State v. Giminski

634 N.W.2d 604 (2001)

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Nature of the Case

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Facts

Secret Service Special Agents Rooney (with whom D had had numerous contacts since 1997), Hirt, and Pearson came to D's residence. Rooney informed D that they were there to seize two vehicles in his possession. D telephoned his attorney, who advised that he should surrender the vehicles if Rooney had a search warrant for them. Rooney showed D the search warrant, and the agents then accompanied D to the garage, where one of the cars was parked. Rooney told D's daughters, Elva and Ava, to remove the family's belongings from the Jaguar. After the daughters removed the belongings, D, his ex-wife, and their daughters returned to D's residence. Elva, the older daughter, was getting ready to go see her boyfriend. D testified that it 'didn't register' with him that 'she would be going into the vehicle' the agents were seizing. When Elva attempted to drive off in the van, Rooney pursued her in his vehicle with its siren on, drove into her path, and collided with the van on the street. Ava came screaming from the living room, 'He's going to kill my sister; he's going to kill my sister; they got a gun to her head.' D ran to the window and observed Hirt 'pulling Elva out of the front seat of the car head first' with a gun 'about two inches from her nose. 'D and Hermelinda (D's ex-wife) then ran to Hermelinda's residence, directly below D's, to get her gun. D told Hermelinda and her roommate, Angelina, to call 9-1-1 and ask the police to come immediately. D left the house, walked behind the van, and observed Elva's 'head on the driver's side in Rooney's car on the back seat' and Hirt 'in the car with his feet sticking out' while he was 'doing something' with Elva. D approached Hirt, pointing the gun at him and saying, 'Get that gun away from my daughter and … get away from her now.' Hirt lunged at him and grabbed the gun, and the gun discharged. In the course of the ensuing struggle, the gun discharged several more times, with bullets striking both Hirt and D. D testified that he did not intend to shoot Agent Hirt, that he did not intend to kill anyone, and that his 'only mission' was to 'extricate' his daughter, that he felt Elva 'was in mortal danger,' and that he believed Hirt was going to 'assassinate' her. Elva, Ava, Hermelinda, and Angelina also testified for the defense. D requested a self-defense instruction. The court said that D’s conduct was not objectively reasonable and refused. It was denied. D was convicted and appealed.