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    “Loud music” Murder Case: Closing Arguments; Jury in Deliberations

    “Loud music” Murder Case: Closing Arguments; Jury in Deliberations

    Defense and State conclude their closing arguments, Judge Healey instructs the jury, and sends into deliberations

    UPDATE:  At 8PM the jury asked to be provided with access to the gas station video, all 20 minutes worth, and from all six camera angles.  They also indicated that they were finished for the evening, and would continue their efforts tomorrow morning.

    In addition, the four alternate jurors will be kept overnight, and also sequestered from the 12 primary jurors.

    Judge Healey elected to recess until 10AM tomorrow, although he and the lawyers will meet at 9:30AM to iron out the protocol for providing the video to the jury.  We’ll be here live with VERDICT WATCH from as soon as video is available from the court room, along with our usual live-tweeting.

    Following today’s lunch recess the adversarial portion of the “loud music” murder trial segued through defense closing argument and state rebuttal without incident.  This was followed by Judge Healey instructing the jury, identifying (my number) the alternative jurors, and sending the 12 primary jurors into deliberations.

    Defense Closing: Cory Strolla

    Strolla did a very solid job on his closing, better than much of this trial work, and especially given what he had to work with.  His mission, of course is to accomplish one or both of the following goals: (1) create a reasonable doubt in the juries mind on at least one of the elements of each of the crimes charged and/or (2) create a reasonable doubt, for every element of self-defense, that the State has disproved self-defense.

    burden prove crime

    burden disprove SD

    To put it another way, in order for Dunn to be convicted of any one of the crimes charged (or their lesser included offenses) the State must BOTH prove EVERY element of that crime charged beyond a reasonable doubt AND they must disprove AT LEAST ONE element of self-defense beyond a reasonable doubt.

    Strolla began by emphasizing that Dunn had the protection of the law, and the presumption of innocence. Dunn need prove absolutely nothing, rather the burden–both for proving the crime and disproving self-defense–rested solely upon the shoulders of the State.

    burden of proof

    Strolla then pointed out that Assistant State Attorney John Guy had  gone so far as to claim in his opening that the State would prove Dunn’s guilt beyond ANY doubt.

    beyond ANY doubt

    Then Strolla began to attack the evidence supporting the State’s narrative of guilt.  He noted, for example, that there was not a single witness who had testified that Dunn had evinced any hate or anger to any person.  At worst, he had said that he hated “thug music,” as testified to by his fiance Rhonda Rouer.

    The State, Strolla said, wants you to believe that Dunn’s blood was in a boiling rage. But all the evidence is that he was in a good mood coming back from his wedding.  No matter how much Assistant State Attorney Wolfson yells, noted Strolla, there was no witness testimony of anger by Dunn towards anybody.

    Strolla also emphasized to the jury that they were not to consider the media, or public gossip, but ONLY the evidence that had been presented in court.  This was surely in no small part to ensure that they did not consider the content or gossip about any of the jail house phone recordings–none of which was ever introduced into evidence–or the jail house letters–only one or two of which were introduced into evidence.  The State, Strolla emphasized, had to overcome the presumption of innocence with evidence, not emotion or anger.

    evidence not emotion

    Strolla also characterized the State’s witnesses as being resistant to his questioning. Whereas they were simply responding “yes, no” to the prosecutors, when questioned by him, he said, he practically had to pull teeth to get responsive answers.  (In fact, much of this was created by Strolla’s antagonistic demeanor and often vague and open-ended questioning.)

    He also argued that some of the State’s witnesses got special treatment for their testimony.  Shaun Atkins got to stay in the Sheriff’s lockup, a much nicer environment than the prison in which he had been serving his sentence.  Christopher LeBlanc had had a warrant for his rest made to go away by the State.  Tommy Storns got a sweetheart deal on his parole violation the night of the shooting.

    The SUV, he noted, had been away from the gas station for three minutes before returning.  He then made the dramatic motion of not speaking for a full three minutes, except to announce each minute as it passed.  During this period Michael Dunn’s father was observed in the court room.

    (Michael Dunn's father.)

    (Michael Dunn’s father.)

    Also present in the court room was Homicide Detective Oliver.  Ron Davis, Jordan Davis’ father is seen past Oliver’s right shoulder, and Lucia McBath, Jordan’s mother, over his left shoulder.

