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Man Gets 120 Days for Shooting Cyclist in the Head

Lightdemon said:
Two things that are questionable. 1) Firing a "warning shot," inside the car, in the direction of the bicyclist, so close to the bicyclist that it hits his helmet.
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Questionable in regards to an individuals conduct and state of mind... sure.
Questionable in regards to it being a possible scenario... I disagree.


Lightdemon said:
2) You forgot to cite this paragraph (link):
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Hmmm?
My bad.
I originally had it underlined before posting.
I must have edited out that portion of the sentence of the second paragraph when I edited out the first paragraph. That was unintentional.
But that portion is why I underlined the last sentence of the last paragraph pointing out why what was charged was changed.
Again, my bad.


Lightdemon said:
I'm not sure what constitutes as a "warning shot" but I'm pretty positive it doesn't include the intent to kill./sarcasm
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Of course a 'warning shot' doesn't include an intent to kill.
To me, attempted murder means that you intended to kill. So why the different charge?
If you notice in the underlined last sentence, of the last paragraph as quoted, pointing out that the greater charge requires the elements of intent be found.
"... requires a trial jury to find the elements of premeditation and deliberation."​
If they could have proven intent to murder (which is killing), they would have charged it.
I can not see them including that statement if the lesser offense required the same elements to be proven, meaning to me, that what was charged is an implication (that doesn't have to be proven) of what happened, not what actually happened.


FYI
As one group of Attorneys put it.
An assault can be an unlawful touching, or it can be an act in which the victim is never touched, but is put in imminent fear of being touched. A touch is a general word, meant to describe everything from a slap to a strike with a bat, to worse.

In North Carolina, there are dozens of different kinds of assaults. Some are misdemeanor assaults; the lowest is a Class 2 misdemeanor which can put someone on probation for 12 months.

Others are very serious felonies, including the most serious assault, Assault With a Deadly Weapon With Intent to Kill Inflicting Serious Injury (AWDWIKISI), which is a Class C felony, with a minimum sentence of 44 months (bottom of the mitigated range for a person with no prior convictions). Attempted First Degree Murder is arguably an assault, but is handled under homicides.

In general, assault is not defined in the statutes, but by North Carolina’s courts. The statutes merely establish the punishment once an assault has been proven. (See N.C.G.S 14-33 for Misdemeanor Assault punishments.)
...
The Chetson Firm - North Carolina Assault Law
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Can you tell me what other assault charge would have fit the described offense by the testimony given, under North Carolina law?

North Carolina General Statutes
Chapter 14: Criminal Law
Article 8 - Assaults
Chapter 14 - Article 8​

Apparently they don't specifically have a charge under 'Assault' that includes the discharge of a weapon in a manner that underscores the seriousness of the action in this instance.
Apparently the name of the offense does not mean exactly what occurred.



Lightdemon said:
Coolguy said:
And what the prosecutor says.
"... the prosecution, said he had no quarrel with the sentence handed to Diez.

“The outcome was fair,” he said. “We respect Judge Down's decision."​
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This just meant that the prosecution thinks that the process of the trial was fair (not that the sentencing was fair), that there wasn't anybody pulling strings or the jury was skewed. The prosecution also thought the sentencing was light.
We think the sentence is light, but we expected it coming in… because of his outstanding career as a fireman.
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I have to disagree with your take here because;

1.) It is a misquote; The portion you quoted is what the cyclist said, not the prosecutor.
2.) The prosecutor said 'he had no quarrel with the sentence handed to Diez.'​


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bicycleman said:
Yeah, this fireman should have gotten at least 25 years for attempted murder.
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I strongly disagree. He didn't make an attempt to murder him.

bicycleman said:
That's what you call the "good ol' boy" network, looking out for its own.
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I think it is more of the way NC's laws are, than any imagined 'good ol' boy network'.
 
danarhea said:
What the hell? Only 4 months for attempted murder? The judge cited his honorable service in military, his position as a firefighter, and his all around good guy image, as mitigating factors. You know what? I don't give a damn. He shot a guy in the head. The guy is lucky his bicycle helmet took the bullet, sparing his brain.

I don't care if it is Jesus Christ who shoots someone in the head, in an act of attempted murder. He should do hard time. Someone please shoot the judge, then let's see if that judge would be just as lenient. LOL. Seriously, though......

1) The shooter belongs in prison.

2) That judge does not belong on the bench.

Discussion?

Article is here.
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wow......could have killed the child, and he gets 120 days? crazy ****.
 
liblady said:
wow......could have killed the child, and he gets 120 days? crazy ****.
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What do you mean... "could have killed the child"?
That seems more like an emotional response than one based on fact.

