It's obvious that the Court of Appeal is taking this murder conviction really seriously. Justice Humes authors an opinion that includes a deep dive into the evidence. Really deep. Notwithstanding how overworked the Court of Appeal is and how easy it is to just rely on deferential standards of review, it's great to see an appellate court so obviously understand that someone's life is at stake (i.e., here, 80 years in prison) and making sure that the evidence sufficiently supports the conviction.
There's lots -- lots -- in here that I agree with. And Justice Humes does a masterful job of showing why the key piece of evidence of premeditation (a text message) is, in context, far different than the manner in which it was used at trial.
Though even though I'm profoundly impressed by Justice Humes' analysis, I nonetheless wanted to push back on that central point a tiny bit.
My strong sense is that there was indeed no premeditation and that this was merely a robbery or gun sale gone bad. Wear (the defendant) and his friend (Lowell) wanted to steal a gun from a guy they didn't like that much anyway, so set up a meeting to buy the gun. That's why, in the middle of the whole thing, Wear texted his girlfriend, who had sent him several texts without response: "I'm hitting a lick; stop." (I cleaned up the spelling and punctuation.) "Hitting a lick" is slang for getting a nice payday -- typically by robbing someone or the like. So that strongly supports, in my mind, that Wear and his friends weren't just going to buy the gun, but were in fact planning on ripping the seller off.
Thank goodness we know slang.
The text that purportedly shows premeditation, by contrast, isn't nearly as clear. Justice Humes does a great job (on pages 20 to 21 of the opinion) of showing the background of that text in the context of the ongoing "text-fighting" between Wear and his girlfriend. What the prosecution seized upon was one of those texts, in which Wear says (and I quote it in full): "I gnna have thatvbigga in hedward killed tay is
aready stalkin,him,waiting,til I saybsnoke en."
First off: Prosecutions would be much easier if perpetrators actually learned to text (and spell) properly. What a pain to have to decipher this all.
But this text probably means something like "I'm going to have that guy in Heyward killed" and that "Taylor is already stalking him, waiting, until I say to kill (smoke) him." Which, as Justice Humes points out, is absurd, at least if interpreted (as the prosecution claimed) as a comment about plans to kill the victim. Taylor (a woman) was a friend of that guy, and was in no way, shape or form actually stalking the guy -- much less planning to kill him. Nor was that anything like what actually went down, in which the victim was shot during a gun deal.
Rather, Justice Humes seems right to me when he says that the "guy in Heyward" to whom Wear was referring was probably an ex-boyfriend of his girlfriend. Particularly since the whole context of this text exchange was about how the girlfriend had alleged been flirting with someone on Facebook, Wear had seen these exchanges, the girlfriend had blocked Wear on Facebook and Wear demanded to be reinstated, etc. In context, it seems crazy -- or, as Justice Humes puts it, "borders on the absurd" -- to suggest that in the middle of a fight with his girlfriend about her alleged flirtations on Facebook and his status therein, Wear suddenly decided made a random (and totally untrue) statement about his intentions to kill an unrelated person (the victim) with help from Taylor O. Completely crazy.
That assessment makes a lot of sense to me. With one substantial caveat.
That something seems crazy to us outsiders may not necessarily indicate that it didn't happen. At least in this context.
It bears mention that Wear is a huge heroin- and pill-head. As were most of the participants in this botched gun sale/drug deal/whatever it was. So, for example, while the text messages sent to Wear by his girlfriend during their "text fight" are rational and make total sense, those sent by Wear most definitely do not.
Check out, for example, Wear's first text message. His girlfriend texts him something that makes sense, saying: "I’ll start acting right as long as you do to cause the shit you
do back to me is ten times worse and hurts me so much it
makes me want to stop loving you and that’s hard cause i got
so much love for you. Your my everything thing." To which Wear responds:
"I dont have fCd vikn abtnddbcdibt"
What?! That makes zero sense.
And do you know why it makes zero sense. Because the guy is totally high. So either his thoughts are unformed or his texting fingers aren't working very well or, most likely, both. A thought that not only occurs to me -- an outsider reading the text messages in retrospect -- but that did not escape his girlfriend either, who (accurately) responded to this nonsensical message by saying: "Wait wat? James did you take more pills?"
