This case involves the death of Tyrone Brown on the morning of by 7Tu3e5

VIEWS: 4 PAGES: 5

									STATE OF MARYLAND                            *                      IN THE

                                             *                      CIRCUIT COURT

       v.                                    *                      FOR

GAHIJI TSHAMBA                               *                      BALTIMORE CITY

       Defendant                             *                      CASE NO. 110193001

*      *       *      *       *       *      *        *      *      *       *      *       *

                                              Order

This case involves the death of Tyrone Brown on the morning of June 5, 2010. There is no
dispute that the Defendant shot Mr. Brown 12 times and that the shooting was the cause of Mr.
Brown’s death.

There is also no dispute that the Defendant and three female friends were at the rear door of the
Red Maple at Eager & Morton Streets at around 1 AM. Mr. Brown, his sister, Ms. Kangalee and
Ms. Dodge were walking south on Morton Street. Ms. Ramsay, one of the Defendant’s friends,
was on the ramp outside the Red Maple, when Mr. Brown touched her inappropriately on the
buttocks.

From this point forward, the versions of the various witnesses differ. The court has had to
grapple with what are seemingly very divergent accounts of what happened. From this
standpoint, it is important to determine which witnesses were credible. Credibility is determined
not just by whether someone is literally lying, but also by whether the witness had a bias or
motive not to be completely straightforward, whether intentionally or subconsciously, whether
the witness was able to see or hear things about which they testified, does the witness have an
interest in the outcome of the case, did the witness appear to be telling the truth, and what was
the witness’ behavior on the stand and manner of testifying.

The court believes that Ms. Kangalee was a very credible witness. Ms. Kangalee was the
victim’s sister. She was called as a hostile witness by the defense, and she testified to matters
which were not beneficial to the State’s case. She did not gloss over the inappropriate actions of
her brother toward Ms. Ramsay and she stated that her brother was walking toward the
Defendant - with his hands up and out. She was close to the central events which occurred in this
case. Her demeanor was balanced on the stand. In short, although she was quite upset about the
death of her brother, she was not going to lie about what happened, nor did it appear that the time
which has elapsed since the incident has in any way affected her memory. Of all the witnesses
who testified, her testimony was the most credible, and the Court believes that her version of
what occurred is in fact what did occur.

Except for their testimony about Mr. Brown inappropriately touching Ms. Ramsay, the Court
does not believe that the testimony of Ms. Ramsay and Ms. Atkinson was credible as it related to
what occurred at the ramp. First, both women are close friends of the Defendant. Specifically, as
it pertains to Ms. Ramsey, her statement that the victim was “running after the Defendant” at the
ramp scene was simply not believable in light of the testimony of Ms. Kangalee and Ms. Dodge.
Even the primary witness who had the victim moving toward the Defendant, Ms. Kangalee, had
him doing so in a walking manner with his hands up. Also, Ms. Atkinson’s testimony that the
Defendant came in between Mr. Brown and Ms. Ramsey was inconsistent with any of the other
testimony and did not make sense.

 The testimony of Mr. and Mrs. Hill and Ms. Dodge, as their testimony pertains to the
interactions of Defendant and Mr. Brown in back of Eddie’s, is discounted by the Court. This is
so given that Ms. Kangalee was closer in distance to what occurred. This does not mean that the
Hills or Ms. Dodge were not testifying honestly about what they thought they saw. In fact, the
Hills would be expected to be the most objective witnesses since they did not know any of the
witnesses, the Defendant or Mr. Brown. However, the vantage point of these witnesses was
simply not as close as was Ms. Kangalee’s.

The Court rejects the testimony of Mr. Deveaux. He did not appear to be telling the truth on the
stand, and he seemed evasive. He testified as to facts that were far afield from what the other
witnesses testified to – e.g. he had the confrontation between Ms. Ramsay and Mr. Brown, and
the subsequent drawing of the gun by the Defendant, as being in the street and further south of
the ramp. The court visited the site yesterday, by agreement of the parties, and it is not clear Mr.
Deveaux could even see the portion of the street where he claims the altercation to have
occurred. He also could not have seen what was going on at the ramp.

