Editor’s Note: The three-part story that follows, which originally appeared in Concealed Carry Magazine‘s January 2021 issue, is an account of a self-defense incident that occurred in North Carolina in 2019 and the legal turmoil that followed. The details within the story were confirmed through interviews, police records and court documents. The USCCA Member featured in the story has asked that his full name not be used in order to help protect his identity. It has been less than two years since this event occurred, and while his life is largely back to normal, he doesn’t want to attract unwanted attention to himself or his family. We have also left out the names of his family members and others who were involved in this incident, as well as specific dates and locations.
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Marcilliat received a call about Brian’s incident between 8 and 9 p.m. that night.
He jumped in his car early the next morning and made the long drive from Raleigh, North Carolina, to the jail where Brian was held. Marcilliat was hoping to represent Brian in the case, but the decision was completely in Brian’s hands.
“Something about the case just jumped out at me from the very beginning,” Marcilliat explained. “Just the way it was described to me, nothing about it … I’ve done thousands of consultations on criminal cases, and you hear a lot of the same things over and over again, and nothing about this case was normal.”
Brian quickly accepted Marcilliat as his representative, but he says the choice wasn’t his at all. It was God’s. Brian just knew he’d be in great hands.
But if you are a concealed carry holder and you’re exercising your own rights, you should not assume that the judicial system will understand immediately.
Marcilliat’s initial priority was to get Brian out of jail.
“The first goal was to convince the DA that there were enough concerns about the evidence and enough evidence that it was, in fact, a self-defense shooting to justify the DA agreeing to a bond,” Marcilliat said. “You always want your client to be able to fight from the outside, not the inside. And then, after that, the goal shifts to actually resolving the case.”
By North Carolina state statute, capital cases — cases that could result in death-sentence verdicts — are not eligible for bond. First-degree murder falls into this category. Unless the district attorney declared that the case would be tried as a non-capital offense, Brian would, by law, not be offered the opportunity to be released on bail.
District attorneys in North Carolina are not required to make the decision on whether a case will proceed as a capital offense or a non-capital offense until after indictment, which means the case has already gone through the grand jury and has proceeded from district court to superior court. District attorneys are elected officials, and it is politically perilous to start releasing inmates charged with murder back into their counties. They typically don’t make a decision to declare a murder case a non-capital offense — and offer bond — until they have to, months or more after an arrest.
Combine that with a severely backlogged court system in the county in which the incident occurred, and Marcilliat could see immediately that even the rosiest propositions for Brian, sadly, likely meant months incarcerated.
Adapting to Jail
After his initial meeting with Marcilliat, Brian headed back to his cell for a torturous first few days behind bars.
“I didn’t have access to any books or anything,” he said. “It was just me in my cell by myself the entire weekend. The only time they let you out in A Block is every other day for one hour by yourself. And then while you’re even out in the open bay by yourself, you still have shackles on.”
The guards treated him well though — maybe because they had heard he was a military vet and several of them were too, maybe because they had heard the details of his case and felt sympathy for his situation, or maybe because it was clear that he wasn’t going to give them any trouble. In any case, it made life a little bit easier for Brian.
After a few days, he was ushered to court for a preliminary hearing.
“My oldest daughter and my ex-wife were in the courthouse, bawling their eyes out,” Brian said. “Like I said, I’d never been arrested. Anybody that knows me was just in shock that this happened. My neighbors — I gather they saw it on the news or in the paper — and then just family members or friends from around the country, they couldn’t believe that happened. It doesn’t happen to somebody like me.”
Marcilliat could see immediately that even the rosiest propositions for Brian, sadly, likely meant months incarcerated.
After about a week, Brian was moved to a cell block that allowed inmates out of their cells — with a quarter of the other inmates in that block — for two hours a day. Brian relied on his faith to keep his spirits up and slowly adapted to his new circumstances.
“It was rough at first, but I guess you just accept the fact that you’re in there,” he said.
For the most part, the other inmates left Brian alone, which he appreciated. He found out later that he had a bit of an accidental assist in that area from the local newspaper. The brief mention of Brian’s incident in the paper only said that he was suspected of shooting and killing someone, that he was arrested for first-degree murder, and that the incident may have been related to an act of arson committed at the same address.
“You know how the rumor mill works, especially in jail,” Brian said. “It turned out that the other inmates thought that I had shot two people and then burned them alive.”
The hardest part of his time in jail though was probably that almost every inmate was a walking-talking example of how slow the justice system works in his county.
“Other people in there who were there for some serious crimes, they were probably going to prison for a long time,” Brian said, “but they’d been in there going on two years, just waiting for a court date, waiting for a trial.”