So then there's one more somewhat fuzzy text message by Wear and then, immediately thereafter, the disputed text saying "I gnna have thatvbigga in hedward killed tay is aready stalkin,him,waiting,til I saybsnoke en."
The point is this: Yes, it'd be remarkably random for Wear to interject in a text fight about flirting with people over Facebook that he intended to kill some random guy not involved at all in the whole Facebook dispute. But, at the same, time, Wear was, I suspect, totally and completely out of it. And guys totally and completely out of it sometime say things that are random and totally and completely out of it. That are not responsive at all to the underlying context of the conversation. But that, when viewed in the light most favorable to the prosecution, may nonetheless provide some support for their theory.
So I think that Justice Humes might have wanted to keep that in mind when saying that it'd be totally "absurd" for the conversation to refer to the victim rather than to some ex-boyfriend or the like. Yes, given the context, it'd be absurd. But perhaps not so absurd given the deteriorated mental state of the person making the comment.
Now, in the end, I still think that Justice Humes is right. Though I come to that conclusion not only for the reasons Justice Humes says (context) but also for another reason that isn't mentioned in the opinion but which seems like it might be relevant.
The disputed text message at issue says "I gnna have thatvbigga in hedward killed tay is aready stalkin,him,waiting,til I saybsnoke en." Justice Humes talks about how it doesn't make any sense that "Tey" (Taylor) would be stalking the victim, so it probably doesn't refer to him, and, again, that may well be right.
But the first part of that text message also perhaps provides a hint to the person to whom Wear intends to refer. That first part says: "I gnna have thatvbigga in hedward killed." Now, "gnna" is surely "gonna," and I strongly suspect that "thatvbigga in hedward" is a fat-fingered reference to the race of the relevant person. Since "vbigga" is, on the keyboard, very close to a different word -- the keys "vb" being right next to the "n". So I suspect that Wear meant to type that he was going to kill a "n***a" in Heyward. Which may provide a clue to the race of the individual to whom Wear intended to refer. Particularly since, in context, Wear was talking about the individual(s) with whom the girlfriend was allegedly flirting. A context highlighted by the very next text message from Wear after the disputed one, in which he says: "YOU ARE GETTING ALL THE NIHGAS OFF
YOUR FB OR I SWEAR ILL,THROW URBSHIT
OUT." I suspect that "NIHGAS" refers to the same word as before, and that Wear was indicating that he wanted them deleted from her Facebook ("FB") page, including but not limited to the one whom "Tay" was allegedly stalking and who he was going to have killed. A context that perhaps the girlfriend also understood, since she responded: "Then you doin the same wit females" followed by "And you are not ever talk to that fat bitch again james."
And, as far as I can tell, the victim in this case -- Ryan Rossknecht -- was not African-American.
Given the context of the other text messages, then, I think that the chances that Wear was randomly spouting off a reference to intending to kill Rossknecht is extraordinarily unlikely. And that to find such a reference beyond a reasonable doubt would be even more unfounded.
So, in the end, not only is this a thoughtful and exhaustive opinion, but I think it likely to come out the right way. I am confident that Wear did indeed kill Rossknecht. But it's clear that Wear did so only immediately after Rossknecht shot and killed the friend (Lowell) that Wear brought along to do the gun deal/ripoff, after a struggle for the weapon in the car. Was it during a robbery? Probably. Was that the plan at the outset? Almost certainly not. Much less beyond a reasonable doubt.
Wear and Lowell probably just planned on taking a gun from Rossknecht (rather than paying for it), and thought they'd just grab it -- they didn't bring a weapon themselves. They met in a public place, Rossknecht somehow figured out the plan, and shot and killed Lowell with the relevant gun (which Rossknecht himself brought to the transaction), and then seeing his friend shot and killed, Wear took the gun from Rossknecht and killed him with it. That's a crime, to be sure. But not necessarily the one for which at least of some of the jury thought that Wear was guilty beyond a reasonable doubt.
My read, anyway. Given the context, and in light of all the applicable evidentiary, appellate, and legal rules.
