The Anatomy of a Self-Defense Shooting, Pt. 2
Interview with Spencer Newcomer and Attorney Christopher Ferro, Esq.
by Marty Hayes
A note to readers: In our January 2019 edition of this online journal, we told the story of Spencer Newcomer who after months of harassment by several neighbors was told by one, David Wintermyer, “I am going to kill you,” during a confrontation on the street. That verbal threat–coupled with an aggressive, fighting stance and grabbing something out of his right front pants pocket–resulted in Wintermyer’s death when Newcomer shot him to avoid being killed with what he believed was a gun the man was pulling out. The object turned out to be a cell phone in a black, rubbery case. Newcomer was subsequently charged with first- and third-degree murder and voluntary manslaughter.
If you missed the first installment, we suggest you return to this link to read the details of events leading to Newcomer’s arrest. Picking up where we left off in January, our interviewer, Network President Marty Hayes, now turns to defense attorney Chris Ferro and asks him to outline his decision to take the case and the challenges that entailed.
Hayes: Chris, please give us your recollection of how you first heard about the case and who contacted you. How did you get involved?
Ferro: Well, the location where this took place is actually not too far from my home. It’s not often in one of these neighborhoods that you have a shooting that results in a death. There’s an elementary school within 1,000 yards from where this took place. It’s very quiet, with tree-lined streets. It’s the last place in the world you would expect a homicide. It was big news from the very beginning.
My recollection is that a member of Spencer’s family reached out to me, probably late the day this incident took place or early the next day. We had some initial discussions and I had to tell them that there was not a whole lot that could be done that very second.
My first step was to talk to Spencer, to understand what took place that day. He was charged with homicide, including murder in the first degree. In Pennsylvania, that’s a non-bailable offense, so we were not getting him out of jail. Based on what he was charged with, I knew this was going to be a long, difficult process and I needed Spencer and his family to understand that.
Hayes: Can you tell me about the financial aspects of a case like this?
Ferro: Well, it’s daunting. From the beginning you know that it’s going to be financially difficult for any one person to bring this case to a successful conclusion. Most people do not save money thinking, “Someday I’m going to be charged with criminal homicide and have to hire an attorney and investigators and experts to win my freedom back.” Spencer was no different. Luckily, he had a number of family members who cared deeply about him and had at least some financial resources.
I had to tell them, “It’s going to be expensive. It’s going to take a long time. Not only are you going to be paying for my fees, but I anticipate that we’re going to need to hire experts in different fields. They are not going to be cheap, but they are going to be incredibly necessary.” Most people don’t have family members who step up and pay the initial retainer. Any attorney considering taking a case like this has to have a financial commitment from the family. It’s expensive.
Hayes: The financial aspect is always a concern for our members and for people who are thinking about joining the Network, too. Are you comfortable talking about the exact finances of Spencer’s case and discuss the amount of money required?
Ferro: I can discuss it in broad strokes. There are two ways that any criminal defense attorney can charge: a flat fee or an hourly rate. In more complicated criminal matters, I will generally charge my hourly rate because I have no idea the twists and turns that the case will take from beginning to end. I have no idea how many hours it is going to involve. We had a discussion and Spencer’s family agreed to pay my hourly rate.
I initially requested a $10,000 retainer in order to move quickly on what needed to be accomplished. I was comfortable with Spencer and his family and I knew that as I needed additional funds, I could ask. As it turned out, that happened multiple times. Ultimately, after going to trial, there was still a balance that was due and owing, based largely on the number of hours that went into the preparation of this case and then the actual trial.
The cost was significant. For a member or an attorney considering one of these cases, when it’s all said and done, you’re looking at fees in the $60,000 to $100,000 range, depending upon a bunch of different factors. But that’s the general range.
Hayes: That’s pretty much what I’ve heard from several attorneys: $50,000 to $100,000, plus experts and other people you may need.
Hayes: In fact, you’re still owed money for your work on this case, right? Spencer hasn’t been able come up with the total payment yet, but that’s the nature of the business that you’re in.