So before reviewing the Defendant’s testimony for credibility, the Court will look to the
testimony of Ms. Kangalee, which again the Court finds to be credible. The Court will also
summarize what the photos show and what the Court observed in its visit to the site yesterday.

Ms. Kangalee stated that Mr. Brown touched Ms. Ramsay’s buttocks and Ms. Kangalee grabbed
Mr. Brown’s wrist and stated, “That’s disrespectful.” Mr. Brown said, “My bad.” Ms. Ramsay
then spoke to the Defendant, approached Mr. Brown and then tried to slap Mr. Brown. Mr.
Brown blocked the slap and Defendant pulled his gun, Mr. Brown pushed the Defendant, and
Defendant said “Go ahead do it again do it again” and “get your m/f ass on the ground.” The
Defendant did not show a badge or otherwise identify himself as a police officer. So, Mr. Brown
said he was not going to get on the ground. Mr. Brown did however state, “Dude, you need to
calm down.” Mr. Brown had his hands up while Defendant was waving the gun around,
including in the direction of people on the ramp. Ms. Kangalee said “Stop waving that gun
around.” Defendant was in front of Mr. Brown and in his face. Mr. Brown moved around to
block his sister and Ms. Dodge from the Defendant. Mr. Brown then began walking toward the
Defendant and away from the ramp, with his hands up and slightly outward and said “Calm
down. Let me talk to you.” The Defendant was taunting Mr. Brown, and Mr. Brown was saying
“let me just talk to you.” Ms. Kangalee then shouted for someone to get the police (2 police cars
were on the corner), and one of the women on the ramp said “He [meaning the Defendant] is a
cop.” Ms. Kangalee said, “Are you f’en serious?” Ms. Kangalee still did not believe the
Defendant was a cop, but she went to Mr. Brown and said “Stink, come on.” Mr. Brown turned
to speak to Ms. Kangalee and told her to move back. He turned back around toward the
Defendant, with his hands upright and not outward, and the Defendant began shooting. The
Defendant was approximately five feet away from Mr. Brown when he shot him. The Defendant
initially shot Mr. Brown twice. Ms. Kangalee said that Mr. Brown was then trying to push the
gun away while shots were being fired. She went over and then attempted to give her brother
CPR. The Court finds the facts as stated by Ms. Kangalee to be true. One caveat is that the Court
finds the placement of the Defendant and Mr. Brown was slightly to the north of where Ms.
Kangalee placed them, but certainly close enough that that fact does not diminish her credibility
in this Court’s mind.

The Court visited the site of the shooting yesterday. This was by agreement of the parties and -
also by agreement of the parties - I went without them present. What appears to be clear from the
visit is that the area is, in some respects, much smaller than what may appear from the aerial
photos, and in other respects, the photos can be deceiving. From where the shell casings are
located in the exhibits and from the testimony, the Court concludes that the Defendant first shot
Mr. Brown while Mr. Brown was up on the concrete slab shown in Defense Exhibit 13H, and
that the Defendant was standing at the base of the slab near where Marker Number 9 is in State’s
Exhibit 28J. What was also clear to the Court in visiting the site was that from where the
Defendant was standing, there was a clear and very open path to the parking lot. Prior to visiting
the site, the Court believed that the Defendant had his back up against the dumpster, but that was
simply not so. In looking at where the dumpster is located in State’s Exhibit 28L, the entire
parking lot to the south was open. And there was nothing to prevent the Defendant from
continuing to move backward in that direction. The ground from where the Defendant shot Mr.
Brown to where he could have continued moving was completely open. There was flat dirt and
asphalt. From the photos in Defense Ex 13a and State’s 28L, and from this Court’s survey of that
area, there was nothing unsafe or uneven about the surface which would have prevented a
reasonable police officer from simply continuing to back peddle in a southwesterly and southern
fashion when faced with an unarmed man and before resorting to deadly force. Finally, the Court
notes that there was a trail of blood from the slab to the site where the Defendant fell. This can
be seen in Defense Ex.13a and 13i and State’s Exhibit 28J. There may also be a spot of blood on
the concrete slab as seen in Defense Exhibit 10. It does appear that the Defendant shot Mr.
Brown while he was standing on the concrete slab and after he turned back from talking to his
sister. Mr. Brown then fell or moved forward and collapsed at Marker A in State’s Exhibit 28J