    Ron Davis Detective Oliver Lucia McBath

    Strolla argued that the three men from the SUV–Storns, Brunson, and Thompson–never told the police where they’d had the SUV parked while gone from the station. He also argued that within minutes Tommy Storn’s cousin was on scene. Why, he wondered, was it so much more important for Storns to call his family than to call 911?

    He noted that Thompson did call 911 from the gas station, but was eerily calm on the 911 call recording (which the jurors will have with them in the deliberations room).

    Strolla Argues Police Investigation Incompetent

    Strolla then hit a series of talking points regarding the claimed incompetence of the police.  Why didn’t the police bring in K9 units trained to find guns and drugs? Homicide Detective Musser said it wasn’t his job.

    K9

    not my job

    Why didn’t the ME obtain the original data on the the toxicology tests, rather than rely on the hand written notes of the toxicologist?  ME Simons said it wasn’t her job.

    ME not my job

    He then criticized Wolfson for arguing, in her closing, that Dunn’s inconsistencies were fatal to his credibility.  Why are the defense inconsistencies a problem, but inconsistencies among the State’s witnesses are not? When the three boys from the SUV met days later with Ron Davis, Davis himself testified under deposition that their stories were not entirely consistent.

    Inconsistencies

    Strolla also semi-mocked the lesser included criminal charges, suggesting that they were in place precisely because the State didn’t have confidence in its indictment charges of first degree murder.

    Self-Defense: State’s Burden To Disprove

    From there, Strolla shifted to self-defense. He again reiterated that it was the State that must disprove self-defense, and urged the jury not to let them get away agains with saying, “it’s not their job. It’s ALL their job.”

    SD their job

    He again mocked police performance, suggesting that the only reason Davis’ weapon wasn’t recovered is that they didn’t search for it until days later. Further, the only reason Dunn had ever even hesitantly doubted whether Davis had a weapon was because the police had told them they’d found nothing when Dunn believed they had thoroughly searched–but they had not thoroughly searched.

    no thorough search

    Dunn’s Character Witnesses.

    Strolla then switched tacks to focus on Dunn’s apparent calm demeanor. All the character witnesses, he pointed out, had attested to Dunn’s reputation for peacefulness. Dunn was in a good mood that day, the wedding participants–including his ex-wife–had testified. Does it really make sense that he whipped out his gun and fired for no adequate provocation, Strolla asked.

    Impeaching Rhonda Rouer

    Then Strolla turned to the testimony of Dunn’s fiance Rhonda Rouer, which had been particularly damaging in rebuttal the prior day.  In particular, Rouer had denied Dunn’s claim that he had mentioned Davis possessing a weapon at any time prior to his arrest, and that Rouer had not phone his Federal law enforcement neighbor about the shooting but that the neighbor had contacted them merely to discuss social plans.

    The State, argued Strolla, seeks to hang their hat on Rouer, but Rouer is essentially a basket case and was more so in the immediate aftermath of the shooting.  When asked on cross by him whether it was possible that Dunn had told her about the gun but that she’d missed it because of her stressed out condition, she’d conceded it was possible. The same with the disputed phone call to the LEO neighbor.

    possible

    Strolla then turned back to the police failure to record the interviews with the three boys in the SUV, noting that the absence of these recordings made it all but impossible to catch them in any effort to change or align their recounting of the night of the shooting.  This was essential, he said, because the boys were in the best position to hear Davis’ threats against Dunn–yet they all insisted that while they’d heard much other speech between Davis and Dunn they mysteriously hadn’t heard the threats.  They were never going to admit the threats, he said, because Davis was their friend and they wanted his death avenged with Dunn’s conviction.

    He criticized the police for not adequately determining if the child safety locks were on. In any case, he said, even if the locks were engaged, Davis’ window was open and he could simply have reached through the window, grasped the outside door handle, and opened the door.

    door handle

    Bullets Can’t Violate the Laws of Physics

    Strolla then turned to the bullet trajectory evidence, arguing that the State’s interpretation of it was contrary to the laws of physics.  In fact, the evidence was consistent with Davis being outside of the SUV, not inside.

    matrix

    Repeating his “garbage-in, garbage-out” analogy from the trial proper, he argued that the ME had failed to consider the variables necessary to determine properly whether Davis was inside of our outside of the SUV.

    gigo

    Justifiable Use of Deadly Force

    Strolla finally moved to self-defense. He noted that self-defense is a defense to all the charges if Dunn reasonably believes he was at imminent threat of aggravated assault, grave bodily harm, death.