Secondly if you had read what came earlier you would have known that he received much more than 120 days, which was suspended, unless he commits another crime within the period of his probation.
 
Coolguy said:
Questionable in regards to an individuals conduct and state of mind... sure.
Questionable in regards to it being a possible scenario... I disagree.
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No, I'm saying questionable because I think he's lying about it being a "warning shot". I don't understand how it can be a warning shot if he shot at someone's head...A warning shot would be shooting the ground or shooting the sky, not at someone head. Even pointing the gun at the cyclist would have been enough, since he approached Diez and stood in front of his driver side window, which he was able to grab at Diez's shirt; that would have been point-blank range.

The warning shot just doesn't make sense. I mean really... if you feel threatened, just put your foot on the gas. If your car is off, roll up your window. Where does he get the justification for firing a gun at point blank range as a "warning shot"?


"... requires a trial jury to find the elements of premeditation and deliberation."​
If they could have proven intent to murder (which is killing), they would have charged it.
I can not see them including that statement if the lesser offense required the same elements to be proven, meaning to me, that what was charged is an implication (that doesn't have to be proven) of what happened, not what actually happened.
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I guess it's just how North Carolinian's sees things. Personally, I would not have reached for my gun as my first line of defense, especially not in my car, which is quite a safe place to begin with. Shooting a person at point blank range and calling it a warning shot, and claiming you had no intention to kill the other person, where you were the one who instigated the quarrel in the first place, just raises so many red flags...


Apparently they don't specifically have a charge under 'Assault' that includes the discharge of a weapon in a manner that underscores the seriousness of the action in this instance.
Apparently the name of the offense does not mean exactly what occurred.
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Hopefully NC will make the proper changes.

I have to disagree with your take here because;

1.) It is a misquote; The portion you quoted is what the cyclist said, not the prosecutor.
2.) The prosecutor said 'he had no quarrel with the sentence handed to Diez.'​
[\quote]

I don't think there is a need to differentiate because that's beside the point. What Diez received as his sentence was light, a slap on the wrist. That's what all this outrage is about. If Diez had shot 1 or 2 inches closer to Simmon's head, he would have sustained serious injury, over a questionable "warning shot."
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danarhea said:
1) The shooter belongs in prison.
2) That judge does not belong on the bench.
Discussion?
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In August, a grand jury reduced charges against Diez from attempted first degree murder to felony assault. This is probably correct, as first degree murder, attempted or otherwise, requires premeditation. Nothing indicates that this is the case.
 
liblady said:
wow......could have killed the child, and he gets 120 days? crazy ****.
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We punish people for what they "could have" done?
:shock:
 
Lightdemon said:
No, I'm saying questionable because I think he's lying about it being a "warning shot". I don't understand how it can be a warning shot if he shot at someone's head...A warning shot would be shooting the ground or shooting the sky, not at someone head. Even pointing the gun at the cyclist would have been enough, since he approached Diez and stood in front of his driver side window, which he was able to grab at Diez's shirt; that would have been point-blank range.
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i dont think it would be very easy to fire a warning shot anywhere in a car than outside the nearest window, which, in this case, would have been the window in which the cyclist was standing.

but i think the use of a gun at all was quite excessive though
 
Lightdemon said:
No, I'm saying questionable because I think he's lying about it being a "warning shot".
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You think he is lying? Why? Because he committed a crime to which he admitted?
Why?
There is no reason to disbelieve him.
You really have no evidence not to. Nor do I have any evidence to just take his word for it.
What we do have is a limited take of the Judges view of the individual resulting in the Judge handing down a 'suspension of sentence'.
That is noteworthy in regards as to whether or not the Judge may have believed him.

But like I have already said, we don't have all the information/evidence.



Lightdemon said:
I don't understand how it can be a warning shot if he shot at someone's head...A warning shot would be shooting the ground or shooting the sky, not at someone head.
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All I can say in regards to is, it is because you are still assuming that he was intentionally aiming at his head instead of the other possibilities.



Lightdemon said:
Even pointing the gun at the cyclist would have been enough, since he approached Diez and stood in front of his driver side window, which he was able to grab at Diez's shirt; that would have been point-blank range.

The warning shot just doesn't make sense. I mean really... if you feel threatened, just put your foot on the gas. If your car is off, roll up your window. Where does he get the justification for firing a gun at point blank range as a "warning shot"?
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How one person reacts is different from how another person will.
You are substituting what you think should/would have happened in relation to how you see things.
Not as to how they occurred.