The Court rejects the Defendant’s version of the facts that he and the Defendant were locked in a
grip in which the Defendant was attempting to get the Defendant’s gun. There is no blood on the
Defendant’s clothing except for a spot of blood on his shoe. The facts seem to be, as explained
by Ms. Kangalee, that Mr. Brown was pushing the gun away from being pointed at him. This
would more likely be an arms length struggle which may explain the lack of blood on the
Defendant’s clothing. It was however certainly reasonable for the Defendant to be concerned that
Mr. Brown may have been trying to extricate the gun from him and therefore reasonable to shoot
in order to prevent that from happening. But all this occurred after the Defendant had initially
shot the victim.

The Court also does not believe Defendant when he states that he did not see the police vehicles
in which Officers Taylor and Miller were sitting on the northwest corner of Morton and Eager.
When the Court visited the scene yesterday, I stood on the ramp and at the base of the ramp. To
be blunt, you would have to be blind to have not seen those cars and one would only have needed
to shout to get their attention. They were very close to this incident.

The Court also does not believe the Defendant when he testified he identified himself as a police
officer. This is based upon the credibility of Ms. Kangalee, and as corroborated by Ms. Dodge.
Finally, the Court does not believe that Mr. Brown told the Defendant he was a Marine until they
were walking westward on the concrete pad. Mr. Brown was asking the Defendant to put the gun
down, while telling him he was a father and a Marine.

As to the reasonableness of the Defendant’s actions it was certainly not reasonable for the
Defendant to pull his gun at the ramp.1 What had happened to that point was that Mr. Brown had
inappropriately and illegally touched Ms. Ramsay. Ms. Ramsay then spoke to the Defendant,
walked over to smack Mr. Brown and Mr. Brown stopped her from striking him by blocking her
hand. This is the circumstances in which the Defendant pulled his gun. The Defendant did not
advise Ms. Ramsay or one of the other women to go get Officers Miller or Taylor, nor did the
Defendant get them. The Defendant did not show his badge and order Mr. Brown to sit down
while Officers Taylor and Miller were notified. No, he pulled his gun. The standard for when a
police officer should draw his or her weapon is if an officer has a reasonable belief that there is a
threat of death or serious injury to themselves or others. There was no imminent danger to safety
posed at this scene. If Mr. Brown began taking aggressive action toward Ms. Ramsay after she
attempted to slap him, that may have been a different scenario. But that had not happened. The
most aggressive act that any of the individuals took at the site of the ramp was taken by the
Defendant when he drew his gun when it was not at all necessary. Now this Court is aware that
the reasonableness of the actions of a police officer is to be construed from the vantage point of
the officer and not with 20/20 hindsight. But in viewing this from the officer’s vantage point at
the scene, the Defendant grossly overreacted and in fact exacerbated this whole tragic set of
events which led to Mr. Brown’s death. The Court cannot help but conclude that the Defendant
allowed his personal relationship with Ms. Ramsay to cloud his professional judgment and that
he felt obligated to “defend her honor”.