Ferro: That’s correct. We’re hoping some of your members may be moved by Spencer’s story and will help him out. That would certainly be wonderful.
Hayes: I foresee setting up a Go Fund Me account with the money going directly to your law firm. That would be most efficient. Now, let’s pick up the story and talk about your work on the case.
Ferro: The Commonwealth’s case against Spencer relied on the fact that he shot an unarmed man in broad daylight. The investigation showed that there was no other firearm at that scene. What we did have, though, were crime scene photographs showing a black cell phone lying in the road to the right of the deceased’s hand. Not only was it a black cell phone, but it was encased in what’s commonly referred to as an Otter Box. That is a thick, rubber-type case and would certainly look like a pistol grip.
After Spencer fired the fatal shots and placed his weapon in the truck, he immediately called 911 and reported a shooting. He indicated that he acted in self defense. He said, “I shot a man. We need help right away. We need an ambulance, but this is a volatile scene. I don’t want to get into specifics now.” Obviously, that helped us later. Many times, 911 will try to ask you for as many details as possible: Who? Where? When? That call is being recorded, so the details that they want you to provide and the information they’re asking you about really will largely come out to your detriment.
When the police arrived, Spencer immediately surrendered himself with his hands up; he posed no risk to law enforcement. When they began to ask him questions, his responses were very limited, again, just indicating he had shot in self defense. But when they asked for specifics about what happened, he indicated that he wanted to speak to counsel. That is significant.
Hayes: How important was Spencer’s immediate indication that this was a self-defense case?
Ferro: It set the stage. He succinctly told the police exactly what had happened and why it happened. Most people who carry weapons for their protection don’t understand that if a shooting occurs and another human being is dead, the police will not make a significant effort to figure out whether it was self defense or whether it was not. They will approach it as a homicide scene.
You’ve got to remember that when the police are asking you questions about how things happened, many times, they are not seeking to help you. This is not a blanket statement; police officers differ.
Ferro: Law enforcement at that point are in a crime-solving mentality. They are there to investigate what they believe is most likely a criminal offense and to attempt to gather information that they can later use against you.
The less you say, the better, and that’s difficult, because most people think, “I acted in the right. I can just tell them what happened and all this will go away.” That was a difficult concept for Spencer to come to grips with. He believed that all he had to do is just tell the police what happened.
That was certainly not the case here. The problems were large: Spencer shot someone who did not have a firearm. He had a number of witnesses who weren’t backing up his statement that it was self defense.
I knew right away the number of shots and where they hit was a significant problem, specifically the shot in the back. Most non-gun owners assume that if you shoot somebody one time, that’s enough. They think if you shoot them twice, three times, four times, clearly that’s no longer just protecting yourself, its going over the top and it is a crime.
We needed to explain how quickly a proficient individual could shoot four shots with a handgun. We were able to show how an individual can squeeze off four rounds in a matter of seconds. It is done in an instant and the brain really doesn’t even have time to ask, “How many shots am I shooting?” You’re shooting until the threat is gone and that can all be done in a heartbeat. Your brain is not able to process all the information in milliseconds.
I think most people remember that in the Western movies that if you shot someone in the back, that was a sign of cowardice and that you shot someone who couldn’t defend themselves. That was largely why I brought you into the case, Marty. I knew we needed to have an expert to decipher that and a number of other things.
Another problem was the way the deceased was coming toward Spencer and then turned away during the shooting. We had to show how his body would naturally turn away and ultimately the last shot would end up in the back. It happened so quickly, that Spencer’s brain wouldn’t have had time to tell him to stop shooting, although the deceased was turning away.
An expert was critical because without an expert, a jury, especially if uneducated with respect to firearms, would assume that four shots means that you’re not protecting yourself. They would think you were out of control and shooting to kill. They’ll think a shot in the back means that you shot somebody that was retreating, rather than, again, just shooting until the threat is gone. An expert’s testimony was critical for problem number one.
