West Palm Beach, Florida

From the Palm Beach Post of April 12, 2007

Murder case poses early test for ‘Castle Doctrine’ law

Norman Borden hopes to become a trailblazer – the first defendant in Florida to have a murder charge dismissed because of the state’s fledgling “Castle Doctrine” law.

He should find out next month if he’s successful.

The law, in effect since Oct. 1, 2005, expanded an individual’s right to self-defense. It allows people to shoot another person in their homes, in their vehicles and in a public place, overriding court rulings that people had a duty to retreat from violent confrontations.

The law states that a person has “the right to stand his or her ground and meet force with force, including deadly force” if they believe it is necessary to prevent death or great bodily injury to themselves or to prevent the commission of a forcible felony such as murder or aggravated battery.

Borden, 44, is charged with two counts of first-degree murder and three other felonies in connection with the shooting deaths of Christopher Araujo, 19, and Saul Trejo, 21, and the wounding of a third man, Juan Mendez, who was 20 at the time.

At a court hearing on Wednesday, Public Defender Carey Haughwout argued that Circuit Judge William Berger should dismiss the indictment against Borden at a future pretrial hearing, saying that a preponderance of the evidence establishes his right to use deadly force.

“He is immune from liability,” she said.

Prosecutor Craig Williams agreed that Berger could make a pretrial determination on whether the Castle Doctrine applies, but argued that the judge need only consider whether there was probable cause – sufficient facts and circumstances to believe that a crime was committed by Borden – in deciding he should go to trial. Even if Borden proceeds to trial, a jury could decide he feared for his life and acquit him.

Several people attended the hearing wearing T-shirts that read, “RIP Chris and Smiley.” “Smiley” was a nickname of Trejo.

Noting that neither the Florida Supreme Court nor the legislature has indicated what standard to use, Berger asked the attorneys to provide additional written arguments. He set a May 14 hearing date, at which he will decide if Borden’s case should be dismissed.

Sheriff’s investigators say that one of the men Borden killed was a local leader in a criminal nationwide street gang known as Surenos 13 or Sur-13. Borden’s attorneys identified him as Trejo. Investigators also say it was Sur-13 members who set fire to Borden’s home a couple of days after the shootings.

Borden and a friend were walking his dogs in his Westgate neighborhood in suburban West Palm Beach around 3 a.m. in October when he exchanged words with either Mendez or Araujo, according to witnesses. Araujo got behind the wheel of a Jeep, accompanied by Trejo, Mendez and a juvenile and drove toward Borden, with more yelling back and forth.

After the juvenile got out of the Jeep, the men drove at Borden and his friend again. Trejo had a bat, according to Borden’s attorneys, and he or Araujo also may have had a gun. This time, Borden opened fire on the Jeep until he had fired 14 rounds from his 9mm handgun. Then he went home and called police.

In arguing for dismissal of Borden’s indictment, Haughwout maintained that the Jeep was driven in a way that made it a deadly weapon, along with the bat and possible gun. Her client had a right to be on a public street and was doing nothing at the time of the incident. And so, she said, he had a right to use deadly force.

Borden isn’t the first man in Palm Beach County to try to utilize the Castle Doctrine. Cabdriver Robert Lee Smiley – also represented by Haughwout – tried to use it as a defense to shooting and killing a fare, but a trial judge and an appeals court said that because Smiley’s crime was committed before the law took effect, it did not apply. After two mistrials on a first-degree murder charge, Smiley pleaded guilty in February to manslaughter.

In October, an Acreage man, Jose Tapanes, fatally shot a 19-year-old neighbor twice after they argued in front of Tapanes’ home. That case is pending, but the Castle Doctrine is a possible defense.

From the South Florida Sun-Sentinel of May 15, 2007

Judge refuses to dismiss murder charges against man who claims self-defense

A man who shot and killed two alleged gang members will have to convince a jury that he did so in self-defense, after a ruling Monday from a judge who denied Norman Borden’s motion to dismiss the murder charges against him.

Borden, 44, should have immunity from prosecution because he is protected by a 2005 Florida law that eliminates the duty to retreat when danger is imminent and allows the use of deadly force, argued Public Defender Carey Haughwout.

Borden is charged with two counts of murder in the Oct. 8 shootings of Christopher Araujo, 19, and Saul Trejo, 21, in the Westgate neighborhood near West Palm Beach, where Borden lived.

He told investigators the Jeep the men were riding in was headed directly toward him and he was forced to shoot. Juan Mendez, 20, survived the shooting. The incident happened moments after an altercation between Borden and two of the men, who reportedly threatened to hurt Borden and his dogs.

But from the outset of Monday’s hearing, Circuit Judge William Berger appeared reluctant to dismiss the charges, peppering Haughwout’s questions about the law and the Legislature’s intent.

“I think the Legislature intended to do something very different with this law,” said Haughwout, adding that lawmakers made a strong statement with the passage of the law.

The “stand your ground” law provides immunity for anyone who uses force he or she reasonably believes is necessary to prevent death or bodily harm.

Prosecutor Craig Williams said the question of self-defense is one for the jury, not the judge, to decide. Imitating Borden’s actions that night after shooting at the car five times, Williams demonstrated how Borden then emptied his gun, firing off another nine rounds.

“All we’re asking is that this case go to the jury,” Williams said. “They have to decide whether Mr. Borden was reasonable.”

But even if Borden could have retreated after the initial shots, Haughwout said, he had no legal obligation to do so under the law.

Most of the facts in the case are undisputed, Haughwout said. Even prosecutors are not challenging the fact that Araujo and Mendez left the confrontation with Borden and returned with Trejo. Investigators found no firearms in the SUV, but they found a baseball bat resting against Trejo’s body. Mendez has admitted to investigators that he made derogatory statements toward Borden and that Araujo wanted to go get Trejo because Trejo “would help them beat Borden up,” according to court documents.

In court documents, sheriff’s detectives have identified Araujo and Trejo as Sur-13 gang members.

Berger said he gave the matter a great deal of thought but could not reconcile coming up with a procedure that would take away the determination of the case from the jury.

Borden’s trial is set for June 18.

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