    SD total defense

    Indeed, he urged the juror to tackle self-defense first in their deliberations, because if they couldn’t get past self-defense they need never debate the criminal charges. (You’ll recall that Mark O’Mara had made a similar suggestion to the jury in the Zimmerman trial.)  He again reminded the jury that the State had to disprove self-defense beyond a reasonable doubt, and therefore, had two overcome two thresholds of beyond a reasonable doubt.

    He then focused on the definition of reasonable doubt, pointing out that it’s not a possible doubt, a speculative doubt, an imaginary doubt.  If they have a reasonable doubt whether Dunn acted in self-defense, they must find that he did so act in self-defense, and therefore acquit him of all the criminal charges.

    He cautioned them to be as certain of any verdict of guilt as they could, because if they found themselves with uncertainty a day or a week or 10 years later, it was too late.  And with that, he wrapped up his closing my asking the jury to return the only “just” verdict, not guilt.

    Assistant State Prosecutor John Guy

    To my disappointment, instead of ASA Erin Wolfson returning to deliver the rebuttal close, John Guy stepped up to do so.  That said, I was favorably impressed with his closing, which was much better than I’d come to expect from him.  For the most part he was able to keep his histrionics in check and hit the key legal points.

    Guy opened his close with an appeal for the jury to apply it’s common sense, and then began working though a series of talking points–accompanied by power point slides–emphasizing “Common Sense reasons Michael Dunn is Guilty”

    (1) If Jordan Had a Gun, Dunn Would Have Said So to Rhonda Rouer

    1 No tell Rouer gun

    (2) If SUV Had Been Aggressors, They Would Not Have Returned to Gas Station

    (3) If Jordan Davis Had Gun, Dunn Would Have Been Shot

    3 If Jordan had gun shot

    (4) If Dunn Acted In Self-Defense, He Would Not Have Fled

    (5) If Dunn Acted In Self-defense, Would have Called 911

    5 If SD call police

    (6) If Dunn Acted Self-defense, Story Would Be Consistent

    6 if SD consistent

    (7) Dunn Self-Defense Utterly Inconsistent With ME Expert Testimony

    (8) If SUV Door Open, Door Plastic Be On Ground, Not on Seat

    (9) If Davis Door Open, Would Have Been Damage to Dunn’s Car

    9 If Davis out car damage

    (10) If Dunn Was Later Afraid, Would Not Have Left Gun in Car

    10 if fear have gun

    Guy then turned to some specific pieces of Dunn’s testimony.

    It Didn’t Matter to Me When I Called Police

    This comment was around Dunn’s explanation that because he had acted in lawful self-defense, and therefore had not committed a crime, it wasn’t really important whether he called the police that night, the next day, or two weeks later. Guy mocked this in comparison to Dunn’s claim that his request to the young men to turn down their music was merely a “common courtesy.” Would not, Guy asked, calling the police after shooting at a car full of people been a “common courtesy” if you really believed you’d done nothing wrong?

    common courtesy

    Gangsters-Thugs

    Guy then focused on the arguably “angry”language by Dunn of the terminology “gangsters” and “thugs.”

    gangsters-thugs

    At a Loss to Justify

    Guy also focused on Dunn’s (arguable interrupted) statement to Homicide Detectives Musser and Oliver that he was at a loss to justify his last three shots at the SUV.

    loss to justify

    Reasonable Doubt, the Human Face of Jordan Davis

    Guy then wrapped up by covering again what reasonable doubt was, and wasn’t, and by showing the photo ID of Jordan  Davis, and to ask the jury for a verdict of guilty on all the charges.

    reasonable doubt

    Jordan Davis

     Judge Healey Charges The Jury

    Judge Healey then moved immediately to read the jurors the extensive jury instructions, dismiss (at least tentatively) the alternate jurors, and send the jury into deliberations.

