A defense attorney says a conviction in a shooting death case raises concerns over just how well South Dakota self-defense law is understood.
Thirty-year-old Derrek Brave Heart was struck by an intoxicated assailant, 43-year-old Jonathan Odom, multiple times inside his vehicle in front of his pregnant girlfriend, according to court documents. After leaving his car, Brave Heart was struck three more times before leveling his legally owned pistol and firing one fatal shot into Odom's torso. The exchange was caught on video taken by Brave Heart’s girlfriend.
Brave Heart claimed self-defense.
The Pennington County States Attorney’s Office elected to prosecute the case as a potential murder. While acquitted by jury on a second-degree murder charge, Brave Heart was ultimately convicted on a first-degree manslaughter charge. A class C felony, that has a maximum sentence of life in prison.
Martha Rossiter is the defense attorney representing Brave Heart. She said this is the result of significant misunderstandings of state law.
“I’m concerned that the public in general can’t defend themselves from a drunk stranger that attacks them in their car on a random weekday morning, because that’s effectively what this case has decided, and I can’t stand by and let an injustice like that be,” Rossiter said.
She said taking a holistic look at the case shows a nightmare scenario for Brave Heart.
“The law in our state is you have the right to defend yourself with lethal force or the threat of lethal force when you believe it’s reasonably necessary to defend against an imminent forcible felony. Period. That’s the law," Rossiter said. "This intoxicated stranger has entered his car, that is aggravated entry into a motor vehicle — that’s a felony. Because that man entered our car, we can presume that man is intending to hurt us.”
The state's attorney office argued during trial that Brave Heart could have deescalated the situation, but instead escalated the conflict.
In video captured and witness testimony of this incident, Brave Heart takes time before drawing his firearm. Rossiter contends this is all within his legal rights in a stand your ground state.
“Even if running away would be easier we don’t have to do that in South Dakota," Rossiter said. "We can stand our ground. Nobody gets to attack us in our car.”
Third-party witnesses said each successive strike on Brave Heart was getting more forceful. Law enforcement, while not lawyers, proceeded to deem Brave Heart as a case of self-defense prior to trial.
“Even the investigator, in his detailed report, watching that video closely second-by-second, and testified to, that he can see Derrek blink like he’s having trouble seeing, he can see him lose his balance slightly and it’s at that point he raises his gun and shoots this man one time," Rossiter said. "Who doesn’t have the right to do that?”
SDPB has access to the video, and and audio from the recording can be heard in the link above.
USD criminal law professor Sandy Mckeown said there’s no relevance to an immediate response in this kind of case.
“There’s no evidentiary requirement that you come forward with a particular response to what’s happened," Mckeown said. "In fact, a lot of times when people are faced with a traumatic situation — certainly operating a handgun against another is traumatic — they may exhibit no emotion whatsoever, and that’s just a trauma response.”
For Mckeown, cases like these highlight the challenges of South Dakota gun policy.
“The distinction between when you can use deadly force and when you can use force that’s nondeadly is really about the difference between whether the person you’re encountering is using deadly force themselves, or if you think they’re getting ready to commit a forcible felony,” Mckeown said.
While Mckeown agreed there is some legal protection in a shooting like this, there are distinctions.
“If you are in a situation where somebody else unlawfully enters an occupied vehicle, you get to presume they do so with the intent of committing an unlawful act of force or violence," Mckeown said. "So, what does that mean? I think it means for sure you’re able to use force. Deadly force is going to be dependent on whether they’re threatening to use deadly force against you.”
However, there is another factor Mckeown said must be considered before sentencing is carried out.
“There is such a thing as imperfect self-defense, and imperfect self-defense is this idea that, you maybe subjectively thought you were at risk of imminent death or bodily harm, but you were wrong in that," Mckeown said. "Imperfect self-defense isn’t really a ‘defense’, it’s more of a mitigating factor that the judge could potentially use in sentencing.”
The Pennington County States Attorneys Office declined to comment for this story.
Brave Heart’s sentencing is scheduled for early May.