Monson Man Convicted in Self-Defense Dog Shooting

[RichM]

Is anyone else following this?

ETA: Updated in post 34

Trial begins in case against Erwin Markham of Monson, accused of shooting neighbor's rottweilers

Trial begins in case against Erwin Markham of Monson, accused of shooting neighbor's rottweilers
by The Republican Newsroom
Tuesday September 15, 2009, 9:15 PM

By LORI STABILE
[email protected]

PALMER - After nearly two days of jury selection, the trial for Erwin C. Markham III, the man who shot two rottweilers, killing one, began Tuesday in Palmer District Court.

Markham, 27, of Monson, was charged by Monson police with two counts of animal cruelty and one count of discharging a firearm within 500 feet of a dwelling in connection with the June 2008 incident.

Markham sat silently alongside his lawyer, Jeanne A. Liddy.

Prosecutor Howard I. Safford said Markham killed Michael D. Facchini's dog Jerry and gravely wounded his other dog, Garcia.

Safford said Facchini was taking items into his Blanchard Road house, which is next door to Markham's parents' home, when the dogs went outside. He said Facchini heard gunshots and a dog yelping.

Concerned for his dogs, Facchini called for them, and saw Garcia in his driveway, "bleeding profusely from his neck."

Shortly after the shooting, Safford said Monson police received a 911 call from Markham, who reported the incident, telling the dispatcher he used a shotgun on the animals. He told police the dogs had been on his deck and that he was not injured, Safford said.

When an officer arrived, Markham told him one of the dogs lunged at him, while the other growled, Safford said.

Safford said that Markham told police he fired a shot in the air and more shots as the dogs ran away. Jerry was found dead about 90 feet away from the deck.

"The dogs began to run. That wasn't enough ... At a great distance away, he continued to fire," Safford said.

"Evidence will show you ... that the defendant wasn't justified in doing what he did," Safford said. "There was no self-defense in this case."

"There are two sides to every story," Liddy said. "This is a case about terror and self-defense, a case about vicious, huge dogs with large teeth and no visible collar. ... These were dogs that were let loose in my client's yard."

Liddy painted a different picture of events. Liddy said the male rottweilers were on the Markhams' deck, growling and snarling, and that one reared up on Markham's chest, knocking him down, terrifying him. She said Markham scrambled inside and grabbed the gun and started firing wildly through the broken storm door. She said Markham was worried the dogs were going to come through the door.

She said her client was at the house because he was dog-sitting his parents' dog.

"They were shot because my client was defending himself," Liddy said. "He thought they were coming after him, into his home."

Facchini appeared to become emotional when looking at photographs of Jerry and Garcia that Safford showed him. Facchini described them as friendly, although he did say that Garcia once bit a girl.

Facchini also said that he had only been living in Monson four days when the shooting happened. He said Garcia was in the veterinary hospital for about 20 days and had several surgeries, totaling $15,000, to save his life.

"I did not think he would make it," Facchini said.

Testimony is scheduled to continue Wednesday.

... I'm fairly sure that the dog owner is posting his own comments using several different names and accounts. One of the posters is the father of an 8-yr-old girl previously attacked by these dogs.

The trial should go to the jury on Friday.

 

[Viper22]

It doesn't look too good for the dog owner, being that one of the dogs had a history of being aggressive.

 

[jaypap]

Leash law and I'd like to shoot the ones taking a crap on my lawn.

 

[Kaos116]

Leash law.

Yup.

 

[CRSIII]

Jerry? Garcia? Rottweilers? Someone had the wrong idea.

 

[Mil-Dot]

Garcia was in the veterinary hospital for about 20 days and had several surgeries, totaling $15,000, to save his life.

 

[atmay]

§ 156. Killing dogs under certain conditions; wounded dogs

Any person may kill a dog which suddenly assaults him while he is peaceably standing, walking or riding outside the enclosure of its owner or keeper; and any person may kill a dog found out of the enclosure of its owner or keeper and not under his immediate care in the act of worrying, wounding or killing persons, live stock or fowls, and if any person shall kill or attempt to kill a dog so found, and in the act of worrying, wounding or killing persons, live stock or fowls, he shall not be held liable for cruelty to the dog unless it shall be shown that he intended to be cruel to the dog, or that he acted with a wanton and reckless disregard for the suffering of the dog. Prompt killing of a wounded dog, or a prompt report to the owner or to a dog officer of the wounding of the dog, shall be considered evidence of sufficient regard for the suffering of the dog.

.

 

[Larry Legend]

Doesn't look good for the dog owner. Two rotties on someone elses porch. One with a history of aggression. Owner of dogs not in site. Sucks that he laid down that much money to save the other dog. I still don't understand how people can spend large amounts of money on a pet.

