TX, and this thread is MO, which is the relevant statute here.

SCHMAE said:

Maybe homeowner thought they were trying to steal the car . * speculative*

ETA That is allowed under the law. Right after the ' Castle Doctrine' was put into law in Texas, a man shot and killed another man who was trying to steal an A/C unit out of the back of his truck and was not charged. The thief was not advancing or threatening, just stealing from the truck.

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Well, that's just sad. AC unit=life. And pshaw to the judicial system. Let's just use our pistolas to circumvent our legal system. Silly Constitution!

bluesneakers said:

How did we get to here? We're travelling backwards.

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It's all about the Skittles and a hoodie. Bad business. Shoot first, and eff the legal system. Some people are not allowed rights.

EllieBee said:

It's all about the Skittles and a hoodie. Bad business. Shoot first, and eff the legal system. Some people are not allowed rights.

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Yeah, those kids with Skittles always get away with it.

EllieBee said:

Well, that's just sad. AC unit=life. And pshaw to the judicial system. Let's just use our pistolas to circumvent our legal system. Silly Constitution!

Click to expand...

EllieBee said:

It's all about the Skittles and a hoodie. Bad business. Shoot first, and eff the legal system. Some people are not allowed rights.

Click to expand...

bluesneakers said:

Yeah, those kids with Skittles always get away with it.

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Thanks for responses^.

So whaddya think LE & Circuit Atty (Prosecutor) should do now?

al66pine said:

Thanks for responses^.

So whaddya think LE & Circuit Atty (Prosecutor) should do now?

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If the circumstances are how the kid described them - they were in his car stealing change, the screwdriver was put away or not visible, and he walked out and shot at them - he should be charged.

JMO

Man charged with gun possession in death of teenager caught stealing from a car

A St. Louis man charged with shooting and killing a teenager he caught breaking into his car is now facing charges. Not for killing the teen, but for being a felon in possession of a weapon.

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60-year-old Lervurance McDade shot and killed 13-year-old Martinez Smith-Payne last month when the boy and his cousin were rummaging through his car.

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St. Louis man who shot 13-year-old would-be thief is charged with gun crime

Prosecutors have been reviewing potential charges against Lervurance McDade, 60, in the death. But it appears that the shooting of Martinez Smith-Payne, 13, may be considered legal under Missouri&#8217;s 2007 castle doctrine statute that permits use of deadly force in the face of &#8220;reasonable fear.&#8221;

The shot was fired from a distance of more than 70 feet away, police sources said.

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Reasonable fear 70' away from two 13-year-olds? Right.

Documents charging McDade with unlawful possession of a firearm say he handed a Colt .380-caliber pistol to police Sgt. James Kenny five minutes after the shooting. McDade was arrested and admitted that he owned the gun.
...
He had pleaded guilty of illegal possession of a weapon and unlawful use of a weapon on Nov. 21, 1989, in Pemiscot County, Mo., court documents say. He also was sentenced in 2013 in St. Louis County Circuit Court to five years on probation on a felony charge of being more than 12 months in arrears on child support.

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What a guy.

It serves him right. I hope they charge him for shooting the kid also!