My question involves criminal law for the state of: Arkansas
My question is in regards to a self-defense case that occurred in Arkansas. I have been a licensed concealed carry holder for 14 years, and recently plead "no contest" to one count of aggravated assault. I have no other criminal record. I am 35 years old with a BA in English Literature and a Minor in Philosophy. Facts of the case: I suffer from a neurovascular disease commonly referred to as "migraine." I needed to get a refill of medication of Crestor and a beta-blocker called Toprol XL (for migraine prophylaxis). I stopped at a local family practice clinic on my way home from work, and provided the clinic with my medical records.
At this time, my right arm was in a support brace due to a dislocated ECU tendon, and I had just had an embolization splint removed by a hand surgeon approximately 9 days before. I also have 3 herniated discs in my c-spine at C5, C6, and C7 with a “right side cord compression”, which means the spinal cord is being compressed by the vertebrae on the right side. I was scheduled to undergo spinal epidural injections in 72 on the day this took place, in order to reduce the pressure on my spinal cord and improve function of my right arm, as well as reduce pain. This procedure is performed under anesthesia, and the patient is placed in an MRI machine so that the doctor will not damage the spinal cord. Needless to say, I am not exactly in the shape to be fighting anyone.
When the doctor entered the exam room, he began to berate me for a prescription in my medical records that was written for 10 narcotic pain pills, which were prescribed to me by my migraine specialist. The doctor stated that the medication was not appropriate for migraines, and that I needed depression medication. I told him that I was not there to discuss my migraine disease with him, but only to discuss a prescription for Crestor (for high cholesterol), and the blood pressure medication Toprol XL. The doctor continued to ask degrading questions, and stated, “I am not about to write a bunch of narcotics for headaches.” I again told him that I was not seeking narcotics and that I would trust the specialist over his advice.
We continued in this fashion for a few minutes, with him making inappropriate comments about migraine disease, that migraines were over treated and that I was most likely a drug seeker. As my wife is a doctor as well, he then stated, “How long has your wife been prescribing you narcotics?” I, of course, took umbrage at his assertions, and told him that not only had my wife never written me a prescription for anything, but that if she was to prescribe me narcotics, not only would she immediately lose her license and job, but that the pharmacist would never even fill the prescription. I asserted that he knew this, and that his comments were out of line. He then stated, “Well the only people I know that die from migraines are the idiots that go home and kill themselves”, and before I could respond he walked out of the room. Migraines and cluster headaches are colloquially referred to as “suicide headaches.”
I waited for the nurse to return with my medical records, and then I left the exam room, as I did not want any type of treatment from this “doctor.” As left the exam room, he was standing at the end of the hallway leading to the exit. I yelled out his name, and walked down the hall to the exit. I then stated, “Before I leave here, I wanted to tell you that the reason those people you call idiots, who are actually called patients, go home and kill themselves is because they are treated like criminals by doctors like you.” He responded by grabbing my left arm and squeezing until I yanked my arm away, and then he began to bump his chest against mine. He would continue to push and shove, and call me a “little punk” as I walked towards the security door leading to the lobby. He followed me through the security door, and then he followed me outside the front door of the clinic, into the parking lot, and to my vehicle. When he came outside, he used his right hand to sweep his white coat back, and reached behind his back as if reaching for a weapon.
I know this movement to be consistent with someone carrying a firearm in the small of their back, in what is termed an “inside the waistband holster.” He then threw down his stethoscope on the pavement and told me, “You better get the Hell out of here you little punk.” As I thought he was reaching for a firearm, I took cover behind my vehicle. At this time 3 nurses came out of the front door and began to tell the doctor to come inside, they pulled as his arms and coat, and stated “Dr. X, please come inside, it is not worth it.” As he redirected his attention to the nurses, and stepped back up onto the sidewalk of his clinic, I came out from behind my vehicle to try and get inside and leave. As I moved to my car door, he immediately turned toward me and ran at me, causing one of the nurses to try and stop him by jumping in front of him (facing him). He reached over the nurse, and grabbed me by the back of the neck. I immediately responded by drawing my firearm as I spun around towards my attacker, and shoved him with my left hand, and pointed the pistol in his face as I screamed, “GET BACK! GET BACK!”
He immediately started back-peddling, but as he had stepped off of the sidewalk, he ended up tripping over the sidewalk and falling down. I used this as my opportunity to get into my vehicle and I immediately drove away, while calling 911. I was the first person to call 911, and refused the dispatch request to return to the scene, as I explained to her that it did not make sense to return to a location where I had just drawn my gun to protect myself. I explained that I thought he was armed, and that it was not safe to return to the scene. I told her I was going home to disarm, and provided all of my contact information as well as my concealed carry license number, and license plate, make and model of my vehicle, etc.
