Months after a jury convicted him of felony assault for shooting his neighbor, a Bellingham man will get a new trial in a case in which he says he fired in self-defense.
Kamuran Daniel Chabuk, 30, shot his neighbor, Joshua Mark Kiener, the night of May 11, 2013, outside the front door to Chabuk’s apartment at 2633 Nevada St.
A jury found Chabuk guilty of assault in the second degree in November 2015, but returned a verdict of not guilty of assault in the first degree.
Last week, the Superior Court judge who oversaw the trial, Ira Uhrig, ruled that jurors had been misled by two key arguments made by the prosecution: That Chabuk had an “absolute obligation” to warn Kiener, 33, that he had a gun, and that Chabuk went out of his way to provoke Kiener.
Uhrig noted the jury was instructed to follow an understanding of the laws as outlined by the judge, not the attorneys.
“But in this case,” Uhrig’s ruling reads, “the court is compelled to conclude that the arguments and the questions as outlined herein distracted the jury and misstated the law to such an extent that it is inconceivable that the jury was not prejudiced thereby and without question this had a substantial likelihood of affecting the verdict of the jury.”
Uhrig granted a defense motion for a new trial, writing that he has done so only one other time in his quarter-century on the bench.
The night of the shooting, Chabuk was at home when he heard noises coming from a home a few hundred feet up the street, at 2718 Nevada St. He and his fiancée went out to see if something was wrong. Chabuk brought a phone, a flashlight, and a loaded 9 mm Smith & Wesson handgun. He had a license to carry a concealed pistol. Chabuk recorded parts of the encounter on a cell phone camera.
Kiener, a roommate and two other friends were roughhousing in the front yard. Chabuk shined the flashlight as he asked what they were doing, and once he realized there wasn’t a problem he started to leave, according to his testimony.
Prosecutor Dave McEachran alleged that Chabuk, then a graduate teaching assistant at Western Washington University, was acting like a self-appointed neighborhood watchman. He argued Kiener and his friends were annoyed by the flashlight. In his ruling, Uhrig wrote that the cell phone video and testimony suggested to him that Kiener’s group seemed surprised and confused, but not angered.
“The state attempted to characterize all of Chabuk’s actions as being an effort to confront, to provoke, and to incite anger, and did so throughout the trial, including closing argument, and repeated this characterization at the motion for a new trial,” Uhrig wrote.
According to the judge, the prosecution used that interaction to “cast a dark cloud over Chabuk from the beginning of the trial to the end.” Uhrig wrote that Chabuk tried to leave peacefully, but Kiener followed him.
Kiener was unarmed that night, but he was intoxicated. Later at the hospital, his blood-alcohol level was gauged at roughly three times the legal limit. He mistakenly thought he saw Chabuk touch a car parked along the street, and he demanded to know why, according to the video and witness testimony.
Kiener and his roommate, Kyle Walker, followed Chabuk as he retreated down the street to his home. Walker was highly intoxicated, too, according to testimony.
Jurors reviewed the cell phone video, which captured audio but little else in the dark. On it, Chabuk denies touching the car many times. Kiener testified he didn’t believe him.
On a long concrete path that leads to Chabuk’s door, Kiener saw something in Chabuk’s hand. The video recorded Kiener asking: “What, are you going to Tase me with that? … I’m not (expletive) harmful, I just want to understand, like, why, why are you touching my property?”
Holding the camera a few feet from his front door, Chabuk raises his voice: “This is my property! You are on private property right now, and I suggest that you leave!” He told someone to call 911.
Moments later on the tape Kiener steps into the light, shirtless, perhaps 20 feet away. As Kiener walks closer, Chabuk fires three shots: one in each of Kiener’s legs, one in his abdomen.
Kiener survived. Chabuk never told him he had a gun. McEachran told the jury that Chabuk should have done so — a point that Uhrig said misconstrued the law.
“Telling the jury that the Chabuk had an ‘absolute obligation’ to tell Keiner that he had a gun and that he ‘was willing to use it’ is a misstatement of the law and in fact could have had no effect but to mislead and prejudice the jury,” Uhrig wrote.
After the ruling McEachran told a reporter he was simply laying out the facts: Chabuk had alternatives — not going to Kiener’s house in the first place, calling 911 at some point, locking himself in his house — but didn’t use them.
At trial, Chabuk’s public defender, Starck Follis, pointed out that Kiener had alternatives, too.
The jury found Chabuk guilty on Nov. 25, 2015. The prosecutor asked the judge for a sentence of 3 years and 10 months behind bars. A sentencing hearing was never scheduled because of the pending motion for a new trial.
In the meantime Chabuk has remained out of jail on bond.
McEachran and Follis, who have a combined 75 years of experience practicing law, said they have never had a jury’s guilty verdict overturned by the trial court.
“Exactly where it goes from this point is hard to say,” Follis said.
Later, he added, “It was a very difficult case for everybody involved, but we’re all thrilled to have another shot at this.”
McEachran plans to appeal Uhrig’s ruling. If it’s upheld by the Court of Appeals, he said he will plan for a second trial.