I have now listened carefully to the entire trial, including closing arguments and jury instructions. I've studied various portions of the trial two or three times. I've also had a long conversation with a close friend who's an attorney to help me clarify my understanding of the elements of criminal intent and malice aforethought.
In the following I will refer to Cyrus Carmack-Belton as the victim because I’ve seen some folks trying to refer to the Chows as the victims.
The evidence shows that:
- The victim entered the store and, without argument, left his backpack at the door as instructed. At that time there was a heavy object in the front pocket of his hoodie. Andy Chow (defendant’s son) admitted on direct examination that he saw the object and had no idea what it was.
- The victim removed four bottles of water from a water cooler, then put them back. He was closely monitored by Mrs. Chow as he returned them, she was no more than ten feet behind him watching him like a hawk. This was also recorded on at least one of the over twenty cameras in the store.
- The victim then walked towards the door, and was accused of stealing the water. He denied it, flapping his hands inside his hoodie pocket as a demonstration. He was not disrespectful and he never threatened anyone by either word or action. After a short interaction he picked up his backpack, walked out the door, and strolled to the right around the corner of the building.
- Andy and Rick Chow hustled out the door after him, and as they came around the corner yelled at him to stop.
- He ran, with the Chows in pursuit. As he ran he lost one of his shoes near the corner of the parking lot; his cell phone was found nearby. Andy Chow testified that saw the victim throw the cell phone, but at least one witness said that the victim was pumping one arm as he ran and holding his pants up with the other hand. I don’t see how those two claims can be reconciled.
- Outside of the store there were multiple witnesses, approaching from both directions along the street. Every witness said that they saw nothing in the victim’s hands.
- The victim fell, which enabled the Chows to catch up. As he scrambled up to continue running he picked up the gun that had fallen out of the pocket of his hoodie. Andy Chow testified that he saw it, yelled at his dad that the victim had a gun, and began to open distance between them. The victim fell again, and as he attempted to scramble up to continue running away Rick Chow (who was behind him) yelled twice to drop the gun, then yelled “no”, and then shot him once. The bullet struck him in the lower back and traveled upwards, hitting his heart, and he collapsed.
- The victim was facing away from Rick Chow when he was shot, in a position consistent with trying to get up and run away.
- Andy Chow testified on the stand that the victim pointed the gun at him prior to being shot, but admittted that he never said that in any prior statement to the police and every other witness who was close to them at that moment denied seeing any such thing.
- Andy Chow testified that the victim’s gun, a Taurus G3, was black with a silver barrel. MY COMMENTARY: The Taurus G3 is black with a silver barrel. With the gun in battery there are two ways to tell that the barrel is silver: you must be able to see either the front of the gun or the ejection port on the side. END MY COMMENTARY
- One of the witnesses immediately on scene testified that the Chows rendered no aid until she told them to.
- No stolen merchandise was found anywhere near the victim, nor anywhere along the path that he ran. He didn't steal anything at all.
In my opinion the only ineffective prosecution witness was Devontae Bryant, on cross-examination he appeared to not be able to fully understand the questions and the defense attorney had a lot of fun trying to corner him into seeming contradictions.
Andy Chow was much worse as a defense witness, he struck me as being repeatedly evasive. He testified that the victim had his back to him while taking things out of the water cooler, but the video evidence clearly shows that he had a direct side view of the victim at the time. On cross he contradicted his own direct testimony, saying that he hadn’t noticed the object in the hoodie when the victim entered the store. When shown a photograph taken from the video he admitted that the unknown object in the hoodie pocket didn’t look like a water bottle. He tried to deny that he chased the victim at all, that he was merely trying to see where he was going so that meant it wasn’t a chase. I did not find him to be very credible.
The defense made much hay about the victim’s unlawful possession of the gun, but that’s completely irrelevant because
- the Chows had no idea that he had it, and
- he never threatened them in the store, and
- even if he had, as soon as he left the threat that didn’t happen was over.
