CHARGE: Two counts of assault
DEFENSE: Self-Defense (Complaining Witness #2) and Justified Use
of Force to Remove an Unruly Customer (Complaining
Witness #1)
FACTS OF THE CASE:
The following incident occurred in a local bar late in the evening on a Saturday night. There were four (4) people involved. The defendant, John Smith, was working at the bar as a bouncer. He is 27 years old and has a college degree. His job as a bouncer is only part-time. His primary job is a salesman for a local cellular telephone company. He is not married, has no children, and, other than a few minor traffic violations, has no criminal record. He is approximately 6 foot tall and weighs 165 pounds. At the time of the incident, he was living with his girlfriend and providing substantial financial support for her and her child from a prior marriage. They are not married.
The second individual involved in this incident was Sally Jones, the defendant's
girlfriend. She is employed full-time as a “dancer" at a suburban bar. She is 23 years old
and has been married once. She has a five (5) year old child from that marriage. She is
divorced and living with the defendant, along with her child.
The two complaining witnesses are females in their early twenties. Both are
employed full-time and are single. Neither one of them has any criminal record. They are
about the same height and weight: five (5) feet, seven (7) inches tall and weighing
approximately one hundred and fifteen (115) pounds.
On the night in question, the defendant was working as a bouncer in a local,
downtown Dayton bar. At approximately twelve o'clock midnight, the defendant's girlfriend entered the bar. She had just gotten off work. The bar was very crowded. The
defendant's girlfriend took a seat at the bar and ordered a drink. The defendant remained near the front door. It was the defendant's "duty station" as a bouncer that night.
Shortly after midnight, the two complaining witnesses entered the bar. They both
went to the bar and sat down next to the defendant's girlfriend. Both of them ordered a
drink. Prior to arriving at the bar they had each consumed two or three drinks over a three hour period. Since the two complaining witnesses knew both the defendant and his
girlfriend, they struck up a conversation with the girlfriend. They were the ones who
initiated the conversation. They testified that both of them told the girlfriend that they were aware of the fact that her boyfriend, the defendant, had been sleeping with a woman known to all of the individuals involved in this incident. The girlfriend became upset and wanted to discuss it further. Since the bar was extremely busy, with loud music playing, all three of the women retired to the ladies restroom to discuss the matter further. At this point, the defendant was still on duty at the front door.
After entering the ladies restroom, the three women continued their discussion of
the allegation made by the two females against the defendant. The defendant's girlfriend
became upset and angry and refused to believe that the allegation was true. The two
complaining witnesses suggested that she confront her boyfriend with the allegation. At
this point 'all three of the women left the ladies restroom and continued the discussion in
a hallway outside the restroom.
This discussion became rather heated and emotional. The defendant's attention
was drawn to the three women because of the heated nature of the discussion. He left his position at the front door and went back to the hallway outside the ladies restroom. When he arrived, he could see that his girlfriend was crying and upset. He asked her the reason for her crying. She repeated the allegation that the two women made about him. The two women were standing next to his girlfriend when she told him this. All of the above facts, were, in essence, accepting as true by both the defendant and the complaining witnesses. The testimony concerning what happened after the defendant arrived in the hallway is in conflict.
The two complaining witnesses, as well as two independent prosecution witnesses, testified to the following facts. Once the defendant was confronted with the allegation, he became extremely angry and upset. He demanded that both of the complaining witnesses leave the bar immediately. Both of them refused. They stated that they had done nothing wrong, and therefore, had a right to remain in the bar. After they refused to leave, the defendant grabbed one of the complaining witnesses, picked her up, and "bounced" her off the wall in the hallway. That hallway led to the rear exit. He picked this complaining witness up and carried her toward the rear exit. He was carrying her so that her body was horizontal to the floor with her head in the front, towards the exit door. When the defendant arrived at the exit he used the defendant's head as, for lack of a better term, a "battering ram". He rammed her head into the door to open it. Once the door was opened, he literally threw this complaining witness out on the sidewalk where she landed face down. She was knocked unconscious and had a substantial amount of blood on her face. An eyewitness testified that the defendant, after throwing the woman out on the sidewalk, stood and looked at her for approximately 20 - 30 seconds. At the conclusion of that time he re-entered the bar through the rear exit. An ambulance was called and she was taken to the hospital. She was still unconscious. She was treated and released.
