Serious Crimes Case (Nazareth) 22205-06-23 State of Israel v. Dennis Mukin - part 4

The main arguments of the defendant in his summaries:

56. In his summary, counsel for the defendant argued that the two bullets that led to the death of the deceased were discharged from the defendant's pistol during the violent struggle against the deceased, who tried to snatch his weapon. Hence, we are dealing with an act that was done without the defendant having control over his physical movements and is therefore protected under the prescribed qualification In section 34g to the Penal Law.  In light of this, he argued that in the defendant's case, two main questions arise, the first concerning the firing of two bullets while the struggle on the ground, the voluntary firing as claimed by the accuser, or the ejection of a bullet as claimed by the accused.  The second is what is the significance of given, if any, to the conduct and conduct of the defendant before and during the encounter with the deceased, and whether it can be classified as "improper conduct", which denies the defendant the defense of lack of control.
57. According to counsel for the defendant, watching the video documenting the incident shows that during the entire encounter between the defendant and the deceased, even before the deceased got out of his car and attacked the defendant, as well as during the entire struggle between them until the defendant fell to the ground, the defendant held his gun and had no impediment to shooting the deceased. However, the defendant chose not to do so because he did not notice a weapon in the deceased's hands.  The defendant's version that he did not shoot at the deceased, but only at the final stage of the incident, and after the deceased broke away from him while shouting threatening and ran towards his car, then the defendant feared that the deceased would take out a weapon from his car and hit him again, is consistent with what is seen in the video.  This is exactly as the defendant described at the stage when his interrogators had not yet shown him the video.
58. According to the defendant's counsel, an analysis of the critical seconds in the video in which the same two shots were fired from the gun – the position of the defendant's body, the fact that his body was still moving as a result of the violent fall to the ground, the fact that the deceased pulled the hand of the defendant holding the gun in an attempt to snatch his weapon, shows that at the very least, the defendant's version that this was an involuntary shooting that occurred while his body, and especially by his hand holding the gun, exerted force that deprives him of the ability to control its movements and with the movement of his finger on the trigger of the gun after the second warning shot.
59. He further claims that the defendant's spontaneous reactions during his interrogations when the video was first shown to him and the fact that during the struggle on the floor he may have fired one or two bullets from his pistol (in his second interrogation) and later on, when the pathological opinion stating that the deceased was shot at close range in the chest (in his third interrogation) testify best to the sincerity of the defendant's version and the fact that he was indeed not aware of the fact that during the struggle on the floor the same two bullets were fired from his pistol.
60. Thus, it was argued that the defendant's consistent version that he did not shoot the deceased during the struggle on the floor and his detailed explanations as to why he did not do so, as well as his claim that when he fired at the deceased at the stage when the deceased was running towards his car, cannot coexist with the possibility that the defendant knew that he had fired at the deceased already at the stage of the struggle and when the deceased tried to snatch his weapon – a shooting that is clearly consistent with a claim of self-defense – but he consciously chose to claim that it was precisely At that point, he did not shoot.
61. Counsel for the defendant referred to the relevant seconds in the video documenting the incident, while emphasizing that, as appears from the defendant's words, from the moment the defendant pulled out his pistol and fired the first warning shot in the air, the gun was in his hand and the index finger was in the trigger reserve. Thus, it is only natural that during a struggle, whether as a result of his fall and the attempt to stabilize his body or as a result of the deceased's counter-pulling of his hand holding the pistol, the trigger will be triggered with sufficient pressure to eject a bullet.  Counsel for the defendant argued that another important point in this matter, which has the power to teach about the truth and sincerity of the defendant's version, is the fact that at no stage did the defendant claim that he remembered that the deceased was holding his pistol.  This was even after the defendant was exposed to the video of the incident and realized that it was difficult to distinguish with certainty whether the deceased was holding the gun himself or the hand holding it.  In other words, the defendant does not intensify the incident and does not add details to it that could help him.
62. With regard to the accuser's arguments that it is not possible that two bullets were fired from the defendant's pistol, counsel for the defendant argued that the accuser did not present any expert opinion on her behalf as to the mechanism by which the defendant used the shooting, and made do with the testimony of Sgt. Gil Alon, who is not an expert in firearms, and his testimony in this context is without any real weight. On the merits of the matter, counsel for the defendant argued that watching the video in which the defendant's body is seen being violently thrown to the ground, with the two bullets fired from the gun while the defendant's body is in constant motion following that fall, and when forces are applied to his body, both the forces exerted as a result of the fall and the instinct to stabilize the body and stop its movement, and the forces exerted by the deceased's hand holding the gun.  They show that it is quite possible that during that fall to the ground, pressure was applied to the trigger of the gun that was enough to cause the first bullet to eject.  During the continued fall and the movement of the defendant's body, the pressure on the trigger was released, and in response to the pull on the part of the deceased, or even as a result of the continued movement of his body and his attempts to find a grip, pressure was created once again that led to the emission of the second bullet.  Counsel for the defendant noted that watching the video does not provide an answer to the question of which of the two bullets fired from the defendant's pistol was the lethal bullet that led to the death of the deceased.
