Judge reverses conviction of man who shot neighbor outside home, says prosecutor misstated the law
For the second time in 25 years on the bench, he says, a Washington state judge has granted a defense motion for a new trial.
This time, the case involved the Nov. 25 felony assault conviction of a former graduate teaching assistant at Western Washington University. Hearing unusual noises outside their Bellingham home one night in May 2013, Kamuran Daniel Chabuk and his fiance went to investigate. Chabuk brought a cellphone, a flashlight and a loaded gun for which he had a concealed-carry permit, reports the Bellingham Herald.
Outside, a few hundred feet away, the couple encountered neighbor Joshua Mark Kiener, who was roughhousing with friends. After questioning the group, Chabuk testified, he decided nothing was wrong and tried to leave. But at that point Kiener, who had been drinking but was unarmed, started following him, wrote Superior Court Judge Ira Uhrig in his opinion.
When Kiener got within about 20 feet of Chabuk, the defendant—after warning him that he was now on private property, suggesting that he leave and urging someone to call 911—shot Kiener three times. Chabuk claimed he acted in self-defense.
However, at trial, prosecutor Dave McEachran told the jury that Chabuk was legally required to warn Kiener he was armed and ready to shoot him. That never occurred, the judge wrote, but the law does not actually require such a warning.
Additionally, the judge said, the state incorrectly described the evidence by portraying Chabuk as more aggressive than he was.
“The state attempted to characterize all of Chabuk’s actions as being an effort to confront, to provoke, and to incite anger, and did so throughout the trial, including closing argument, and repeated this characterization at the motion for a new trial,” the judge wrote
Due to unfair prejudice, he granted Chabuk a new trial.
McEachran plans to appeal. He told the newspaper that he had simply explained to the jury that Chabuk had options, such as calling 911 at the outset or retreating into his home, other than shooting Kiener.