Problem number two was eyewitnesses. We had a number of eyewitnesses, largely people who did not have skin in the game. I think we were able to develop that certain neighbors liked the deceased or had a relationship with him, much more than they had a relationship with Spencer.
When crimes happen, largely we have criminals testifying against other criminals. There’s a lot of baggage that a criminal defense lawyer can attack people on, based upon their criminal history, their history of lying, et cetera. These witnesses had none of those issues. They honestly believed that they had watched Spencer shoot an unarmed man without provocation; shoot him, quite frankly, without any reason whatsoever. I’m certain you could give them lie detector tests; they believed that with every fiber of their beings.
Hayes: Did you think from the beginning that it was going to trial? What preparation did you undertake to defend this at trial?
Ferro: Yeah, I thought from the first there would be a trial. There were some obvious aspects about Spencer’s defense causing concern. We had an unarmed individual who was shot four times, including a shot in the back. We had to figure out what happened that day and answer a number of difficult questions.
The biggest? The investigation showed that Spencer had killed an unarmed man in the middle of a quiet, suburban neighborhood at 10:00 a.m. with witnesses who, at least at the beginning, painted the picture that Spencer was the aggressor. They clearly thought he fired those fatal shots without provocation. We were dealing with a significantly uphill battle right from the beginning.
Number one, why were all the witnesses who observed this in broad daylight, some probably 25 feet away, some 40 feet away, painting a picture that Spencer killed this man without provocation?
Two, why did Spencer kill an unarmed man?
Number three, how could we prove that the individual who was shot was in fact the aggressor, even though not armed, requiring Spencer to use deadly force?
Four, how do we explain the multiple shots and the locations of the shots in some reasonable manner that doesn’t make Spencer look bloodthirsty?
The one good thing about this case is that I didn’t have to search for a defense. I knew from the beginning that it was self defense. It had to be self defense in order for the defense to be successful.
Hayes: Let me reiterate that the black object Spencer saw the individual pulling out of his pocket wasn’t a gun; it was a black cell phone. You needed one or more experts to help with the forensics aspect of the case. Besides Spencer, who testified, what other witnesses did you decide to call and what were their roles?
Ferro: We needed to focus on Spencer’s state of mind at the time of the shooting. To do that, we wanted to paint a picture of the life he had lived up until that moment. Defending an individual with no prior criminal record is a big benefit in a case like this. We called a number of different character witnesses who were able to testify that Spencer had a reputation in the community as a peaceful and a non-violent person. That was critical for the jury to understand.
We had to overcome prejudicial thoughts jurors might have about why Spencer would have a gun with him that morning, when all he was doing was going from his house to his mother’s home to make some fliers for a car show he was going to that day. We called his sister, a lovely woman, to testify. Who knows you better than your sister? She was able to testify about Spencer’s love of guns, about how he learned it from his father, about how his father had always carried a gun with him for protection, so it was something he learned as a young man. By the time of the incident, leaving the house, grabbing your car keys, your wallet, and your firearm was just a matter of routine. There was nothing special about that day. He wasn’t looking for trouble.
His sister really helped put that piece of the puzzle together. Her testimony let the jury put to rest the idea that anybody that leaves their house with a firearm, especially if they’re going a short distance, obviously must be looking for an encounter or looking for a reason to fire the gun.
We also hired a psychologist who would testify in this case. In PA, the Commonwealth has to prove a specific intent to kill when you’re charged with first degree murder. We had to hire a psychologist to provide an opinion regarding the defendant’s state of mind at the time of the shooting. That’s specifically permitted essentially because of the premeditation argument. We hired a wonderful psychologist, whom I’ve used a number of different times as an expert.
She did a compelling job of deconstructing the history of the relationship between Spencer and the deceased. She clearly showed that at the time of the shooting this individual had psychologically bullied Spencer for months. She showed that Spencer was legitimately in fear of this individual.
