By Anne Moore
 

Mercer County Prosecuting Attorney, Scott Ash, said Wednesday surveillance video shows the would-be thief, David Douglas Roberts, 41, pointing a gun at the customer and the clerk. He said the shopper shot Roberts four times.

"The laws of self-defense say when you are threatened with deadly force, and you reasonably believe you're confronted with deadly force, that's when you use force in return," said Ash. "There's a video from the store that shows after Roberts took the money, he was still pointing the gun at the shopper. At that point, the customer felt as though his life was in danger."

Ash adds there needs to be a clear and present danger to use force as a last resort. "You always have a fear that you're going to end up with a wild-west attitude, that in fact people are going to be too quick to shoot. That's not this situation. Lives were endangered here by the robber."

Jay Sabo, a former firearm instructor from Bramwell, agrees. He defended the customer's decision to shoot Roberts.

"It's there for your personal defense. To shoot someone should be a last resort. It's never a pleasant thing to take the life of another human being. Nothing is worth killing someone over except your own life."

Roberts' wife, Jessica, was arrested Tuesday on charges of conspiracy and robbery for her role in the incident.

UPDATE Aug. 23, 10:14 p.m.

David Douglas Roberts, 41, of Crumpler, was shot four times by a customer after he allegedly robbed the Pop Shop in Bramwell. He died on his way to Bluefield Regional Medical Center.

Roberts' wife, Jessica, was arrested on Tuesday afternoon. She is charged with conspiracy and armed robbery.

Mercer County Sheriff, Don Meadows, said the customer acted in self-defense. "One thing about a weapon is if you pull it out, you better be prepared to use it. He made what he thought was the right decision."

Meadows adds "you've got a right to defend yourself. And I think the guy felt threatened and he had a right to defend himself. Had he not done it, would he and the clerk be dead? We don't know. He had to make a decision at the time and I have no problem with it."

While the Sheriff defended the shooter's actions, an individual who witnessed the incident from his home at the top of the hill said Roberts was shot on his way out of the store.

Meadows said he has no current plans to make any additional arrests, but it is likely the case will go before a grand jury to decide whether the shooter acted in self-defense.

ORIGINAL STORY

A McDowell County man dies after robbing a convenience store in Bramwell.

The incident happened around 11:35 p.m. Monday at the Pop Shop on Route 52 in Mercer County.

Sheriff Don Meadows said a masked man entered the store carrying a shotgun.

He reportedly robbed the clerk and was pointing the gun, when a customer who had a concealed weapons permit shot him.

The suspect died in route to Bluefield Regional Medical Center.

Meadows said the shooter will not be charged, but they do anticipate making arrests in connection with the robbery.

The occupant of a dwelling is not limited in using deadly force against an unlawful intruder to the situation where the occupant is threatened with serious bodily injury or death, but he may use deadly force if the unlawful intruder threatens imminent physical violence or the commission of a felony and the occupant reasonably believes deadly force is necessary.

The reasonableness of the occupant's belief and actions in using deadly force must be judged in the light of the circumstances in which he acted at the time and is not measured by subsequently developed facts.

This formulation of the Castle Doctrine is not quite identical to the prevailing language used in Florida and the nearly two dozen states that copied Florida's 2005 self-defense reform law.   Fla. Stat. � 776.013 provides, in part:

While it would not be a case of the terrible anxiety following a shooting resulting in problems, one of the many dangers that anyone who speaks to the police while under investigation may encounter is the possibility of a question being mistaken for a declarative sentence.  Consider the following clip from the movie My Counsin Vinny, in which "William Gambini" intends to say, in the form of a question, "I shot the clerk?" but the sheriff believes that William confessed, "I shot the clerk."

My Cousin Vinny - I shot the clerk?

Had William Gambini invoked his right to remain silent and his right to counsel, this episode would never have happened. Indeed, although there may occasionally be an exception (for which you should get specific legal advice from your attorney), I highly recommend viewing the lecture In Praise of the Fifth Amendment: Why No Criminal Suspect Should Ever Talk to the Police by Regent University law professor James Duane.

1. first, while it is impossible to predict if, where, or when anyone may ever be forced into a self-defense situation, one of the few things you can do besides making sure that any handgun you regularly carry is well-maintained and that you are fully proficient in using it is to know one or more individual attorneys you would call if you ever had to defend yourself--and thus would need legal representation. There is no shortage of attorneys out there. Some are excellent; some would make you (and many of their fellow members of the Bar) wonder how they ever got in, much less through, law school, or passed a bar exam; and many are average. If they're like me in my private law practice, a good attorney will give you a free initial consultation in which he or she will give you an outline of the law and general advice to follow if you ever had to defend yourself and face the investigation that will follow, and conclude by expressing an optimistic hope that you will never need his/her services. At a bare minimum, you need to know who to call; more importantly, you need to know who will take your call and come to you as quickly as possible "after hours," as criminals (and the corresponding incidence of self-defense actions) do not keep bankers' hours.