    The model jury instructions relevant to the case can be read here (these would have been customized for the facts of this case before being presented to the jury): “Loud Music” Murder Trial: Relevant Florida Jury Instructions

    The final 12 jurors are profiled here:  “Loud Music” Murder Trial: THE 12 FINAL JURORS

     Keep on Eye on Legal Insurrection for Breaking News on Any Verdicts

    –Andrew, @LawSelfDefense


    Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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    Comments



     
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    joeyjmiller | February 13, 2014 at 8:22 am

    Why does this prosecution team, in this trial and in Zimmerman’s, insist on focusing on a couple angry words? Is it really relevant to the trial whether Dunn said he hates “thug music” or “rap crap”? Was it relevant to the Zimmerman trial if he said “These assholes always get away” or “fucking punks”? People get angry, people say mean things, all the damn time. It is an accepted part of both the defense and prosecution’s version of events that Dunn was annoyed by the music and that alone explains why he would say something negative about it. Zimmerman was annoyed by the burglary problem in his neighborhood, both the defense and prosecution in that case agree on that point. Obsessing over these completely irrelevant quotes only drives baseless speculation about racism for those who made up their minds about the case as soon as they saw the photos in the paper. Dunn has probably been proven guilty, Zimmerman was not proven guilty, and neither case depended at all on whether they said a couple angry words.

      Because a person’s spoken words are typically a reflection of their state of mind.

      Zimmerman’s utterances WERE relevant, just not in the way the State attempted. They wanted the jury to believe they were uttered in anger, even rage. In fact, anyone who actually listened to the recording of the words–as the jury did–could clearly hear they were uttered in frustration.

      You’re entitled to believe it made no difference to the jury whether Zimmerman spoke in rage or frustration, but I’d be inclined to disagree.

      In this case, Dunn’s characterization of the men in the SUV as “thugs” before he’d had any substantive interaction with him goes to his potential state of mind, and can help explain how a man who is supposed to have such a great reputation fore peacefulness (although apparently nobody who not primarily a friend of his parents or a years-ago work colleague appeared in court to testify to this) would draw a pistol and shoot at people who hadn’t actually threatened him with deadly force.

      You’re quite right, however, that the language is not the core issue here, and was not the core issue in the Zimmerman trial.

      In this case, the core issue is the combination of Dunn’s flight and his failure to call 911, as well as his failure to make any mention of a weapon until captured by police. His explanations for these matters is weak, at best.

      –Andrew, @LawSelfDefense


     
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    sequester | February 13, 2014 at 8:41 am

    Andrew,

    Can prosecutrix Angela Corey bring an accessory after the fact charge against Rhonda Rouer with a reasonable likelihood of conviction?

      I don’t see it under these facts.

      If Rouer had played some active role in the post-shooting decision-making–helping to hide the weapon, for example–or had failed to fully cooperate with police and prosecutors, I’m sure Corey would have hit her with an accessory charge like a ton of bricks. (Her expressed desire to return home is, I think, insufficient, as clearly Dunn was the dominant personality in the relationship.)

      But her demeanor has consistently been so passive and helpless and sympathetic, and her interactions with police and prosecutors so cooperative–and, at times, outright damaging to Dunn–that I just don’t see it.

      –Andrew, @LawSelfDefense


       
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      MouseTheLuckyDog in reply to sequester. | February 13, 2014 at 11:00 pm

      Do you see any jury convicting her?

    OK, here is something for the “speculating spectators” here at LI: what if Corey had his client take a psych eval and it was absolutely devastating to the defense? He does not have to disclose results to state. Discuss!!


     
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    Tim Lookingbill | February 13, 2014 at 4:21 pm

    Does the stand your ground law and using deadly force to defend oneself according to Florida’s statutes require someone to call 911 afterward since the victim feels they were within the law?

    Someone who sees them self as a victim would call 911 for the ambulance if they were injured. Dunn was not injured and didn’t know at the time he killed someone while in the hotel. Dunn felt he was now in a safe place to decompress from the stress and shock of what he had to do to defend himself. At that time he did not think he was a murderer so why call 911.