When this individual came at him that day, in that moment, based on the size disparity and their history, Spencer clearly feared for his life. When he saw something black coming out of the deceased’s pocket, he believed it was a gun. Maybe in a calm environment you or I would see a phone, not a gun. The psychologist helped us understand what was going on in Spencer’s mind at that moment, and how all the history between him and this person fed into that split-second decision. She explained why it was completely reasonable at that point for him to think he was in danger and to think that this person was pulling out a gun. She explained why it was reasonable for Spencer to immediately pull his firearm and shoot, rather than wait to see what happened next. She really was a helpful expert witness in the case. [Photo, right: Phone in black, rubbery case.]
Hayes: Before we discuss the trial further, I’d like to ask you about any pretrial issues, motions in limine, or other procedural challenges that you had to overcome.
Ferro: There were a couple of significant issues. Number one, after Spencer was arrested, law enforcement filed a search warrant to get into his home. He was a gun collector and they took all of his firearms. They took all of his ammunition. In the eyes of a layman like me, Spencer had what I believe was a large collection of firearms, lots of rifles, lots of handguns, a tremendous amount of ammunition. Spencer, how many guns did you have?
Newcomer: They took 17 from my house.
Ferro: They carted that all out. Before trial, we attempted to suppress that evidence. It was my belief that jurors who are not firearms enthusiasts would hear that they took 17 guns from Spencer’s house, and ask why do you need more than one gun? I was significantly worried that would prejudice a jury. We asked the judge to exclude that evidence and, in this case, the court agreed that whether he had one gun or 100 guns in his house really had no relevance. The only issue was the gun he had that day and how he used it at that particular moment. That was a critical thing. Sometimes attorneys will miss that because juries are a random cross-section, many of whom do not come to you with a gun background.
Some jurors may ultimately think that guns are bad, so more than one gun is really bad. We were able to take that out of the equation. We did not leave them with the opinion that too much ammo or too many guns mean the owner is a bad person. [Photo, left: Police photographed this gun cabinet containing some of Newcomer’s guns but Ferro got it excluded from trial evidence.]
We filed motions in limine to make sure that they couldn’t use Spencer’s silence against him. Spencer mentioned earlier in this interview (see January 2019 journal) that he asked for a lawyer when police asked why he didn’t just drive away. Law enforcement initially said that when they asked questions, he did not answer. It wasn’t clear at which point in time law enforcement began asking questions and when he said, “I think I need to talk to somebody,” which under all the stress he was going through, was how he worded, “I need a lawyer.”
One of the questions police asked was, “Why didn’t you just keep driving?” because where his truck was relative to the house when police arrived made it look as if he could have kept driving and didn’t need to get out and shoot. When asked, “Why didn’t you just keep driving?” Spencer was silent, collecting himself, but police could have used that to show a consciousness of guilt at that point, to suggest he was thinking, “Oh, yeah, I should have kept driving.”
We put a great deal of effort into motions to exclude his silence. We excluded any further questioning, too, based upon his request at that point to talk to somebody.
We also filed motions in limine to admit our experts. I filed a specific motion telling the Commonwealth how I intended to introduce your testimony, Marty, and on what subjects I wanted you to testify. I didn’t want a surprise at trial. I wanted the judge to know what we were going to introduce. I wanted to know before we started trial exactly what we were going to be able to get in from your testimony.
From a planning perspective, knowing that we were going to be able to admit certain of your opinions and maybe not other opinions was critical and that was helpful in getting ready for trial, too. We did the same with our other expert.
There was one final piece of legal trial prep: we filed an extensive motion with the court explaining self defense and how we believed it applied to this circumstance. Most people think that this was a stand your ground argument, but it was not. At that time, PA had a newly-enacted Castle Doctrine, but it only applied to individuals who believed that the individual that they were firing at was armed with a deadly weapon. The judge indicated that a cell phone is not a firearm and it’s not a replica of a firearm, so we did not have those protections.