 

[Smiles1014]

Doesn't look good for the dog owner? F*** him

Why the heck was this guy charged in the first place? Dogs not on a leash on the neighbor's property not being friendly, fire away...

I would consider a dog a threat when it started running towards me. Am I supposed to read its mind for its intentions once it gets to me? And they were two BIG dogs at that...

 

[jobowker]

I'm all for staying out of other people's lives, but when your actions start to screw up my chi, then you have crossed the line. I may or may not have reacted differently, but if you are stupid enough to let two large Rottweilers charge onto someone else's property, especially if they don't know the dogs very well, then don't be surprised if something bad happens to them.
I feel bad for the dogs, and for the guy who shot them.

 

[RichM]

The dog owner is a well-connected attorney, and he has insisted that the case go to trial. The local police chief has told the family that it shouldn't have gone this far and the original prosecutor tried to drop it and got replaced by the District Attorney.

The dog owner has already had the family served with a civil suit as well...

 

[Realtor MA]

Did he go in the house to get the gun and then back out to shoot?
The jury may not like that!

 

[Palladin]

Doesn't look good for the dog owner? F*** him

Why the heck was this guy charged in the first place? Dogs not on a leash on the neighbor's property not being friendly, fire away...

I would consider a dog a threat when it started running towards me. Am I supposed to read its mind for its intentions once it gets to me? And they were two BIG dogs at that...

+1

 

[Bob P]

Did he go in the house to get the gun and then back out to shoot?
The jury may not like that!

No, the article says he shot through the screen door at them as he was afraid they were coming through the screen after him

 

[Friday]

what an ass. You're in town for 4 days, and let your large, unknown rotties next door to the neighbors? (who weren't likely even aware they had moved in) Boom-Boom, bye-bye.

Interesting about the discharge offense. Does this mean that any time we defend ourselves on our property or within our home, we're getting slapped with a 500' violation by the 5-0?

 

[cmdwolf]

It is an add on charge. If he shooter wins the self defense it should cover the other charge. Then again is is assachussets..

 

[rep308]

Garcia was in the veterinary hospital for about 20 days and had several surgeries, totaling $15,000, to save his life.

Wow! I guess I'm not an animal lover. I got heart burn spending $75 on my kids guinea pig.

 

[namedpipes]

There seems to be information floating around that isn't in the article, but the bottom line is, if the guy was attacked (and there is no apparent evidence that he was not) then he had a right to defend himself.

Dogs are wonderful companions but when they are aggressive to someone, be prepared when they react.

$15k to

(someone just drove slowly down the street with a flat tire... wouldn't you think they would stop and change it?)

$15k to save the dog's life? He should have invested the $15k in a fence to keep in his next dog.

 

[Speedway]

The dog owner is a well-connected attorney...........The dog owner has already had the family served with a civil suit as well...

Figures......

If any dogs charge at me or my family in a threatening matter, the cops will be counting the spent shell casings. And I won't have to run inside to arm myself either.

 

[Dman]

If he could make it into the house and get his shotgun, he could have SHUT the door behind him. If the dogs broke down the closed door, not the screen, then they surely wanted to kill this guy and surely shoot away.

I didn't see anything in the article that said, he purposely let the dogs outside. Did he let them outside free because he wanted to be lazy or did they escape out?

 

[Rob Boudrie]

I wonder what kind of plea bargain they offered the attorney defendant? He must be pretty confident of a win to take it to trial.

As to "could have closed the door behind him" - the MGL on dog shooting is pretty specific about the types of behavior that create the legal justification for shooting a dog, and the chances that an attorney would make a statement that admitted to acting outside the scope of MGL would be slim. No where in the relevant statute does an obligation to retreat, or not enter any area of one's own property, appear. If this case is decided on law, and the dog were in fact worrying him, he should be found innocent. If the case is decided on emotion, he will get screwed.

I wonder if "for cause" jury exclusions were granted based on either dog ownership or gun ownership on the part of potential jurors.

 

[TheIglu]

By those justifications of the law, I could lawfully shoot every single dog in my sparsly populated neighborhood.

When they come to visit, they often get excited and jump up. It's a natural thing for a dog to do, they want to greet nose to nose. Who knows the intent of the dog. Hard to think they were being aggresive about their property being there 4 days total. Then again, who knows? Only the dogs.

Had the neighbor been there a month or two, fine. Shoot the dogs. But 4 days? Shut the door and give the guy one chance to keep his dogs in the yard. If I shot everything that went through my screen door, I'd have a pile of dead pets on my front step.

