Nature of the Case
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Facts
D and Jason Neal, the bricklayer, entered into a contract. Neal was to lay a brick flower bed at D's home, and defendant was to pay for labor and certain materials. The contract was to be completed over a two-week period in April because defendant had guests arriving at the end of that time. On April 14, Neal arrived to continue his work. This time he brought an acquaintance, Butler, to help him. According to Neal, D told Neal he should get his tools and leave without finishing the job. D then changed his mind and again changed his mind. D also said he was keeping the tools Neal had stored in defendant's backyard because he had paid for them. Neal claims there was a disagreement but was nothing more than a 'man-to-man discussion.' D shut the garage door and went into his house. Neal then took his tools from the porch, put them beside his car, and walked back toward the house with a hammer in his hand. When he reached the flower bed, he began knocking off the top layer of bricks because he was angry at being fired. Neal testified he was turned oblong with his back towards the front door of D's house, approximately seven feet from the door. Neal heard the gun go off. He did not hear D say anything other than his name before he heard the gunshot. Neal denied threatening or attacking D. Butler testified that Neal and D then had a 'heated discussion.' Neal picked up his tools and starting hitting the bricks he had laid, saying, 'he [defendant] wasn't going to pay him for it, so he [Neal] was going to take it out.' Neal was facing the front door while he was hitting the bricks. D came to the screen door and told Neal, 'you better,' then shot Neal in the leg. Neal never attempted to throw the hammer, attack D, or strike anything but the bricks in the flower bed. Neal never tried to enter the house. Butler testified he could not remember how high Neal swung the hammer, but Neal was intent on hammering the bricks. D claimed he heard a 'hammering noise.' Defendant hurried to the front door and saw Neal hammering away at the flower bed; D then started out the screen door and said something like, 'Cut it out! Stop! Stop! Stop!' Neal then turned with the hammer in hand and started to move towards D like a 'raging' animal and was in a 'very antagonistic mood.' D was very afraid and concerned only with how to stop Neal and protect himself. D picked up a handgun, which was lying under a cloth on a room divider next to the door. Neal had come up to the first level of the porch, approximately five feet from D. D fired the gun through the screen door, hitting Neal in the leg. D claimed he was intending to shoot down at the ground and sidewalk. D requested an instruction based on section 198.5, the 'Home Protection Bill of Rights.' D was convicted and appealed.
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