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A Texas jury needed a scant 19 minutes to exonerate the owner of a video store who, the sixth time he was robbed, shot dead a man who was allegedly robbing the store for the second time in a month. But it wasn’t a slam-dunk, said defense attorney Marc J. Wojciechowski of Wojciechowski & Associates of Houston. “Mr. Diggs was shot once in the chest and twice in the back, so we had to deal with the excessive force argument,” he said, referring to the deceased Anthony Ray Diggs. “They developed in deposition that one shot ought to have been enough. Also, Texas law allows deadly force to protect property, but only at night, and there was some dispute whether 6 p.m. is night.” Diggs’ mother and wife sued the store owner, Robert Davis, alleging in a wrongful-death action that Davis was negligent for using excessive force. According to court documents, the case stemmed from a Feb. 16, 1998, incident. At almost precisely 6 p.m., with a storm — big even by Texas standards — gathering behind him, Diggs pushed through the doors of the Gulf Meadows Video Store to rob proprietors Robert and Sandra Davis, allegedly for the second time in a month. The defense alleged that Diggs, appearing with a 7-inch stick bulging conspicuously beneath his clothes, had robbed a neighboring store an hour earlier. Diggs entered the store while Mr. and Ms. Davis, accompanied by an elderly, longtime family friend, were counting the daily proceeds of their liquidation sale, said Wojciechowski. “This was the sixth robbery in three years. Twice Mrs. Davis had guns in her face,” said Wojciechowski. “They decided after that fifth robbery, which was the first time the decedent robbed them, to get out of business.” Plaintiffs’ counsel Kurt G. Clarke of Houston’s Law Offices of Kurt G. Clarke theorized that the previous robberies had put Davis in a state of mind to use lethal force that the lawyer contended was unwarranted. “I don’t think he robbed the store previously, and I don’t think he was robbing the store that evening,” Clarke said of Diggs. “The Davis family has asserted they were going out of business because they had been robbed before. My opinion is Mr. Davis probably believed that before he closed the store for good he was going to kill somebody. It is because of his anger.” Wojciechowski disputed that. He noted that Mr. Davis testified that the perpetrator had entered the store shouting, “Give me the money. You don’t want to get killed over a little bit of money,” an exchange that was recorded by the microphone on a surveillance camera. THE GATHERING STORM The video, he said, also convinced the jury that because of the gathering storm, it was dark enough to qualify as night for purposes of using lethal force to defend property. Wojciechowski said that the neighborhood could be classified as blue-collar, and lower on the socio-economic scale. “You could describe it as a high-crime neighborhood,” he said. “We didn’t run the crime stats because we figured our client was averaging two armed robberies a year, or in this case, two armed robberies in three weeks, so he had a good knowledge of the local crime situation.” Mr. Davis, 67, grabbed his pistol when Diggs momentarily averted his eyes. Diggs backpedaled. Mr. Davis fired once, then twice more, blindly, while crouching behind the counter. An autopsy established that the first shot to the chest was the fatal wound. Wojciechowski said that the circumstances persuaded the jury the two additional shots were not excessive. “Mr. Davis was there with his wife and an elderly friend of the family,” he said. “It was dark out, and he’d been robbed five times. Most people believe in that situation they are going to use the force they think necessary to defend themselves and their loved ones.” Clarke noted that Diggs displayed no weapon and was still being shot at by Mr. Davis as he fled outside the store. “If the person has fled and you are chasing behind shooting, are you still defending your property at that point?” asked Clarke. Diggs v. Davis, No. 07963 (Harris Co., Texas, Dist. Ct.).

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