    To clarify about the “gangster” assumptions I’ve commented about as cause for Dunn’s fear based frame of mind, Dunn as most folks who don’t adopt or understand the “gangster” style/culture cannot distinguish the harmless “posers” (those who wear the gangster clothes and music just to look cool) from the real criminal gangsters who have been portrayed in the media wearing the same clothes and listening to the same music as violent people who wouldn’t think twice about popping a cap in anyone just for asking them to turn down their music. The look of gangster style has a long established reputation as a form of urban intimidation in order to gain respect among their peers.

    Maybe Dunn saw these teens as harmless gangster “posers” and didn’t expect these teens to threaten him just for asking them to turn down their music. In that split second upon threatening his life the “posers” changed their perception to gangster hit men to treat Dunn as an initiation rite of passage in order to build a gangster reputation in Dunn’s frame of mind. All this is speculation of course.

    But from the testimony of the three witnesses in the SUV as the only evidence against cause for self defense, I see Dunn convicted. That’s the rules. Zimmerman had no eye witnesses to speak against self defense claims.

      “Does the stand your ground law and using deadly force to defend oneself according to Florida’s statutes require someone to call 911 afterward since the victim feels they were within the law?”
      The fact that calling 911 is not an element of FL’s justified use of deadly force statute doesn’t mean the jury cannot use it to infer whether Dunn’s claims–supported ONLY by his own testimony–of having acted in self-defense are credible.

      Indeed, that’s their job.

      I consider myself a self-defense absolutist, but do you REALLY believe that a person acting in supposed self-defense can shoot and kill another in a busy gas station and simply drive 2.5 hours home without calling the police? And that sounds like an innocent actor to you?

      And don’t give me this nonsense about Dunn not “knowing” he’d killed someone. The tempo and accuracy of his shooting makes clear he was skilled with the pistol, and the killing shots were fired from fewer than a handful of feet away. The bullet strikes in Davis’ door could be covered by a man’s hand. He knew there was a very high probability he’d scored a hit.

      The deal breaker here is his flight and failure to call 911. If he’d stayed at or near the station and cooperated with police, his claim of self-defense might be tough, but credible. As is, not so much.

      The ENTIRE point of the “justified use of deadly force” is that the person who used the force can be assessed for whether that use WAS justified. Flee the scene, it’s no different than a bank robber fleeing the alarm bells.

      –Andrew, @LawSelfDefense


         
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        jack-123 in reply to Andrew Branca. | February 13, 2014 at 10:24 pm

        Where does the law (or case law) say the defender must notify police? For that matter, where does it say anything about the person’s behaviour after the situation is over? As far as I can tell, the law is concerned with how the person behaves toward the alleged attacker DURING the incident.

        Even if Dunn’s alleged ‘flight’ was inculpatory, at worst the jury might *infer* that Dunn was never going to report himself a the shooter, but such an inference is speculative. Granted, Dunn can’t prove that he positively WAS going to report it, either. But he doesn’t have to prove that, he has the benefit of the doubt. (How much time had passed before his arrest? Was it not less than 24 hours?) The prosecution would have to convincingly prove flight, e.g. Dunn’s words or actions to indicate that he was going to leave town, disguise himself, get a burner phone, etc. A man of 47 years of wisdom like Dunn would expect to be identified by witnesses and license plate, and yet he still went home where he knew the police could easily find him. There’s your reasonable doubt with respect to the ‘flight’ issue.

        I found Dunn’s explanation for not reporting the incident immediately to be credible and reasonable… the combined factors of the panic, the basket case wife, and a pooping puppy, and the fact they are away from home. I don’t blame him for wanting to take the wife and dog home, collect his wits and talk to his neighbor. Sure, ideally he would have reported it right away. It’s not model-citizen behavior, but it’s not that damning either.

        What about Bernie Goetz, who shot four people he believed were going to rob him? He rented a car, disposed of the gun, fled the state, and checked into motels under fake names. He finally turned himself in, but not until a *week* later when it became obvious the police knew who they were looking for, and that he would be caught eventually. And he was still acquitted in his self-defense trial.

        (Great blog here, glad I discovered it.)

        I’m betting acquittal or at worst, hung jury

          “Where does the law (or case law) say the defender must notify police? For that matter, where does it say anything about the person’s behaviour after the situation is over? As far as I can tell, the law is concerned with how the person behaves toward the alleged attacker DURING the incident.”