After re-entering the bar, the defendant confronted the other female complaining
witness and demanded again that she leave the bar immediately. She refused to do so.
He then grabbed her by the arms and physically pushed her toward the front door, Upon
reaching the front door he slammed her into it, and, as a result of this force, the door flew open and she fell outside. She landed on the sidewalk. As a result of this she sustained numerous scratches and bruises. She did not require any medical treatment.
At this point the defendant was informed that someone had called the police and an ambulance. When informed of this, the defendant ran from the bar and left the area on foot. He never went back. He was arrested at his home early that morning.
The defendant's version of the events was quite different than the prosecution's
witnesses. To some degree, his testimony was corroborated by the testimony of his
girlfriend. The defendant's testimony was that the two complaining witnesses were
extremely intoxicated when they entered the bar. He further testified that the complaining
witnesses upset his girlfriend and started a loud argument with her in the hallway outside
the women's restroom. He stated that after ordering the first complaining witness to leave the bar she refused to leave. He then forcibly ejected her from the bar. He denied that he used excessive force in ejecting her. In addition, he testified that whatever injuries she received, they were not the result of her being ejected from the bar by him.
He admits going back into the bar after ejecting the first complaining witness. He
testified that he demanded that the second complaining witness leave the bar immediately. She refused to do so. At this point he said that she, in essence, physically attacked him. He stated that he, in fact, did grab her by the arms and push her out the front door, but that he' was simp1y acting in self-defense. In essence, the defendant testified that all of his actions were justified because the two complaining witnesses were highly intoxicated and were creating a disturbance. He simply acted in his role as "bouncer" when he ejected the two complaining witnesses from the bar. He denied any intent to do them any physical harm.
At the conclusion of all the evidence and closing arguments, the court found the
defendant guilty of both counts of assault. The court then directed a pre-sentence
investigation be conducted and, when it was completed, the defendant was to return to
court for sentencing.
An officer in the court's Office of Probation was assigned to the case. The Probation Officer, among other duties, obtained all the biographical information set out above. In addition, she interviewed the defendant concerning his statement of what happened. When the court reviewed the statement the defendant gave the Probation Officer, it was clear that his statement was inconsistent with his testimony at trial. In addition, the Probation Officer noted that the defendant showed absolutely no remorse for causing these injuries.
SENTENCING OPTIONS
Taking into account the various goals to be achieved by punishing criminal
offenders, you are now the judge and have to arrive at an appropriate sentence for the
defendant. What follows is a list of- options. None of them are necessarily mutually
exclusive.
- Each count carries a jail sentence of from one to one hundred eighty days. There is no requirement for mandatory jail time. If you decide to impose a jail sentence for each of the convictions you have the option of running the sentences either concurrently or
- consecutively. That is, concurrent sentences run at the same time, meaning that the defendant gets credit for two days for every one day spent in jail. When sentences are run consecutively the defendant has to complete one sentence before he can start the other.
- Each of these convictions carries a potential for up to twelve months of probation. The probation can be unsupervised or supervised. You can impose almost unlimited conditions on this probation, e.g. no use of alcohol, a "curfew", receive counseling.
- Each of these convictions carries a maximum potential fine of $1,000. This means that, if you decide to impose a fine as part of the punishment, you can select an amount between $1 and $1,000. You also have the option of suspending any or all of whatever fine is imposed.
- Your fourth option is a combination of all of the above. For example, you could sentence the defendant to 180 days in jail, suspend all but 30 days, and place him on six months supervised probation, along with a $500 fine. In addition, if you decide on a sentence of probation, you can require the defendant to successfully complete any number of programs. For example, you could require, as a condition of probation, that the defendant successfully complete an Anger Management Program. If the defendant fails to comply with this or any other condition, his probation can be revoked and he can be given whatever is left of the suspended jail term.
The goal, of course, is to arrive at a sentence that best fulfills the various goals of
punishment that we discussed earlier in class. You should be ready to explain how your
sentence is appropriate within the framework of these goals.
WHAT IS YOUR SENTENCE?