We were under the traditional self-defense law allowing deadly force and we had to prove that he did not abandon the duty to retreat. That was significant. The Commonwealth argued that by stopping his truck, getting out of this truck and essentially engaging Mr. Wintermyer, Spencer had abandoned his duty to retreat. We needed to know the Commonwealth was going to argue that, because it dictated how we went forward with our case.
Hayes: Do you think the police made a rush to judgment? Did they basically decide to try to prosecute and convict Spencer without really caring about the other evidence?
Ferro: If you Monday-morning-quarterback it, there’s no doubt in my mind that law enforcement made a quick decision, but in some ways it would be difficult for them not to make that initial decision, because when they arrived on scene, they were confronted by multiple witnesses who, at that time, were willing to say that Spencer had killed an unarmed man without provocation. If they were going to go that direction, they were certainly assisted by the witnesses. I understand that.
The problem I have with the police is that they were never willing to look at other possibilities. Once they took the witnesses’ testimony, they only tried to build and corroborate that version of the events. No one would stop to ask, “Was this a shooting in self defense and are these witnesses wrong?” No one would stop along the way to consider, “OK, where are we at now? What information do we have at this point? Does it still support or does it call into question our initial position?” They really turned a blind eye to some of the other, critical evidence.
During the investigation, it became clear that the deceased had been bullying Spencer and there had been a pattern of harassment occurring for months. Spencer had called the police and sought their assistance in trying to solve this problem. He was harassed and bullied, so he was afraid of Mr. Wintermyer, not just because he was larger, bigger, and more intense, but because he had done a number of subtle different things to torture Spencer mentally.
The deceased very outwardly wore on his sleeve that he was a former Marine and that it meant something. I have family members who are Marines. I have nothing against that, but the deceased wanted the image that he was not only just a Marine, but he was one of the big, tough, gung-ho Marines.
Hayes: Wasn’t there in fact something along those lines on a sign in his yard?
Ferro: The deceased had two signs in his yard. The first was a large sign with the Marine Corps emblem. He put up a second sign in his yard after his confrontations with Spencer over the months. It said, “Trespassers will be shot and survivors will be shot again.”
“Trespassers will be shot. Survivors will be shot again.” That sign was hammered into his front lawn, probably 20 feet from his house. Spencer saw that sign every day as he came and went from his house, so at least according to what Wintermyer wanted him to believe, Spencer knew he was facing an armed and dangerous person that was willing to use deadly force and who was a trained Marine.
When I received the discovery containing the photographs that police took at the crime scene, there were about 300 photographs of everything possible on that street. I got photographs of cigarette butts in the street. I got photographs of an old iced tea bottle in the street. I got photographs of every blade of grass in that neighborhood, but there was not one single close-up photograph showing either of those two signs.
I clearly understood that a decision had been made: those signs would not help their argument. Those signs showed that Spencer operated under a belief that this was a dangerous person. Pictures of those signs wouldn’t help law enforcement’s initial position. The police ignored those signs and that showed me how much they wanted to believe their version. They were not willing to look at any other evidence. At trial, when we showed blown up photographs of those signs, I think they lost their credibility.
Hayes: How did you come to be in possession of photographs of the signs if the police didn’t take them?
Ferro: Great question! Family members of the deceased took down those signs soon after the shooting, but Spencer’s family assessed very quickly that the signs were important. They went out there and actually took photographs within a day of the shooting. I give his family all the credit in the world.
I relied upon their photographs of those signs at trial. They were critical. If his family had not been there so quickly, those signs would have been lost forever and we wouldn’t have been able to use them to show how the deceased had portrayed himself.
Hayes: Let’s talk now about the trial itself. First, how long did the trial take?
Ferro: One week. We started on Monday and we received our jury verdict at 8:30 on Friday evening.
Hayes: In a week-long trial, how many hours a day, typically, would you put in on a trial like that? How much time did you put in on this one?
