Profane etching on gun inadmissible in ex-Mesa officer's murder trial

A judge presiding over the murder case of a former Mesa police officer who shot an unarmed man ruled Friday that a profane etching on the defendant’s firearm will not be revealed to the jury.

A Mesa Police Department internal report found that the words “You’re f--ked” were inscribed on the on the dust cover of the AR-15 patrol rifle Philip “Mitch” Brailsford used to shoot 26-year-old Daniel Shaver.

State prosecutors argued that the words were a testament to Brailsford’s mindset at the time of the incident, but Maricopa County Superior Court Judge George Foster found the evidence “totally prejudicial” and ruled it inadmissible.

Foster said although the inscription may have violated department policy, the issue was ancillary.

What mattered, Foster said, was “in those eight to nine minutes, were the actions of the defendant reasonable under the circumstances?”

The case stems from a January 18, 2016, call to service, when Mesa police responded to reports of a man waving a gun out the window of a La Quinta Inn and Suites.

Brailsford, 26, shot Shaver five times as Shaver was on his knees outside his hotel room, begging, “Please don’t shoot me,” according to police records. Shaver had moved his hand to his waistband just before the gunfire, which Brailsford reportedly feared was a reach for a weapon.

Brailsford is charged with one count of second-degree murder. His trial is scheduled to begin Oct. 23.

The issue over the dust cover was one of several motions argued in court Friday afternoon. Defense attorney Michael Piccarreta also had asked Foster to dismiss the case entirely, to preclude the jury from viewing slow-motion footage of the incident, and from hearing that Shaver was, in fact, unarmed at the time of his death.

Though Foster ultimately struck down these motions, Piccarreta’s arguments on Friday laid a blueprint of those he’ll likely turn to in trial.

Piccarreta stressed that Brailsford and the other officers at the scene only determined that Shaver had no gun on his person after he was shot. Brailsford and his colleagues walked into a volatile situation in which they believed Shaver was armed, Piccarreta said, adding that Shaver made a motion “identical to a draw stroke.”

“The legal test that juries have to decide is whether an officer at the scene, as a reasonable person, had justification when he made that split-second decision,” Piccarreta said. “Unfortunately, Mr. Brailsford did not have the opportunity to know the future when he had to make that decision.”

Prosecutor Susie Charbel took issue with Piccarreta criticizing Shaver’s actions before the shooting.

“Let’s not forget, Mr. Brailsford is the one on trial here, not Mr. Shaver,” she said.

Charbel stressed that there were five other officers who were primed to shoot if they felt threatened.

“(They) had the means and the power (to shoot), whether before, during or after,” she said, noting that one other officer had exchanged his drawn firearm for a Taser stun gun while Shaver was “crying and crawling.”

“No one fired a weapon aside from Mr. Brailsford,” she said.

Piccarreta responded to this directly, noting that officers presume a suspect is armed until he’s frisked. And a sergeant on the scene previously said he would have shot Shaver himself if Brailsford wasn’t in the way, Piccarreta said.

After the hearing, The Arizona Republic asked Piccarreta if precluding evidence on the dust cover would be particularly helpful for his client.

“I think the whole case is particularly helpful to my client,” he said. “I’m just trying to ensure that only evidence (is admitted) that’s relevant to that split-second decision to use deadly force when the deceased made a move identical to a draw stroke in a gun investigation. I’m trying to make sure that only the evidence that is relevant to that decision is used as the basis for the jury decision.”

Laney Sweet, Shaver’s widow, issued a statement to The Republic after the hearing.

“I feel the hearing went in favor of the truth, accountability and ultimately justice for my husband, Daniel Shaver,” she wrote.

“The judge took all considerations into account and I felt made a fair ruling taking into account the clearly prejudicial view one could have for his foul etching. However, I believe it’s unfortunate the jury will not hear all factual evidence of the inscription regarding the profanity the former officer used when clearly violating department policy. I do believe the 'You’re (f--ked)' dust cover inscription clearly illustrated to the mindset Philip Brailsford had while working formerly for Mesa, PD.”

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