Defendant’s poor judgment is due to some extent by the fact (which the Court now finds as true),
that Defendant was impaired by alcohol. Major Russell stated that the Defendant’s speech was
slurred and his eyes glassy after the incident. Sgt. Wilson testified similarly, but also stated that
Defendant smelled of alcohol. Sgt. Wilson said,
“I would not have let the Defendant drive my car.” The Court rejects Defendant’s testimony that
he had consumed only one beer. Defendant showed all the indicia of being impaired, and he was
impaired while carrying a firearm. In fact, Major Russell took his gun because he believed
Defendant was impaired. Defendant’s impairment and consequential poor judgment can also be
evidenced by his comments to Sgt. Wilson while they were en route to Mercy Hospital and then
the Homicide Division. The Defendant had just killed a man and he wanted to talk with Sgt.
Wilson about the “hot chicks” Defendant was with that night. Defendant’s actions were either
the result of impairment and he was trying in some sophomoric way to impress Sgt Wilson, or
the Defendant has a very warped mind.

1
  The defendant provided a case, Drewitt v. Pruitt, 999 F.2d 774 (4th Cir. 1993), which held that a police officer
may use deadly force prior to showing a badge in certain situations. That case involved a more serious set of facts
than the situation in this case by the ramp.
The Defendant also did not act as a reasonable police officer when he shot Mr. Brown. The
Defendant had been walking backward and Mr. Brown was walking toward him and talking. The
Court would note that up to this point there is no credible evidence that Mr. Brown even knew
the Defendant was a police officer. Mr. Brown was not running toward the Defendant and he was
not lunging toward him. The Defendant was holding the gun on Mr. Brown and there was no
reason the Defendant could not simply have continued walking as he had been until such time as
(a) the two continued to back toward Eager Street, (b) Officers Miller or Taylor were summoned
and responded, or (c) Mr. Brown did something which was more threatening than he had done to
that point. According to the use of deadly force guidelines of the Baltimore Police Department,
deadly force may be justified when confronted by an unarmed suspect if the officer cannot
withdraw without unreasonably exposing himself to danger. The Defendant had an opportunity
to withdraw by continuing to walk backwards. There was no reason for the Defendant to stop
moving and shoot Mr. Brown after Mr. Brown turned away from his sister. A reasonable police
officer would have continued to walk prior to being in a position where he felt the need to shoot
Mr. Brown.

As to whether Mr. Brown or the Defendant was legally the aggressor or the provoker of the
events which led to Mr. Brown’s death, the Court looks to three separate instances of aggression.
When Mr. Brown touched Ms. Ramsay, that was an act of aggression. When the Defendant
overreacted Mr. Brown’s actions, he committed an aggressive act and escalated the situation.
However, when Mr. Brown pushed the Defendant and began walking toward him, he became the
aggressor. The Court therefore concludes the Defendant was not the aggressor or the provoker of
the immediate incident which led to the use of deadly force. However, for the reasons stated, the
Defendant’s actions were not reasonable.

There is one portion of the Defendant’s testimony which this Court does find credible: The
Defendant was afraid. This was corroborated by Mr. Hill’s observations of his face. It is also
supported by the fact that, from the Defendant’s perspective, Mr. Brown was continuing to walk
toward him even though the Defendant had a gun on him, and Mr. Brown was a large man.
Having said that a reasonable police officer would not have used deadly force in that situation
because he could have withdrawn from the situation, the Court is convinced that the Defendant
believed he was in imminent danger. The Court therefore finds that Defendant did not act in self-
defense but did act imperfectly to defend himself.

Therefore, the Court finds the Defendant not guilty of First Degree Murder since the State has
not shown premeditation. The Court finds the Defendant Not Guilty of Second Degree Murder
since the Defendant was acting honestly, but unreasonably, in defense of himself. The Court
therefore finds the Defendant Guilty of Manslaughter and Guilty of Use of a Handgun in the
Commission of a Felony or Crime of Violence.



                                                    _______________________________
                                                    JUDGE EDWARD R.K. HARGADON

								
To top