I called a family member on my way home, and my uncle came over to my house to wait with me for police to arrive. After 1 hour I called the police again, as no officer had responded to my 911 call. Dispatch then told me that they had given my information to the responding officer, and that she would have him call me back. During the next four hours, I would call the police 2 more times, as I had no idea why no officer had responded. Finally, the responding officer called me, and explained that if either one of us wanted to file a criminal complaint, that we would need to come down to the station and file a report. I then contacted a criminal attorney, and he advised me to shut up and make no further statements to police.
Four days later, I was arrested at my home by half-a-dozen officers, who arrested me at gunpoint. I refused to answer any questions, and was remanded to the county jail where I was released by a bail bondsman in less than 1 hour. I was offered at total of 4 for plea deals, and I rejected all of them because I refused to plead guilty. Each time I rejected a plea deal, the prosecutor would respond by adding an additional charge. On the day of court, I was facing 1 count of aggravated assault against the doctor, another aggravated assault against the nurse who tried to intervene, and 1 count of terroristic threatening. All of these charges were a class D felony, with a maximum sentence of 6 years in jail, for a total possible exposure of 18 years in jail. I have a 16 month old daughter, and I am a dedicated father and husband. It was the most difficult decision I have ever had to make, but I again refused to plead guilty. The prosecutor responded by adding a firearm enhancement statute to my charges, which doubled my time for a possible exposure to 36 years in jail. We were a week out from trial when the Treyvon Martin case hit and every media outlet in existence was bleating and baying about the dangers of concealed carry. The night before court, I decided to plead guilty, as it was more important to me to be a father and husband than it was to have my civil rights. I spent several nights before court just standing in the corner of my daughter’s bedroom and watched her sleep in her crib.
However, on the morning of court, about 10 minutes before I was to appear before the judge, I could not sign the plea agreement in which I stated I was guilty. When I got to that question on the plea agreement that stated I was guilty, I froze, and refused to sign. I left my attorney and the prosecutor sitting at the table about 10 feet from the judge, and went and sat with my family in the gallery to await my fate. Neither my attorney nor the prosecutor was sure how to proceed, as neither one of them was prepared to argue the case at that time. However, it had been 12 months to the day since I was arrested, and they were a few hours away from violating my right to a speedy trial. They both walked into the hallway, and began a discussion. A few minutes later, my attorney called me into the hallway, and explained that the prosecutor would agree to a plea of no contest. Reluctantly I accepted the plea agreement as it was a small psychological satisfaction that I did not have to admit guilt. To this day, I have never admitted guilt, and I will go to my grave maintaining my innocence The judge, after asking the prosecutor to state the facts of the case, agreed to my plea, and I was sentenced to a 30 day curfew which was monitored via electronic bracelet, $1000 fine, and 5 years of probation.
After the trauma of the trial was over, I finally had my mind back, and I asked my attorney for the evidence file provided to him in discovery. I was astonished to find that when the investigating detective interviewed the witnesses (whom were all employees of the clinic), they were all sitting in a conference room, and could all hear each other’s account of the events. I also was shocked to find that the doctor’s wife, who was not even present on the day of the event and who was also the clinic manager, was allowed to sit in on all the interviews as an “observer.” At the end of each interview, the detective would turn to the doctor’s wife and state, “Mrs. X do you have anything to add?” To which she would respond with a curt, “No.”
I also discovered from reading the court reporter transcripts that several of the witnesses would contradict themselves during the interview. One of the nurses who was interviewed was asked by the detective, “Did you see the gun?” to which she responded, “No, I was looking through a crack in the front door.” He then asked her, “What color was the gun?” She responded by saying, “Well…I thought it was silver, but everyone else is saying it was black…so it was black.” The detective responded by saying, “OK”, and made no attempt to point out her contradictory statements, nor did he question why she would change her statement based on the testimony of other people. There are several other instances with all witnesses involved where similar statements were made, and then altered a few questions later, as their testimony changed as they discussed amongst themselves what happened. I have counted 14 times in the transcripts, where the court reporter wrote, “Unintelligible-many people speaking at once.”
The prosecutor never interviewed one witness or victim, nor was any effort made by the detective or prosecutor to find any exculpatory evidence that would mitigate my supposed guilt or reveal their testimony as false or contradictory. I asked my attorney if it was legal for the detective to allow the doctor’s wife to sit in on the interviews as this would obviously affect their statements, and whether it was legal for the detective to interview all the witnesses at the same time, in the same room, with all witnesses hearing the other’s version of events.