He spoke with one inmate who had arrived around the same time. Within weeks, the inmate lost his job and was about to lose his home and his truck because he couldn’t make payments from inside jail. He had no one on the outside helping him out while he tried to prove his innocence.
Brian felt fortunate that he did have help. His mother came from out of state to help take care of his home and his children while he was in jail. Later, his father came to help as well. Brian’s truck was already paid for, and since he was retired from the Army and in school, he didn’t have a job to lose.
On the outside, Marcilliat dug into the case details and was shocked at what he found (or, more accurately, what he didn’t find).
“From the very moment that I got the case, I was, and continue to be, No. 1, shocked that he [Brian] was charged, and No. 2, shocked that he was charged so quickly without much more investigation on a charge of first-degree murder,” Marcilliat said. “A lot of the time, you’re going to see the state and the authorities take their time before they charge somebody with something that carries life in prison or death. And so for them to charge within hours of the shooting occurring, how could they possibly have done the kind of investigation that you would need to do to determine whether it was or was not self-defense? It just wasn’t done.”
Even without concrete evidence, it’s simply not very difficult to charge someone with murder in North Carolina, Marcilliat explained. In Brian’s case, a detective filed the charges just more than three hours after the incident took place.
“In our state, you can get a first-degree murder warrant against someone without any consultation with the district attorney’s office, without any say-so by a judge or anyone that possesses a law degree,” Marcilliat said.
While the lack of a thorough investigation was baffling to Marcilliat, he was not surprised that the hectic and complex nature of what officers found when they arrived at the scene — a burned trailer, a man with a gunshot wound clinging to life and a small yard teeming with activity — caused some confusion.
“When the police come on scene, they are confronting chaos,” Marcilliat said. “I mean, it’s an odd scene to untangle.”
Unfortunately for Brian, most of the unraveling didn’t take place until well after he was charged with murder and locked behind bars.
“That analysis really didn’t happen until after the fact,” Marcilliat said, “and it was myself doing that analysis and getting the district attorney to look at what we were seeing in the case and what we were not seeing in the case.”
Moving the Truck
As Marcilliat pieced together the details of the case, he realized there were a number of inconsistencies and “mistaken assumptions” in the police reports that were clouding Brian’s claim of self-defense, perhaps none bigger than where Brian was when he fired the single shot.
“Specifically, I believe that they misunderstood exactly where Brian was standing and exactly how far away he was from the aggressor at the time he discharged his firearm,” Marcilliat said.
In Brian’s account of the incident to police, he said he was next to the door of his truck when he shot. Police measured the distance between the door of the truck and where the man fell to the ground and came up with 17 feet, 3 inches, which they put into their reports. As police considered the validity of Brian’s account of the incident, the distances and angles he mentioned simply didn’t add up to what they found at the scene.
If I could change anything, I just wouldn’t have gone over there in the first place.
What the police failed to take into account was that Brian had moved his truck after the shot (and before police arrived) in order to allow the paramedics to have better access to the wounded man. In reality, the man was barely more than an arm’s length away from Brian — and advancing with a deadly weapon — when Brian fired the shot.
Another key element in the case was the presence of eyewitness accounts, especially from the two women who were in the yard when Brian shot the attacker.
“There were two on-scene witnesses who were sympathetic to the alleged victim [and] who told a tale,” Marcilliat said.
In their accounts, which Marcilliat described as “somewhere between skewed and outright fabrications,” Brian was the aggressor and the man he shot was peacefully trying to get some of his belongings from the trailer.
There were inconsistencies between the two accounts, but evidently the police initially found those two versions of the events more believable than the descriptions from Brian, his ex-wife and the third eyewitness, which matched closely in details.
Marcilliat sat down with the district attorney on multiple occasions and discussed the inconsistencies he found in the investigation. With little progress in his attempts to reach a bond agreement or convince the district attorney to declare the incident an act of self-defense, all signs, unfortunately, pointed to the case eventually moving to trial.
“In my initial meetings with the prosecutor, he indicated an intent to move forward,” Marcilliat said. “And I told him that there would not be any plea agreements, more than likely, because we were taking the position 100 percent that it was self-defense.”
The district attorney was still considering what charges the county would pursue in the indictment, and Marcilliat felt it was possible that Brian could be indicted on manslaughter or another lesser charge.
Then, out of blue, the district attorney called Marcilliat with some surprise news: He decided to give his consent for bond. Marcilliat suggested the bond be set at $100,000, and the DA agreed. It was a surprisingly low amount for someone charged with murder. To Marcilliat, it was the first concrete sign that the district attorney was having some second thoughts about the evidence in the case.