          The law says in ANY criminal trial the jury is perfectly free to look at the defendant’s conduct after the alleged crime and infer guilt or innocence from that conduct.

          If the defendant was seen to throw the murder gun off a bridge after the killing, you think that’s not admissible, just because it happened after the killing? Because innocent people routinely throw firearms off bridges?

          If the defendant attempts to threaten witnesses into changing their testimony so it’s more in his favor, you think that’s not admissible, just because it happened after the killing?

          If the defendant places his own knife in his victim’s hand to fake the impression that his victim was armed when shot, you think that’s not admissible, just because it happened after the killing?

          Really?

          Conduct after the event from which a jury can infer guilt or innocence is perfectly fair game for the jury.

          There’s even a formal legal term for it–it’s called “consciousness of guilt” evidence. And there is perhaps NO more classic example of consciousness of guilt evidence than flight from the scene.

          I understand that the law of self-defense isn’t what you’d LIKe it to be. Tough. Best you recognize the fact that the law of self-defense is what it IS.

          Shooting someone, killing them, and firing a bunch of rounds at three other people, and then fleeing the scene and never reporting to police until they’ve captured you at gun point is NOT the conduct of an innocent man. It’s the conduct of a man who though he’d gotten away with it, and hoped to keep it that way.

          The whole point of the justifiable use of deadly force in self-defense is that you are held to account to justify it. You don’t just get to go about your business with no police involvement after you shoot someone dead.

          Or, at least, you shouldn’t be able to. I guess we’ll see.

          –Andrew, @LawSelfDefense


             
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            jack-123 in reply to Andrew Branca. | February 13, 2014 at 11:58 pm

            I didn’t say the evidence is inadmissible, or that the jury can’t look at that, I just believe that the simple fact that he had not reported it yet at the time of arrest is not enough to disprove the self-defense claim. Dunn’s behavior suggests that *maybe* he had a guilty conscience, and *maybe* is therefore actually guilty. It seems like a tenuous chain of inferences.

            As far as intimidating witness or placing a knife – let’s stick to the facts of this particular case. Dunn did not dispose of the weapon. There was no witness intimidation by Dunn. He did not place a knife into anybody’s hand. Those are unambiguously guilty actions, and if Dunn had done those things then that would be a different matter and I wouldn’t be arguing about flight. But Mr Dunn’s post-incident behaviour *was* ambiguous. Sure his actions could represent consciousness of guilt. But they could, I believe, reasonably be that of a man who wanted to go home for his wife’s comfort and to collect himself before going to police. Indeed he might have been in flight, but it seems far from certain.


     
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    Tim Lookingbill | February 13, 2014 at 10:14 pm

    “The bullet strikes in Davis’ door could be covered by a man’s hand. He knew there was a very high probability he’d scored a hit.”

    Heard this somewhere but can’t recall where, but in self defense training when using a firearm you don’t shoot to maim when you know the other person has a weapon pointed at you at close range. You shoot to kill. Hesitation means you’re dead. Maybe this was part of Dunn’s self defense/firearm training and it just became second nature with no hesitation. He didn’t stick around to check to see if the one he thought was firing at him was killed.

    One thing that doesn’t make sense about Dunn’s testimony is he mentions the boys getting out or attempting to get out of the SUV after hearing one of them say “This is going down” which he perceived as them advancing toward him to do him harm, but the bullet strike patterns suggests the SUV doors never opened. Or was this one of the inconsistencies of his testimony? If so, that’s a huge inconsistency and I’m surprised that wasn’t brought up.

      “Heard this somewhere but can’t recall where, but in self defense training when using a firearm you don’t shoot to maim when you know the other person has a weapon pointed at you at close range. You shoot to kill.”

      Of course.

      Doesn’t change the fact that he was skilled enough, and accurate enough, to have known he’d likely hit his target.

      Regardless, he hit the SUV 9 times out of 10 shots. It’s frankly shocking that apparently nobody suffered a scratch except the first-struck Davis.

      I don’t expect it would be easy to find a volunteer to sit in a range-car while someone fired 9 rounds into it, even if the shooter was deliberately NOT trying to hit him.

      –Andrew, @LawSelfDefense


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