2. Self-defense is not an accident; self-defense is an intentional act. Self-defense is also not something for which you apologize.  People apologize for wrongdoing.  A criminal apologizes; his victim does not.  As Dan Hawes, an attorney in Virginia, said on the OpenCarry.org forum, a person who was forced to shoot in self-defense should be able to truthfully testify, "You bet I shot him, you're dern-tootin' I meant to kill him; I was right to do so, and if I had it to do over again, I'd do exactly the same thing, only a little faster. I had a reasonably held, good faith belief, that I, or another innocent person, was faced with the imminent threat of a serious bodily injury, and/or I was stopping a serious felony (rape, robbery, murder, arson, burglary) in progress. What I did was necessary, right and proper, and I thank God I had the presence of mind to be prepared for the eventuality."  That is the statement of an innocent victim who was forced to shoot in self-defense. Apologies or claims that a person really didn;t mean to shoot (or otherwise claiming the shooting was not intentional) at any point in time make an otherwise innocent victim look like a criminal, talk like a criminal, quack like a criminal, and . . . well, if you can't figure out where this goes by now, you never will.
3. If possible, call 911, report that there has been [whatever crime was attempted against you] and a shooting, give your location, and request the police and a number of ambulances equal to the number of people you believe are injured.  Do not stay on the phone or discuss the circumstances further.  All 911 calls are recorded and may not only be used against you at trial but also released to the media under the West Virginia Freedom of Information Act.  There is simply no good reason to ever give a more detailed statement on a 911 call; a proper 911 call to report a shooting in self-defense will be sufficiently brief and boring to prevent the local TV stations from playing it for the next 2 or 3 days on every newscast with your name and mugshot on the screen while the audio is played.
4. Unless you are holding an assailant at gunpoint in order to protect yourself and avoid the potential need to shoot again, reholster your weapon.  The police responding to the scene of a shooting call will already be on edge and it should not be compounded by unnecessarily keeping weapons drawn.
5. When the police begin to question you, you should identify yourself, state the offense that was committed against you or other threat you faced, state that you were in fear of your life, and then (this next part is most crucial) say "I would like to cooperate further but I am in no condition to do so right now.  I am specifically invoking my right to remain silent and my right to an attorney.  I would ask that you extend me the same courtesy you would a fellow officer who was in my position."  The middle sentence in that quote is specific language that the courts generally require a person to say aloud in order to receive the full protection of your constitutional rights to remain silent (which, ironically, you cannot invoke simply by sitting silent) and to have an attorney present.  The police are only required to stop questioning you if you clearly and unequivocally state that you want an attorney. Muddled statements such as "maybe I should have a lawyer" are not enough to end an interrogation and suppress any statements the police might elicit from you after an ineffective attempt at invoking your rights.  The first and last sentences are designed to put the officer(s) with whom you're dealing at some personal ease with your position.  Whether the officer wants to admit it or not, this is exactly what he or she would do if he or she had to shoot someone on or off duty.  In those cases where a police officer is forced to shoot, the officer will take time to cool off, collect his or her thoughts, consult with an attorney before submitting to any questioning about what happened, and truthfully answer the inevitable questions after taking these important steps to make sure that he or she says exactly what happened, as it happened, and not misspeak due to the stress and anxiety that accompany a life-threatening incident and the actions he or she was forced to take in response.  Remember the clip from My Cousin Vinny above?
6. To reinforce the points above about how a person who has been forced to shoot in self-defense is in no condition to give an immediate, detailed statement to the police, the life-threating situation and subsequent shooting in self-defense will alter the person's senses and perceptions of what happened before, during, and after the shooting.  His or her heart rate will likely skyrocket and remain elevated for days.  Perceptions of time, distance, and space will be distorted. The person will most likely have developed tunnel vision of his or her surroundings as he or she was threatened and forced to act in self-defense. The person will likely have at least some short-term hearing loss.
7. What if you properly invoke your right to remain silent and your right to an attorney but the police ignore you, attempt to entice you to waive your rights, or attempt to badger you into talking when you don't want to?  Reassert your right to remain silent and your right to counsel and shut up.  While statements the police extract from a criminal suspect in violation of the suspect's Fifth Amendment rights will be suppressed in court, one of the circumstances in which an otherwise inadmissible statement by the defendant can be admitted in court is for the purpose of cross-examining a defendant who takes the stand (a certainty in self-defense cases).  Although you may be deeply shaken by everything that has happened, it is more important at this point than at any other that you stand your ground and remain silent.  Further pressure from the police is likely indicative of desperation on their part.  Worse (see Paragraph 12 below), might your case be one of those exceptional cases where your misfortune has been compounded by the "bad guy" being a "good guy" in the eyes of the police and/or the local courthouse cabal?  You likely won't know their motivations at this point, but stand your ground and keep your mouth shut except when repeating your assertions of your right to remain silent and your right to counsel.
