It should be noted that although the investigator Gil Alon testified to this, he is not an expert witness in firearms. Therefore, his testimony should be given limited specific weight. On the other hand, no opinion was submitted on behalf of the defendant as to the manner in which the two bullets were fired from the defendant's gun. As stated, I do not accept the defendant's explanation that these were discharged unintentionally due to the pressure created on the defendant's body and/or on the defendant's hand as a result of the deceased's attempts to snatch the gun, and this does not substantiate the claim that the bullets were unintentionally discharged, or that the defendant had no control over his movements, and in particular the pressure exerted by his finger on the trigger of the gun. In light of this, in my opinion, the defendant's argument that he has the prescribed "lack of control" qualification should be rejected In section 34g to the Penal Law. It should also be noted that according to Dr. Kotik's final opinion, one of the bullets hit the deceased's shoulder, while the other penetrated the deceased's heart and led to his death.
The third part of the event
- This part includes the deceased's escape to his car after the struggle with the defendant on the ground, the shooting of the deceased in the back of the deceased who was moving away from him, the collapse of the deceased on the road next to his car, the defendant's departure from the scene and his subsequent return to the scene with his sister Kristina.
- According to the indictment, after the defendant fired two shots at the deceased during their struggle on the ground, the deceased, who felt that he had been hit, fled back to the Toyota, turning his back on the defendant. The defendant stood up, and while the deceased ran to his car, he aimed the pistol and fired several shots at the deceased with the intention of injuring him and killing him, until the ammunition in the magazine of his pistol ran out. The deceased arrived at the Toyota and collapsed near the door of his car. The defendant, who saw that the deceased had collapsed, approached him, looked at him, and then continued to the Mitsubishi that was standing nearby and quickly left the scene.
The defendant arrived at his home, picked up his sister Kristina, and asked her to tell the police investigators that she was the one driving the Mitsubishi before the shooting and the two returned to the scene of the murder, with Kristina driving the Mitsubishi. When the defendant and Kristina returned to the scene, Kristina told the policewoman who was at the scene that she was the one driving the Mitsubishi, but a short time later she retracted her statement and told the police investigators the truth.
- As stated, the shooting that the defendant fired at the deceased while he was moving away in the direction of his car was not the fatal shooting that led to the death of the deceased. As detailed above, it was the shooting that the defendant carried out during the struggle between him and the deceased on the ground that caused the death of the deceased, when one of the two bullets that were fired penetrated the deceased's heart and lungs.
- According to the defendant, since he was not even aware that the deceased had been shot during the struggle on the floor, he fired at the deceased's back in order to injure him. The defendant insisted that if he had known that the deceased had already been shot, he would not have continued to shoot him, since there was no need to do so.
If we reject the defendant's argument that during the struggle the two bullets were fired from his pistol without him noticing or feeling it, there is no basis for the defendant's claim above and the conclusion is that the defendant continued to fire at the deceased's back even after he knew that the deceased had already been shot by him and had been injured earlier, although this time, this shot did not hit the deceased.
- As stated, the defendant claimed that he shot at the deceased when he got up and returned to his car after the struggle between them, because he feared that the deceased intended to remove a weapon or any assault weapon from his vehicle and harm him. Therefore, he claimed, he shot the deceased in order to neutralize him. The defendant emphasized that he had not shot the deceased until that point (as stated, a claim that was rejected by me), because he did not feel a real danger to his life, in view of the fact that the deceased was unarmed. However, when the deceased returned to his car, according to the defendant, in order to equip himself with a weapon, the defendant felt a real danger to his life, and therefore at that stage he felt that he had no choice but to shoot the deceased. I do not accept this claim, which is unreasonable, illogical, inconsistent with common sense and life experience, and inconsistent with the findings I have reached.
- As detailed above, I rejected the defendant's argument that he believed that the deceased was a terrorist and that it was a terrorist incident, and I determined that the confrontation between the defendant and the deceased developed around the manner in which they were driving on the road. This is also supported by the fact that up to that stage, and throughout the entire incident, the deceased did not possess a weapon or an assault weapon and did not remove such a weapon from his vehicle, despite the opportunities he had to do so. At the last stage of the incident, after the deceased was shot during the struggle between him and the defendant, did he run to his car with his last strength in order to remove an assault weapon from him? I am of the opinion that the answer to this question is in the negative.
- As can be seen from the testimonies of the policemen detailed in detail above, the deceased's car was searched and no weapon or other tool that could be used for an assault was found in it. In this context, reference should be made to the testimony of forensic investigator Noam Amar, as well as to the report he prepared and the photographs he took in this context (scene inspection report P/64, scene photos P/29). It follows that the deceased's vehicle was searched by forensic police and no relevant findings were found. In addition, the vehicle was previously inspected at the scene by a sapper and no weapon or assault weapon was found in it, and therefore, the vehicle was acquitted. Reference should also be made to the testimony of Sergeant Bashir Shahin and the memoranda he prepared (P/41, P/42), from which it appears that he searched the deceased's car in the parking lot of the police station and found nothing in it.
- I am aware of the defendant's argument that there is a possibility that a weapon or a tool that could be used for an assault was removed from the deceased's vehicle, between the end of the incident and the search of the deceased's vehicle by the police. However, an examination of the action reports prepared by the police officers who were present at the scene, as well as the body camera footage of the policemen, shows that the scene was closed by a marking tape and that many police officers were present at the scene who were present, among other things, near the deceased's car. The testimonies of the police also indicate that they acted to close the scene and remove people from the scene. In these circumstances, the possibility that something was removed from the deceased's vehicle without the police noticing it is unreasonable and I do not find that it has anything to rely on.
- Moreover, I do not believe that the defendant himself believed that the deceased returned to his vehicle in order to remove a weapon from him with which he could have harmed the defendant, and his various statements in this context contradict each other. Moreover. An examination of the defendant's arguments in this context shows that they were made in vain, without the defendant having a reasonable explanation for the fear that the deceased would remove a weapon from his vehicle, and it must be concluded that these were made in order to justify the defendant's shooting of the deceased, with his back to the defendant.
- Thus, in his first interrogation with the police, the defendant claimed, on the one hand, that the deceased ran to his car in order to fetch something, but on the other hand, he claimed that he saw the deceased holding something in his hand as he got out of his car (P/2B, p. 10, paras. 1-9):
"Interrogator, Dennis Daniel Mukin: I saw him running towards the car