Self-defense claim possible in ATV death case
A former Michigan State trooper accused of killing a 15-year-old by shocking him with a Taser and causing him to crash his ATV into the back of a flatbed truck will possibly claim during trial he acted in self-defense, his attorneys said during a court hearing Tuesday.
Mark Bessner resigned from the state police after the Aug. 26, 2017, incident, in which he reportedly used his stun gun on Damon Grimes after ordering him to stop. Michigan State Police policy bars troopers from using Tasers from moving vehicles.
Wayne County prosecutors charged Bessner, who was the passenger in the squad car, with second-degree murder. Former state trooper Ethan Berger, the driver, was fired seven months after the incident, but was not charged. Grimes’ family has filed lawsuits against Bessner and Berger in federal court.
Bessner's trial is scheduled to begin Monday.
During a pretrial hearing Tuesday in Wayne Circuit Court that lasted more than two hours, Bessner's attorneys said they were exploring a self-defense claim.
Also discussed during the hearing: Whether statements Bessner made during conversations with his union representative Jay Morningstar would be allowed at trial.
Bessner took the witness stand Tuesday during a sometimes-testy exchange with Assistant Wayne County Prosecutor Matthew Penney. At issue: Whether Morningstar was acting in his capacity as union rep, or as a Critical Incident Stress Management counselor during conversations with Bessner after the incident.
Under a 2016 Michigan law, statements made to a CISM counselor are privileged, and not allowed in court.
When Penney asked Bessner to recount exactly what was said and when in the minutes after the ATV incident, the former trooper said he couldn't recall specifics.
"It was a blur afterward," he said. "My thinking wasn't exactly straight. There were a lot of things going through my mind. I don't recall exactly what was said. I don't remember if I called (Morningstar) and left him a voicemail, or what."
Penney pressed Bessner to answer when Morningstar told him his discussions with him would be kept confidential. Bessner replied: "Counselor, I can’t answer that question any clearer. He told me multiple times within 365 days of Aug. 26, 2017, that he was a CISM and to call him as such. It was shortly after that law was passed (in March 2016)."
Morningstar also took the witness stand and said he spoke with Bessner via telephone after the incident, and then later met with him and Berger at a state police detachment in downtown Detroit.
"I remember talking about the emotions of this," Morningstar said. "Both Mark and Ethan. They’re human beings, and this is something that affected them."
Morningstar said it was difficult to tell when the conversation morphed from giving advice as a union rep, to discussions as a CISM counselor. He said that ambiguity is why state police officials later decided to relieve him of his counseling responsibilities.
Judge Margaret Van Houten ruled the discussions Bessner had with Morningstar would not be allowed during testimony.
Bessner's attorneys discussed a possible claim of self-defense during trial. His attorney Lenore Ferber said the proposed jury instructions did not lay out what constituted a threat to Bessner.
"If it's not in the instruction, at the end of testimony we'll have to revisit it again, because it's our stated defense," Ferber said.
Penney added: "Assuming self-defense is raised here, there’s going to be no testimony that a weapon was recorded. And, frankly, I believe the self-defense claim is going to be a difficult defense enough."
The difference between a mistaken presumption and an accident was also discussed.
"(The defense will likely claim Bessner) was mistaken about the amount of danger he was actually in," Penney said.
The judge replied: "That's different than if he accidentally pulled the trigger (on the Taser) ... his mistaken belief that there was a gun is what you're saying. You're going to argue that he had a mistaken belief there was a gun?"
"Having gone through the video, I don't know where that claim is going to come from," Penney said. "There is some sort of implication of a mistake or an accident that'll be in play here."
After the hearing, Bessner's lead attorney, Richard Convertino, confirmed he was "exploring" claiming his client acted in self-defense. He did not elaborate.
Berger, who is on the witness list, appeared in court Tuesday and said he would assert his Fifth Amendment right to not testify if called to the witness stand.
Also Tuesday, Convertino asked the judge to remove Bessner's tether so he could meet with him and go on outings related to the case.
Bessner added: "My concern was more the appearance to the jury with the tether, which is quite visible."
The judge answered: "We have defendants on tether all the time. Just make sure it’s charged to make sure it doesn’t beep during the trial."
The request to remove Bessner's tether was denied.
According to the prosecutor's office, Bessner "punitively" used his Taser against other civilians on July 14, 2017, April 12, 2016, and Sept. 17, 2014. Prosecutors say Bessner was also "intimately" involved in a fourth "punitive tasering" incident Aug. 18 — eight days before Grimes' death — court documents filed by prosecutors show.
Bessner was also the subject of lawsuits filed in Wayne Circuit Court alleging he used excessive force. He was suspended days after the Grimes incident and resigned a month later.