8. Except when specifically instructed by your attorney to speak, do not speak to anyone other than your attorney or your spouse (if you are married), and in both cases, only in private settings.  With very limited exceptions (which you should consult your attorney for specific advice for your case), anyone else to whom you say anything about an incident may be compelled to testify against you. If you are arrested and have to spend time in jail, the jail will be crawling with "jailhouse informants" who either on their own or with guidance from the police will try to get you to talk about your case--and hopefully make incriminating statements they can take to the prosecutor and trade for leniency in their cases. Fellow inmates in the jail are the last people you should be discussing anything pertaining to your case. If you are free (whether by virtue of never having been arrested or of being released on bond) and the government is "out to get you," they will find your relatives, your friends, your acquaintances, and virtually anyone else with whom the police & prosecutor have even the slightest reason to suspect you may have communicated, and all of these people will be called to testify first before a grand jury and then at a trial.  It is crucial that if anyone (other than your spouse, and only in private) asks you to discuss the case, you should tell them that your attorney has advised you to not talk to anyone about the case and ask that person to respect your request (anyone who would not is not a true friend and should be disassociated with immediately).  It should also go without saying that you should not discuss the incident on Facebook, Twitter, online message boards, or any other electronic forum.
9. One of the key reasons it is to a criminal defendant's advantage to say nothing to anyone (other than your attorney, spouse, or the very few other individuals with whom you may engage in private, legally-privileged communications) is that in our legal system, most out-of-court statements (particularly by a party to a case) are generally considered "hearsay" and are generally inadmissible.  One of the key execptions is something we lawyers call a "statement against interest."  As the Miranda warnings state, "anything you say can and will be used against you in a court of law."  More specifically, your out-of-court statements can only be used against you.  The jury will be instructed that they may only consider your out-of-court statements to the extent they incriminate you; otherwise, they must generally disregard your out-of-court statements no matter how exculpatory they may be.  the only statements you can generally give to a jury that will help your case will be any testimony you might give in your own defense at trial.  Your out-of-court statements can be used to impeach your own testimony at trial, among other things.  Therefore, unless your lawyer has instructed you to speak, it is generally in the best interests of a defendant to say as little as possible.
10. Of course, given the nature of self-defense, it may be advisable to speak before taking the stand in your own defense at a trial, but this must be done only with the advice of your attorney.  In most self-defense cases, the police and prosecutors make the right call, but you must be prepared to defend yourself in court if your case is one of the few in which they do not agree with you.  However, one thing you should not do is give any detailed statements to anyone other than your attorney until after you have consulted an attorney and have been advised by your attorney to speak.
11. When dealing with your attorney in any legal matter, it is extremely important to tell the truth about everything when you are meeting with your attorney in private (where anything you say is protected by attorney-client privilege). Attorneys must know not only the good but also the bad and the ugly about your case. While attorneys can work around "bad facts," you may very well torpedo your own case if you lie or conceal information and deprive your attorney of his or her ability to fully prepare your case to deal with those bad facts.  The last place any attorney wants to learn about some skeleton in a client's closet is in court while the client is being cross-examined by a prosecutor about some "bad facts" the client conveniently forgot to tell the attorney early in the case.
12. Everything above is presented in the context of a run-of-the-mill crime that required a self-defense response.  However, given that it occasionally happens, can you imagine how much more difficult the circumstances might be for you if you had the bad luck of encountering a bad guy who knows someone who knows someone at the courthouse?  How about a star athlete at a major university (see last story below)?  Or, how about the errant son of a prominent politician (as could have happened to Annandale (Fairfax County), Virginia, resident Richard Hagy 8 years ago, when Nick Joe Rahall III committed a home invasion armed robbery for which he received exceptionally lenient treatment after his father, Congressman Nick Joe Rahall II, broke House ethics rules and wrote a letter on official congressional stationery to Fairfax County Circuit Judge David Stitt, which resulted in the younger Rahall receiving a suspended sentence and avoiding prison despite a prior criminal record and the violent nature of the crime perpetrated in Fairfax County, which would have entitled the victim to shoot and kill the younger Rahall had the victim been armed)?  Obviously, if you are faced with a legitimate self-defense situation, you will probably have no clue about the identity or background of the bad guy you're facing.