The defense made much about the tac-light that was attached to the victim’s gun, using silly arguments about how it proves murderous intent to possess a commonly used instrument that assists in the safe use of a firearm. In addition to being silly, it’s completely irrelevant. The defense made a big stink about how it was suspicious that the victim had no cash with which to buy anything, as if the Chows had a way to know that he had no cash and as if in 2023 there was no such thing as paying for things with a cell phone app. In closing the defense continually presented facts that the Chows could not have known as if they had known them, in an attempt to use them as reasons they suspected the victim of the shoplifting that he did not commit.
In summary:
The Chows had no good reason to think that the victim had stolen anything, so they had no shopkeeper’s right to pursue or detain him.
The victim absolutely never threatened anyone inside the store, and even if he had the Chows had no reason to think that 1.) he was able to carry out the threat that never happened, or 2.) that he was about to do so. This means that they had no self-defense claim. And even if he
had threatened them with the ability and apparent intent to carry out the threat, the threat that never happened would have ended when he left the store, and with it their right to defend against it.
When the Chows began to chase the victim down, they themselves became the aggressors engaging in an unlawful assault. The victim had every right to pull his gun out on them and point it at them in self-defense, but it’s not at all clear that he actually did that because the only people who say that it happened are the victim’s assailants: the Chows.
Rick Chow’s use of deadly force had no justification in self-defense and was absolutely unlawful. In fact, the only person on scene who had the right to self-defense was the victim, Cyrus Carmac-Belton. IMO the most likely thing is that the victim started running in order to avoid being caught with the gun and wanted nothing more than to just avoid that, otherwise he would have started shooting first.
The only difficulty I might have had was with the elements of criminal intent and malice aforethought, and I was very interested in hearing the judge’s instruction on that. The judge said
“criminal intent is an act of conscious wrongdoing; you must determine what the defendant intended to do based on the circumstances existing at that time. Criminal intent can arise from action or a failure to act. It may arise from negligence, recklessness, or an indifference to duty, or to consequences that are considered by the law to be the equivalent of criminal intent.”
Criminal intent does not require that you know that the thing you're doing is a crime. It’s obvious to me, and I think it should be obvious to
anyone, that the Chows had a duty to know whether or not Cyrus had stolen anything before they started chasing him down, that they were indifferent to that duty, and that they were negligent in not attending to it. This absolutely shows the element of criminal intent.
Re. malice aforethought, the judge further instructed that
“malice is hatred, ill-will, or hostility towards another person.
It is the intentional doing of a wrongful act without just cause or excuse, and with an intent to inflict an injury under circumstances that the law would infer an evil intent. Malice aforethought does not require that malice exist for any particular time before the act is committed, but malice must exist in the mind of the defendant just before and at the time the act is committed. Therefore, there must be a combination of the evil intent and the act. Malice aforethought may be expressed or inferred; these terms “expressed” and “inferred” do not mean different kinds of malice but merely the manner in which malice may be shown to exist. That is either by direct evidence or by inference from the facts and circumstances which are proved. .... Malice may be inferred from conduct showing a total disregard for human life. If facts are proven beyond a reasonable doubt sufficient to raise an inference of malice to your satisfaction, this inference would simply be an evidentiary fact to be considered by you along with the other evidence in the case, and you may give it the weight that you decide it should receive.
I say yes to this as well. There are only two possible intentions in using deadly force: stop the threat, or kill the person being shot. In a lawful use of deadly force, lawful intent is to "stop the threat”. An intent to “kill the bad guy” is NOT lawful intent. But Chow’s use of deadly force wasn’t lawful: he can’t claim that his intent was to stop the threat, because he and his son
were the threat. THEY were the unlawful aggressors. So we’re left with him unlawfully using deadly force with the intent to kill, which means that in line with the jury instructions we must infer that his intent was to kill the victim. By definition, that's malice aforethought. QED.
The jury absolutely got it wrong, they should have found Rick Chow guilty as charged and it would have been a hung jury if I had been in the room. I don’t know why the jury found otherwise, but I can’t think of any reasons that reflect well on them. There's no way that they could adequately consider the evidence in the short time they were deliberating, and in an effort to be charitable I'll take it that they were just being careless.
I extend my deepest condolences to the Carmack-Belton family, and wish them well in their civil lawsuits.