Ferro: During the course of this trial, I would say we worked 15 to 20 hours a day. The trial took from 8 to 5 every day while we were in and around the courtroom with the family. Then, as soon as the trial recessed, we’d take a brief break, collect our thoughts for the day and assess what took place that day so we could get ready for the next day.
Hayes: I think people don’t understand that the attorneys just don’t work 8 to 5 on trial day.
Ferro: Preparation is the bulk of the work. For each hour you’re in court, you spend three hours preparing, at least that’s what the good attorneys do. You are watching a finely-tuned production when we’re in front of that court and jury. Every aspect has to go the way that we planned it, because every piece that we put in has a meaning and its own importance. That just doesn’t happen by accident. If everything goes well, the preparation leading up to trial and during the course of trial makes the presentation look seamless.
There were very few things that happened in this case that I did not anticipate and prepare for. Candidly, that does not always happen. The way in which this case came together, the way in which the experts testified, the cross-examination of the Commonwealth’s witnesses, it was, in my opinion, about as close to a perfect defense trial as you could expect.
Hayes: I was quite impressed with how fluid and smooth your part of the trial was, especially when I was cross-examined and when you questioned Spencer. I remember thinking, “This guy’s good.” I’m not saying this to embarrass you, but I was impressed. I’ve seen a lot of attorneys, and you were spot on.
Ferro: I appreciate the compliment. A lot of effort went into the trial, and there’s no doubt in my mind that I had a lot of good pieces to work with. I had a lot of people behind the scenes who greatly helped me get to that point.
Think about a bigger picture: if you’re in Spencer’s situation, what do you want in an attorney? Well, my opinion is that you want a trial lawyer. Now, a trial lawyer may or may not have a background in guns, may or may not have a background specifically in self defense, but he has developed a comfort in trying cases. What you want at the end of the day is someone who can tell your story to a jury in a meaningful and understandable fashion. I think a trial lawyer gets that over the course of many years, through many different cases.
The law of self defense certainly has its vagaries, but overall, it’s an understandable concept. It’s really plugging in the facts that made our case self defense.
The jury needs to believe that the defense lawyer is the most competent person in the room. The jury needs to know that you understand the issues and that there’s no doubt in your mind about what is the right result of the trial.
The jury needs to know that you can be trusted. The more prepared you are the more the jury knows that you’re not guessing. They don’t think that you’re making this up along the way. They realize that you know this and that you can be believed. Believability is an important factor.
Hayes: You mentioned jurors, so why don’t we talk about jury selection and what concerns you had about jury selection on this case?
Ferro: The big concern was use of force and firearms. Jurors are a cross-section of your county. Here, we’re generally rural, so we have a lot of hunters. Going into jury selection there was no doubt in my mind that I was going to have people that were familiar with and owned guns. I wanted jurors who had that knowledge and familiarity. I knew that was going to be beneficial.
I believe probably 90 percent of our jury pool answered that they either owned guns or lived in a home with individuals who had guns. I thought, we have a nice pool to select from; at least we could get individuals who weren’t going to be terrified by firearms, who generally were aware of their utility and the right of people to carry them. We didn’t have to educate jurors. Finding jurors who believed in the Second Amendment, who believed in the right to carry firearms, was critical. That was easier in our jury pool than I thought it would be.
This shooting was self defense. We had to find jurors who not only believed in the right to carry firearms, but also believed in the right to use them when necessary. There are a lot of people who are not willing to take that step. They’ll say, “Yeah, firearms are fine, it’s OK to carry them, but don’t be wrong.”
If you’re wrong, then God help you! In this case, we needed jurors who understood that the right to carry a firearm and the right to protect yourself occurs in a lot of different circumstances. We needed them to understand that you don’t necessarily have to be right; you just have to be reasonable. We took a lot of time talking to jurors about reasonableness; that was really the main thrust. Other than that, I was trying to avoid jurors with any preconceived notions.
