Seizures and Shootings : The Unique Defense in the Cape Coral Attempted Murder Case

Yousel Rivera

Yousel Rivera

Currently underway in downtown Fort Myers is the Attempted Murder trial of Yousel Rivera. He is alleged to have shot Cape Coral Officer David Wagoner, and is charged with Attempted First Degree Murder of a Law Enforcement Officer With a Firearm, punishable by life in prison. If convicted as charged, he will be sentenced to a minimum of 25 years to be served day-or-day, that is, without the possibility of parole, and could be given life in prison. The incident was caught on video, and after Rivera shot at the officer, he allegedly jumped on top of the driver and drove off, ultimately crashing into a house. He was allegedly naked and hiding in a trash can when officers arrested him.

The Defense is not contesting that it was Rivera who fired the shots at Officer Wagoner. Instead, the defense theory is that it was not attempted murder, because the shots were not voluntary. The defense is claiming that Mr. Rivera had a seizure, which prompted him to pull the trigger. If the Defense can demonstrate that the shots were not voluntary, the specific intent to cause death would be negated and defeat the attempted murder charge. The Defense does not have to prove that it happened, only to create a reasonable doubt in the mind of the jury that the act was intentional.

Defense attorney David Brener is making a fight of the case. On Friday, two doctors testified about Rivera’s mental issues, and one of the them, Dr. Allan Waldman testified that in his opinion, Rivera was having a seizure at the time of the shooting. Video was played of Rivera in the back of a patrol car subsequent to the arrest which depicted Rivera rolling around. The doctor testified that this was evidence of a seizure, and that he was not resisting arrest, but was in the throes of a seizure. Earlier, one of the officers testified that Rivera was speaking incomprehensibly when he was captured, and had removed his clothing which is suggestive that he may have been having an epileptic episode, according to the doctor. Also, there was testimony regarding his history, including his grandmother who testified that he suffered convulsions and episodes of incomprehension as a child. His ex-girlfriend testified as a state’s witness, but admitted that he was acting weird the night of the shooting: arguing nonsensically and mentioning Fidel Castro. Dr. Waldman testified that he had a reasonable degree of medical certainty that Rivera lacked the requisite intent to shoot the officer.

Still, the defense has an uphill battle. Putting aside the sympathy for the officer who was shot while conducting his duties, the facts remain damning. The seizure would not have caused Rivera to have a gun, or to pull it on the officer that night. All three of the shots he fired struck the officer center-mass (two in the bullet-proof vest), which is suggestive that they may have found an intended target. Attorney Brener is doing a good job, but this fight may be too much to overcome. The trial should conclude in the next day or so. The state will likely call their own doctor to rebut the testimony of Rivera’s doctors.

*I should clarify the defense is not really unique… there are other reported cases of the use of seizures or epilepsy to argue that there was no intent for the actions committed in those cases.

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