Lightdemon said:
I guess it's just how North Carolinian's sees things. Personally, I would not have reached for my gun as my first line of defense, especially not in my car, which is quite a safe place to begin with. Shooting a person at point blank range and calling it a warning shot, and claiming you had no intention to kill the other person, where you were the one who instigated the quarrel in the first place, just raises so many red flags...
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How you react is different than how others react.

To me there is a difference in degree when it comes to yelling at someone or confronting them face to face. The later being a greater 'instigation' than the former, and more threatening than just some idiot yelling.


Lightdemon said:
I don't think there is a need to differentiate because that's beside the point. What Diez received as his sentence was light, a slap on the wrist. That's what all this outrage is about. If Diez had shot 1 or 2 inches closer to Simmon's head, he would have sustained serious injury, over a questionable "warning shot."
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Of course there is a need to differentiate between what the prosecutor said and what the victim said. Especially when the two are miles apart.

And it is not beside the point when the Prosecutor states that 'he had no quarrel with the sentence handed to Diez.'. It is a clear indication that the sentence was proportional.

You seem to think that the sentence, which was within the guidelines is somehow light or a slap on the wrist. A sentence that the prosecutor had no quarrel with.
Then all I can say is that perhaps those who are outraged are not looking at the totality of the circumstances objectively, but instead subjectively based on what they have assumed happened.
 
danarhea said:
What the hell? Only 4 months for attempted murder? The judge cited his honorable service in military, his position as a firefighter, and his all around good guy image, as mitigating factors. You know what? I don't give a damn. He shot a guy in the head. The guy is lucky his bicycle helmet took the bullet, sparing his brain.

I don't care if it is Jesus Christ who shoots someone in the head, in an act of attempted murder. He should do hard time. Someone please shoot the judge, then let's see if that judge would be just as lenient. LOL. Seriously, though......

1) The shooter belongs in prison.

2) That judge does not belong on the bench.

Discussion?

Article is here.
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Thank you for giving a quote of the article instead of a mere link, and for more than a vague line or two of your own words to spur discussion :2wave:
 
This is what happens when we go from a rule of law, to a rule of ideology, period, end of story!:doh
 
I live in Asheville, and anybody who is riding a bike through the tunnel here, with a kid, is putting their kid in some jeopardy. But shooting at someones head is even worse. This guy attempted murder, and should be tried for it. The father of the kid ought to get some kind of child endagerment trial himself. I'm trying to remember if there is even a sidewalk in the tunnel for pedestrians. I'll have to look next time I go through there. If there is a sidewalk, not a huge deal. But I am pretty sure there aren't any rails up.
 
Coolguy said:
What do you mean... "could have killed the child"?
That seems more like an emotional response than one based on fact.

Secondly if you had read what came earlier you would have known that he received much more than 120 days, which was suspended, unless he commits another crime within the period of his probation.
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he shot a man. he should be serving much more than 120 days.
 
liblady said:
he shot a man. period.
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You didn't asnwer the question.

You want him punished on what he COULD have done?

You COULD turn tricks. You should be punished.
 
Goobieman said:
You didn't asnwer the question.

You want him punished on what he COULD have done?

You COULD turn tricks. You should be punished.
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hardly. i was just pointing out that his actions were wildly irresponsible, as well as clearly criminal. he should do more time than 120 days.
 
liblady said:
hardly.
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Its the natural extension of your position.
I was just pointing out that his actions were wildly irresponsible, as well as clearly criminal.
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No,.. you were arguing he should have punished not just for what he had done, but what he COULD have done as well.

Good to see you backed away from that.
 
Goobieman said:
Its the natural extension of your position.

No,.. you were arguing he should have punished not just for what he had done, but what he COULD have done as well.

Good to see you backed away from that.
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it might have seemed that way, but really it was a comment......not unlike people would make when having a discussion.
 
liblady said:
he shot a man. he should be serving much more than 120 days.
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His actual sentence was within the guidelines.
But his intent (from the evidence) is that he didn't intend to shoot him, 120 days is only part of the suspended sentence, and is sufficient.
 
DeeJayH said:
what evidnce? the defendents statement?
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That is evidence.
And apparently, based on the suspension of sentence, he was believed.
 
DeeJayH said:
firefighter or the bicyclists?
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Judges handing out weak ass sentences.

Courts handling cases like a three ring circus.
 
The guy on the bike was probably going to drag the firefighter out of his car and kick his ass. That's what I would have done. The "warning" shot could have been fired very quickly in self defense.

After he gets out of prison, there might be one less loud mouthed know-it-all in the area.
 
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