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CA Appellate Opinion Mocks Defendant's Attempts to Kill Detective

By William Peacock, Esq. on March 24, 2014 | Last updated on March 21, 2019

"Defendant Nicholas John Smit was charged with a number of drug offenses that exposed him to a maximum of 11 years in state prison. How did defendant attempt to avoid those 11 years? By trying to kill the detective whose testimony was required to convict him, of course.  None of the usual suspects such as Wile E. Coyote, Elmer Fudd or Yosemite Sam, not even Boris or Natasha, ever eclipsed what defendant did here."

How does one attempt to murder a detective, and in the process, turn an 11-year sentence into four consecutive life sentences with a 40-year garnish? You know, the usual: boobytraps, panji boards, zip guns, and military rockets.

How To (Fail To) Kill a Detective in 75 Easy Steps:

Step 1: Set up a visible panji board-based boobytrap.

Detective Charles Johnson, of the Hemet Police Department, obtained and executed a warrant to search John Smit's home. The search turned up cocaine, marijuana, and lots of paraphernalia. Johnson, to state the obvious, was a key witness in the case against Smitty.

The day before Johnson's preliminary examination in Smit's case, someone, taking a page from the Vietcong, set up panji board traps, covered in feces and broken glass (feces increases the chances of an infected wound), outside of Johnson's car, as well as those of his wife and son. It also appeared that someone had vandalized his house with ball bearings, of the type typically used with a slingshot.

Step 2: Nearly Kill the Wrong Detective With a Zip Gun

On February 23, 2010, the supervisor of the department's gang task force arrived at work, and opened the gate to the parking lot, only to hear what sounded like a gunshot. A zip gun was apparently attached to the fence, and barely missed Sergeant Matthew Hess. Hess said that Johnson was typically the first person to arrive to work, but had to be in court that day.

A quick Google search found plans for an "almost identical" zip gun, as well as panji boards, on a web page.

Step 3: Fail With Another Zip Gun

On March 5, Detective Johnson was leaving an Arco AM/PM, with coffee in hand, when he backed over an object. A zip gun, previously secured with a magnet, had fallen off of the undercarriage of the car.

Step 4: Use a Dummy Rocket

On June 3, Johnson left his department-issued Crown Victoria at work. At 10:00 p.m., fire personnel responded to a fire on a nearby rooftop. There was also an undetonated M29 rocket and a propane or butane tank nearby. The opinion notes, in a footnote, that the M29 is a practice round, while an M28 is an anti-tank rocket. [There was a load of evidence and testimony tying Smit to the rocket, which we'll omit due to space constraints.]

Step 5: Another Zip Gun?

On July 6, Johnson took a different city-issued vehicle of his in for service. While it was up on the rack, the mechanic found a similar zip gun attached next to the front left wheel. Apparently, one of the bullets had been struck by the firing pin, but failed to fire.

Sufficient Evidence

The good news is, the feces wasn't Smit's. The bad news is, there was plenty of direct evidence, discovered in his home and elsewhere, and DNA on the trap guns, to tie him to everything (including the ball bearings used in the vandalism) except the panji boards themselves. And even those, the court notes, could be tied together by circumstantial evidence sufficient to convince "any rational trier of fact [...] beyond a reasonable doubt."

Firearm Use Enhancements

Remember that 40-year garnishment? Smit also contested the firearm enhancements that were tacked on to his multiple life sentences because, well, he wasn't actually there to pull the trigger.

"The issue presented is one of first impression: If a defendant sets a trap using a rigged firearm - -i.e., the defendant need not be present for the firearm to discharge -- has the defendant personally used a firearm within the meaning of section 12022.53?"

The key word is "use," which was defined by the California Supreme Court in People v. Chambers (1972):

"Use' means, among other things, 'to carry out a purpose or action by means of,' to 'make instrumental to an end or process,' and to 'apply to advantage.' [Citation.] The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that 'uses' be broadly construed."

Smit's counsel cited a plethora of cases where the defendant was physically present to "use" the gun, but physical presence, according to the court, is not necessary.

"Defendant clearly used the zip gun to carry out his purpose of attempting to kill Johnson," the court held. "The culpability of a defendant who stands in front of his victim and shoots is no greater than defendant's. Whether shooting an individual face-to-face, from a place of concealment, by remote control, or by means of a boobytrap, a defendant has used a firearm to carry out his purpose. Defendant has cited no reason why the plain language of [the statute] should not apply in this matter."

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