My attorney responded by saying, “Well, it is probably a violation of criminal procedure, but not technically illegal.” My attorney filed no motion to consolidate the charge of “terroristic threatening” even though to my understanding the terroristic threatening charge (which was added weeks after my initial charge) should be encompassed in the aggravated assault charge. He made no motion to dismiss the aggravated assault charge against the nurse who was responding to the same threat cue as me, and put herself in the middle of the conflict in the same instant I reacted to his attack. He filed no motion to have witnesses statements excluded as evidence due to blatantly obvious contradictions and changes in testimony based on the statements of others. He filed no pretrial motions of any sort that would exclude biased or untruthful testimony, and he told me that the fact the doctor’s wife was present during the interviews was of no merit.
My questions are the following: 1. Should the charges have been consolidated? 2. Should my attorney have filed a motion to dismiss the charge involving the nurse, as she was the one responsible for jumping in between the doctor and me, and since I was not facing the doctor, had no idea she was even behind me? 3. Should he have filed a motion to exclude the witness testimony based upon blatant contradictions, and the fact that the statements changed during the course of the interviews as people discussed what actually happened? 4. Is there any recourse my attorney should have pursued regarding the violation of criminal procedure during the interviews and the fact that they sought no exculpatory evidence in my defense.
I apologize for the long post, but this is the best way I know how to convey what happened. I humbly plead for any advice or counsel that could be provided in regards to this matter. I was a commercial real estate broker with a great career, a volunteer for BigBrothersBigSisters, and a decent citizen with no criminal record. Now I am a felon, with no credibility, no ability to hold a professional license, and no future prospects for a career. I had intended to go to law school next fall, but now I will never be able to be an attorney, as I will never be admitted to the bar with a violent felony. Who would hire a violent felon? I wouldn’t even hire me if I went by how this looks on paper.
I never, ever, threatened anyone. I did not lord over him with the weapon or attack him while he was on the ground, nor did I cop an attitude like I was 10 feet tall and bullet proof. As soon as I could get into my vehicle I got away from him as fast as I could. I was scared for my life, I was scared that he was going to make my spinal injuries worse, and I followed my training exactly as I have been trained in my required concealed carry class, in advanced concealed carry classes, shooting in competitions for International Defensive Pistol Association (IDPA), and the experience I have acquired over the last 14 years carrying a firearm without incident.
I don’t understand why this happened or what else I could have done to prevent the altercation. I retreated as far as possible, was not the original aggressor, waited until the last second to draw my firearm, and was the first person to call 911 for help. I was in no condition to defend myself, and I had a reasonable belief that this person was armed as well. He either had a gun or wanted to scare me and make me think he had a gun. The problem is he succeeded in making me think he had a weapon, and that escalated my response in turn. To this day, I have no idea whether he had a weapon or not, although his wife did write on her blog about this the next day, and stated he did have a concealed carry license as well. She also wrote my full name, disclosed my private health information by asserting that I came to the clinic, and that I came specifically to get narcotics (she was not even there), she told people that I had a child, where I lived, that she “prayed that I don’t hurt my child or wife”, that I was a drug addict, etc. That post was viewed by over 4800 different people.
I keep having nightmares about this incident, and I go several days without sleep because I can’t sleep or I am afraid to go to sleep because of the horrible dreams. In my dream I am faster than him, just like in real life, and he pulls out his gun, but I land my shot first. He goes down, and I rush over the help him. I used to work as an EMT, and in my dream for some reason I have my EMT uniform on, and I have my scissors attached to my chest just like when I was working. I cut his shirt off, and apply pressure to the wound. I roll him on his side and check for an exit wound. I am screaming at the nurses to come and help me. I keep yelling over and over, “Help me! Please help me! I am not going to hurt you! He is going to die! PLEASE HELP HIM! You know what to do!”
But in my dream they do not come and help him. They stay hidden behind the corner of the building and watch. They won’t come and help him because they are afraid; they are afraid of me. And that is how I wake up; with my body and sheets soaked in sweat, in a panic, and heart racing. The dreams are so vivid I can smell the gun powder, and I can feel the warm blood on my hands as I try to help him. This last year has been the worst of my life, and I don’t know how to move on. I don’t know how to be a criminal, and when I go to my probation officer, I can barely talk without falling apart in tears.
I feel like I have lost everything, and I don’t know what to do, and as horrible as the dreams are, the real nightmare beings when I wake up.