I also had a very subtle concern in this particular case. The deceased was a military veteran, a former Marine. While I wanted to make sure we were getting individuals who believed in the right to carry, I was leery about potentially having jurors with unyielding allegiance to the military, either former Marines or people with family members who are Marines, that might have a natural sympathy for the deceased.
Hayes: Once the jury was selected, you gave the opening statements. What was your opening statement’s thrust?
Ferro: I really tried to get across to the jury that there were two sides of this story. I asked them to keep an open mind, because the Commonwealth gets to go first and they were going to get to present all of the bad facts. All the facts we’ve already been over while we were talking here: a shooting in broad daylight, multiple witnesses, unarmed man, a shot in the back, et cetera.
My main goal in the opening statement was to introduce the concept of two very distinct sides of this story and to introduce them to the concept of self defense. I told the jury that the case was not about murder. The case was about rights and responsibilities.
The case was about the right to carry a firearm. It was about the right to defend yourself. It was about acting responsibly. If they believed in all those concepts, and they listened to all the evidence in a fair and dispassionate way, and withheld judgment until they heard the whole story, I said that I thought they would ultimately find in our favor.
In PA, you don’t have to make an opening statement; you can defer it. In this case, there was never a question of whether we would make an opening statement! We needed to get ahead of this freight train. We needed to get our story out there, because there were two sides to this story. You can look at the same event in one way, or you could look at the same event and come to a different conclusion: that it was self defense.
Hayes: Spencer testified at the trial. He was the first witness, wasn’t he?
Ferro: He was the first witness. We put him on first because if he did well, it set the stage for the rest of our defense. But speaking candidly, if his testimony went poorly, which can happen for a number of different reasons–not because you’re dishonest, but because the pressure gets to you and you just don’t come across well–we would still have plenty of time and plenty of good witnesses to rehabilitate our case. We had a number of very compelling witnesses we were able to call; witnesses that I thought would be difficult to cross-examine and question their credibility.
Hayes: Spencer, I was able to watch your testimony and I was really quite amazed at how articulate you were. Could you tell us what you were feeling while testifying?
Newcomer: Well, I’d always heard the term “hot seat.” It’s used for coaches that are going to be fired and whatnot. You don’t know what the term “hot seat” means until you’re on the witness stand; the pressure is unbelievable. I’m never going to have more motivation to do well than I had that day. I mean, my life was on the line.
If I could not articulate what I was thinking and why I took the actions that I did, my life was basically over. One of the big parts of self defense is the need to articulate why you took these steps. Being up there on the stand is emotionally draining. I never want to have to go through it again, I can tell you that. But you’re never going to have more motivation in your life to do well.
Hayes: Do you think that the prosecutor went after you pretty hard?
Newcomer: I don’t know. I mean, the only experience I’d ever had before was seeing these things on TV. I know the prosecutor tried to get me to admit to things that I just would not do. It seemed to me that he tried and tried for a while and then just realized it wasn’t helping him to keep talking. He wasn’t getting anywhere. My talking was not helping him. His talking was hurting him.
Hayes: Yes, my perception was that finally the prosecutor just kind of gave up. After Spencer testified, I was called up. It was interesting, because I was contacted initially to work on issues of dynamics of violent encounters, the deceased’s twisting motion, the trajectory, how he could be shot in the front and have a hole in the back, all of which I’ve testified to many times at different trials. Then this turned into a blood spatter case. How did that come about?
Ferro: Well, that was really a decision the prosecution made late in the game. We had photographs which depicted the phone with some blood on it near the right hand of the deceased. Early on, the prosecutor didn’t really make a big deal about it. In the course of the trial, they saw our defense. They saw that we were going to proceed very strongly on the fact that the deceased had pulled the phone out of his pocket at a critical time. Spencer believed it was a firearm, and therefore, shot in self defense. [Photo, right: Scene photos show the phone came to rest above the deceased’s right shoulder near his head.]
Once they became aware that was the thrust of where we were going to go, they tried to show that blood spatter would not be consistent with Spencer’s version that the deceased pulled the cell phone out of the pocket with his right hand.