“That’s the fastest that I’ve ever seen any defendant get bond on a first-degree murder case,” Marcilliat said.
The bondsman, also surprised by the low number, didn’t even ask Brian for the standard 10 percent down.
“He said, ‘Just come up with $8,500,’” Brian said.
The self-defense liability insurance benefit included with the USCCA Membership plan that Brian had at the time of his incident provided up to $50,000 for defense expenses. (As of October 2020, all USCCA Members now get self-defense liability insurance with a $250,000 limit applicable to defense expenses.) Since Brian had already exhausted $50,000 in his attorney retainer fees, Brian’s sisters pooled the bail money together. Brian was finally able to walk out of jail 110 days after his arrest.
With Brian out on bond, Marcilliat focused his attention on turning the crack in the district attorney’s stance on the case into a full-out breach. The facts in the case all pointed to clear and justified self-defense, he argued.
Finally, 144 days after the incident, Marcilliat got the news he was hoping for.
“The DA called me one day and said, ‘I’ve looked at it more, and I now agree that it’s not a case that I want to put in front of a jury. It’s a self-defense case, and we’re going to dismiss it.’”
Marcilliat was beyond thrilled to deliver the news to Brian and his family.
“I mean, it was just … what an incredible relief, what a burden lifted,” Marcilliat said.
So is there anything Brian could have done differently to avoid being arrested and spending three and a half months in jail while the legal aftermath of his self-defense incident played out?
“He used his concealed carry lawfully,” Marcilliat reflected. “He did so at a time when his back was to his own daughter, and the aggressor was advancing not only on him but also on his small child, who was in the truck behind him. And he did so with the knowledge that that person had likely committed arson the night before. So, if that person is advancing on me with a lead pipe, or tire iron or whatever it was, I’m going to reasonably conclude that, if I don’t shoot this person, I could suffer death or great bodily harm. And that is the essence of self-defense. And then he remained on scene. He called 911 himself. He and his ex-wife render as much medical aid as they can, and then they’re completely and fully cooperative with law enforcement at all times. I don’t know what else he could have possibly done.”
Brian has just one regret.
“I’ve thought about that a hundred times, a thousand times a day,” he acknowledged. “If I could change anything, I just wouldn’t have gone over there in the first place.”
But apart from that bit of 20/20 hindsight, there’s little he’d change. Maybe call the USCCA Critical Response Team the second he was off the phone with the 911 dispatcher? He shudders to think what would have happened if he didn’t have that USCCA Membership.
“I’d probably still be in jail,” Brian opines.
Despite his case never even making it to trial, Brian’s legal fees and bond fees totaled approximately $68,500. After the $50,000 from his USCCA self-defense liability insurance benefit was exhausted, Brian had to come up with approximately $18,500 on his own. Three and a half months in jail and $18,500 is a steep price to pay to prove your innocence, but it certainly beats the alternative.
Brian tells all of his friends and family to seriously consider joining the USCCA, which now boasts more than 500,000 members, for the training, education and self-defense insurance benefits.
“Look, if this happened to me, it can happen to anybody,” Brian said.
Marcilliat echoed that sentiment.
“This could happen to anyone at any time,” he said. “You hope it never does, and you hope you’re prepared if something like that does happen. But if you are a concealed carry holder and you’re exercising your own rights, you should not assume that the judicial system will understand immediately, or ever, that that’s what you were doing.”
Brian’s USCCA Membership, including the self-defense liability insurance, allowed for extremely early and aggressive advocacy on Brian’s behalf, which was the underlying key to eventually getting the case dismissed, according to Marcilliat.
“I think that was a big, big factor in how this all ultimately went down, because I was able to start communicating with the district attorney much, much earlier in the process than normally would be the case when you retain counsel,” he said. “And, often when you’re retained on a murder case, many times, it’s months or even more than a year into the prosecution of the case before the family is able to bring you on. And, in this case, it was more like hours.”
Help From Above
Looking back on that fateful day, Brian can’t help but feel lucky. Despite the incredibly trying months that followed the incident, he knows he’s extremely fortunate to be a free man. He’s blessed that, less than two years later, his life is back to “normal” again.
Deep down though, Brian doesn’t believe it had anything to do with luck.
“God’s hand was on this situation from the start,” he said. “I didn’t get out of jail right away, but a lot of things transpired that showed me that He was in control.”
“Confronting Chaos,” Part 3 of 3
Jailed for months while facing a first-degree murder charge, a North Carolina man found hope in his faith and the USCCA.