Being the guy an attorney, I'm willing to bet he's an idiot and deserves to get his rear end handed to him in court. Unfortunate that people like that own dogs who bear the burden of their irresponsible owners.

 

[Tara]

Too many unanswered questions in this story. Does he have a right to defend himself against aggressive dogs? Absolutely. But I wonder if the jury will like the fact that he went in to get his gun and shot the dogs anyways, instead of locking himself in the house and calling the cops. Surely he didn't have JUST a screen door on the house.
And what kind of jacka$$ lets his dog roam at large when they've lived there for 4 days? The dogs aren't used to their surroundings, it seems normal they'd take anyone as a threat.
I just hope the guy that had to kill the dog doesn't get punished. With that dogs history of biting a CHILD, I think it's fair to say he has the potential to be a very large threat to anyone else.
I feel bad for the dogs but I feel worse for the guy who had ot shoot them.

 

[TheIglu]

Unfortunately for any untrained or young dog, biting a child could have been a instance of well intentioned play. Then they are marked for life.

I don't envy the jury, they will probably have to decide the "intent" of the dogs without ever seeing what happened.

We had a similar incident in my neighborhood last year. An aggressive dog bit a well mannered dog being walked in front of it's house. Neither were on leash at the time.

Now the dog doing the biting is dead (shot by the owner for fear of lawsuits) since the owner wouldn't split the vet bill to get the wounds of the other dog taken care of.

People are morons with dogs. Both in responding to them and owning them. They aren't people, they don't think like us. People just don't grasp that concept.

 

[Realtor MA]

Well it's going to be interesting. If I were the shooter I would be very afraid of that jury. They tend to have more sympathy for animals these days.
Not to worry. When the shooter gets out of jail he can probably get a job in Philadelphia. The Eagles will welcome him with open arms.

 

[kiver]

Please post how this turns out

 

[Rob Boudrie]

The defendant should be terrified of the jury, since he is betting his record on their understanding of the law, and believing his side of the story.

If the jury follows the law, they will not get into the "intent" of the dog, just determine if the dog attacked or worry the defender as described in the MGL on doggie shooting.

Case law recently established that someone using a delf defense claim may introduce evidence of violent behavior on the part of the alleged agressor - I wonder if that will apply to this dog case as well.

 

[Bob P]

By those justifications of the law, I could lawfully shoot every single dog in my sparsly populated neighborhood.

When they come to visit, they often get excited and jump up. It's a natural thing for a dog to do, they want to greet nose to nose. Who knows the intent of the dog. Hard to think they were being aggresive about their property being there 4 days total. Then again, who knows? Only the dogs.

Had the neighbor been there a month or two, fine. Shoot the dogs. But 4 days? Shut the door and give the guy one chance to keep his dogs in the yard. If I shot everything that went through my screen door, I'd have a pile of dead pets on my front step.

Being the guy an attorney, I'm willing to bet he's an idiot and deserves to get his rear end handed to him in court. Unfortunate that people like that own dogs who bear the burden of their irresponsible owners.

In MA a dog (or other animal) owner or keeper is strictly liable for the actions of that animal. A dog jumping up on someone and injuring them - even a friendly jump - puts the owner/keeper at fault.

MA law favors the human over the animal. Moral of the story? Keep your dog on a leash.

 

[Pete85]

§ 156. Killing dogs under certain conditions; wounded dogs

Any person may kill a dog which suddenly assaults him while he is peaceably standing, walking or riding outside the enclosure of its owner or keeper; and any person may kill a dog found out of the enclosure of its owner or keeper and not under his immediate care in the act of worrying, wounding or killing persons, live stock or fowls, and if any person shall kill or attempt to kill a dog so found, and in the act of worrying, wounding or killing persons, live stock or fowls, he shall not be held liable for cruelty to the dog unless it shall be shown that he intended to be cruel to the dog, or that he acted with a wanton and reckless disregard for the suffering of the dog. Prompt killing of a wounded dog, or a prompt report to the owner or to a dog officer of the wounding of the dog, shall be considered evidence of sufficient regard for the suffering of the dog.

They need to prove beyond a reasonible doubt that he intended to be cruel to the dogs, which I highly doubt they will be able to, since by the dog owner's own admission, the dogs were out of his sight and he called them back when he heard the gunshots. If the defendant continued to fire as the dogs ran away, he could claim, per letter of the law, that he was doing so intentionally to not be cruel to the dogs since killing them quickly is proof that you did considder the dog's suffering. Open and shut case.

 

[Palladin]

I'm amazed they didn't charge him for unlawful storage of the shotgun.