You were able to analyze the blood spatter and suggest several different theories that were consistent with what Spencer saw. He saw a gun coming out of the pocket in the right hand, and you identified the blood spatter as coming from one of the frontal wounds, hitting the phone as it came out of the pocket.
Your analysis did a couple of things for us. Number one, it created a scenario that put the phone in the hand at the place it needed to be at the critical time. It showed it happened instantaneously. Your expert analysis was almost like having a picture of where his hand was at the time Spencer’s brain had to decide whether it held a gun.
That took away their claim that the phone wasn’t out of his pocket, because obviously, if that phone was in the pocket at the time of the shooting, we had a problem. There would have been no impending belief of deadly force being used against Spencer. If Wintermyer had just been bearing down on Spencer, without the threat of whatever that was coming out his pocket, it would be very difficult to convince a jury in Pennsylvania that deadly force was absolutely necessary. I’m not saying it would have been impossible, but it would have been incredibly difficult, so that blood spatter really helped us.
Hayes: Chris, you also had me testify as an expert about the trajectory of the shots and how Wintermyer twisted or turned away. What aspects did you need explained for the jury?
Ferro: We had a big issue with respect to the trajectory of the bullets. The bullets came in at all different angles when they struck the deceased. We wanted to clearly show to the jury that the wounds were suffered by the decedent in a way that was consistent with how Spencer described the shooting.
The prosecution wanted to show that the angles essentially showed that the deceased was cowering in fear or giving up. We wanted to show that the position of the wounds was consistent with someone who was attacking.
You and I talked about how to show the jury the relative positions between Spencer and the decedent, and how it was consistent with Spencer’s version of the event. We very effectively utilized a mannequin that was the decedent’s height.
You brought in a series of photographs of an individual who was approximately Spencer’s size, which showed the respective shooting positions between him and the decedent which allowed for the various hits and the angles. The pictures did a great job of showing the jury exactly how the decedent was positioned and how Spencer was positioned. It fell right into our theory of the case.
We were lucky that you brought the dummy to court. We set it up with dowel rods showing the position of the bullets and it made a really effective 3D presentation of exactly where Spencer was and exactly where the decedent was. I completely believe that jurors are visual. You can talk to them only so much during the course of a week before you lose them. But show them something, give them something animated that they can really focus on, and you really have a significant bang for your buck.
Anytime you can use demonstrative evidence, it’s a good idea. The mannequin highlighted the bladed, pre-attack position that you testified about. It showed the decedent on the attack, coming toward Spencer. It put his right hand in a position where it would have been difficult for Spencer to assess exactly what was in it.
Hayes: I view the role of an expert as that of an educator who teaches the jury what the trial lawyer needs them to know. At one point, I asked the judge, “May I get up and approach the jury with the dummy?” We walked right up to within about four or five feet of the front row of the jury and I positioned the mannequin so each juror could see the trajectory rods. Through the mannequin, they could see how Wintermyer had to have been lunging forward in an aggressive posture and how his body had to be bladed for those shots to have hit him where they did.
Importantly, the prosecution described the shots hitting at the same angle. They obviously knew where the bullets were, too, but they wanted to prove that the angle was downward into the top of the chest.
Ferro: Without you as our expert, the Commonwealth would have asserted that the deceased was cowering in fear with his head down, almost crouching to get away. I think the jury would have bought that completely, if not for our demonstration with the mannequin and the dowels.
Hayes: It came together when I was able to show how Wintermyer spun around so that the fourth shot was right in the back, at the angle that the autopsy showed. It was pretty effective. I went out and bought the mannequin just for this case. I felt it necessary and it certainly was.
Ferro: I agree.
Editor’s note: This brings our report to the closing statements in Spencer Newcomer’s trial. Owing to the length of this interview, we will take a break at this point and return with the final segment of this story in our March 2019 edition of this journal. We hope you will return next month to read the conclusion.
To read more of this month's journal, please click here.