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Adkins v. State3/24/2003
CUTOR:] What do you do at this time? [HORTON:] I am backing up and telling him to drop the club, and I have got my gun sights right on him.
[PROSECUTOR:] In your opinion was he coming at you in a menacing manner?
[HORTON:] In my opinion he was coming at me.
[PROSECUTOR:] How many times did you have to tell him to drop [the stick] before he dropped it?
[HORTON:] I believe I told him two or three times. I remember the first time and I remember I was walking back and shouting at him, "Drop the club."
[PROSECUTOR:] At that point what happened?
[HORTON:] As he walked forward I walked backward. He saw me with my gun pointed, and he dropped the club. [Emphasis added.]
When appellant opened the truck, Officer Morales was standing near the back of the truck, calling in the license plate number. At the suppression hearing, Officer Morales testified:
[PROSECUTOR:] So I believe where you left it, Officer, [appellant] had opened the door - passenger lock with the remote control.
[MORALES:] Right.
[PROSECUTOR:] And then what happened?
[MORALES:] Like I said, in an aggressive movement - I mean, within seconds, he entered the vehicle. And I recall as I was looking down calling in the plate Officer Horton then yelled, "Weapon, weapon," and then I heard him saying, "Drop it."
And when I looked up, all I remember seeing is [appellant] with the club in his right hand, and seemed like just seconds went by. He was still holding it, and Officer Horton was still telling him to drop it. Both Officer Horton and I had drawn our weapons.
[MORALES:] In my mind I thought - I did not know what he was grabbing from behind the vehicle or, you know, if there was a gun.
[PROSECUTOR:] But what you saw in [appellant's] hand was a club? MORALES:] A club.
[PROSECUTOR:] Did he ever swing it at Officer Horton?
[MORALES:] Never swung. He had it in his right hand.
[PROSECUTOR:] Was it - I guess what I am driving at here, Officer, could you tell from his behavior whether he was going to swing it or just holding it up to show the officer that, "Hey, here it is," that type of thing? Did you know -- could you tell from what you saw what his intent was?
[MORALES:] In my opinion, he was probably thinking it was in the back of his mind if he could get away with it. . . . .
[MORALES:] But to answer your question I don't know what he was thinking.
[PROSECUTOR:] But -
[MORALES:] If he grabbed - a normal person would probably grab it and drop it immediately.
[PROSECUTOR:] So he was told to drop the club?
[MORALES:] Correct.
[PROSECUTOR:] On one or more than one occasion?
[MORALES:] More than one occasion.
. . . . [PROSECUTOR:] . . . . And you both had your weapons trained on him?
[MORALES:] Correct.
[PROSECUTOR:] Were you prepared to shoot had he made any aggressive move toward any of you?
[MORALES:] Yes. [Emphasis added.] At trial, Officer Morales offered similar testimony:
[PROSECUTOR:] . . . . So can you demonstrate - where is the club? Can you demonstrate to the jury how [appellant] was holding that club at the time?
[MORALES:] If you can picture this being the pickup truck, the door swinging open this way, he had the club in his hand like this with Officer Horton directly in front of him at an angle, and I was directly behind him.
He was ordered to drop the weapon two or three times, and two or three seconds
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