63. Counsel for the defendant referred to the immigrant from the defendant's interrogations with the police. According to him, the defendant's spontaneous and authentic reactions during his first interrogation, when he was exposed to the video for the first time, and especially to the fact that a shot was indeed heard during the fall of the two to the ground, and his answers to the questions that the interrogator addressed to him at critical points to the question in dispute, are of real importance.  This was precisely because at that stage both the investigation team and the defendant were not aware that the bullet that led to the death of the deceased was fired at this stage and not at the final stage of the incident.  Moreover, the spontaneous, verbal and non-verbal responses of the defendant in his third interrogation, in response to the findings of the current pathological opinion, show that until that moment, the defendant had never imagined that the deceased had been injured as he was.
64. According to the defendant's counsel, the defendant's confused version in his first interrogation and in the reenactment that was conducted with him, which does not match what was seen in the video, stems from the fact that immediately after the incident the defendant was upset and confused, and therefore he incorrectly described parts of the incident. However, according to him, this confusion does not relate at all to the core of the defendant's version and to the questions that need to be decided in our case, but rather to matters whose relevance to the questions in dispute is marginal.  With regard to the main questions, the defendant's version remained consistent and did not change at all.  Thus, the defendant's counsel emphasized that the defendant's initial version, which remained consistent throughout his police interrogations and later in his testimony in court, is that he fired at the deceased only at the last stage of the incident, when the deceased ran toward his car and not before.
65. According to the defendant's counsel, the accuser's claim that the defendant was aware that he had shot the deceased during the struggle on the floor, but concealed it from his interrogators, is illogical and unreasonable. This is a place where shooting the deceased during a struggle between them is much more consistent with a claim of self-defense, than shooting the deceased when he got away from his car just because the defendant thought he would take out some weapon from him.  Hence, it is illogical for the defendant to hide this from the interrogators, and even more so after he was confronted in his first interrogation with the fact that his version is inconsistent with the claim of self-defense.  Moreover.  Had the defendant been manipulative in his interrogations, as the accuser claims, he would have claimed that he fired during the struggle in self-defense.  However, the defendant did not claim this because he was not aware of the shooting.
66. Counsel for the defendant added that watching the video documenting the reconstruction carried out by the defendant shows that his return to the scene of the incident awakens the defendant's memory. However, even then, the defendant's version is still confused and lacking, and this is indicative of the great confusion in which the defendant was found after the traumatic event he underwent.  However, despite the confusion and turmoil in which the defendant was subjected, the most relevant and essential fact in our case remained consistent in his version throughout the entire process, namely, the fact that he did not fire at the deceased at any stage in the struggle between them, but only when the deceased moved away from him in the direction of his car.
67. According to the defendant's counsel, the main importance of the defendant's second interrogation is in the defendant's reactions, which are spontaneous and authentic, when he is shown the video, and especially those segments in which gunshots were heard during the struggle between him and the deceased on the floor. These reactions clearly show that up to that moment, the defendant was not at all aware of the fact that during this struggle his pistol had been shot.  Another important and essential point in this interrogation of the defendant, which is essential for understanding the picture, is that in this interrogation as well, not only does the defendant repeat his version that he did not shoot the deceased at the stage of the struggle between them, but he also explains, in Rachel, your little daughter, why he chose not to shoot at this stage – because he did not identify a weapon in the deceased's hands and therefore did not feel a threat that justified the use of a weapon against him.
68. Counsel for the defendant added that in this interrogation, the defendant's claim that when the deceased broke away from him, immediately before running to his car, the deceased called out to him, "Now you are dead." In this context, he sought to reject the accuser's arguments regarding the defendant's unreliability, which is inferred from the timing of raising this claim.  This, while arguing that this argument could actually have been relevant to the defendant's self-defense claim that he shot the deceased when he moved away from his car because he feared for his life, and therefore he would have raised it earlier if he had remembered it.  Moreover, he emphasized that taking into account the pathological opinion, this argument is no longer relevant in our case, since none of the bullets fired by the defendant at this stage hit the deceased.  Therefore, any discussion of the defendant's claim of self-defense has not yet been made available to his interrogators on the aforesaid facts is meaningless, where this shooting did not lead to the death of the deceased or even harm him.
69. With regard to the accuser's argument that it is inconceivable that the defendant did not notice the noise of the gunfire when the two bullets were fired from his pistol, counsel for the defendant argued that the circumstances of the incident explain this. Thus, he emphasized that at the time of the release of the bullets, the defendant was at the height of a violent struggle in which he felt that he was fighting for his life against an assailant who was trying to snatch his weapon.  In this state of affairs, and when the defendant's entire consciousness and all his senses are focused on survival, repelling his attack, and preventing him from reaching the weapon, it is quite possible that the defendant will not hear the sound of two bullets fired from his pistol a second apart.  At the very least, there remains a real doubt on this matter.
70. According to the defendant's counsel, the investigators changed their attitude toward the defendant after receiving the final pathological opinion, when they realized that the deceased had been shot at a short range from the front and not from behind, as they had thought until that time. The defendant's reactions to the words hurled at him in this context are authentic responses that testify that the defendant is telling the truth.  According to the defendant's counsel, the fact that the interrogators prevented the defendant during the interrogation from demonstrating how the bullets were discharged, beyond being puzzling and inexplicable, harms the defendant's defense and his ability to reach the truth.
71. Counsel for the defendant further argued that the very fact that the defendant fired at the deceased after the latter had detached from him and ran towards his car shows that the defendant had no awareness that the deceased had already been injured and that he was in fact retreating. Accepting the accuser's argument that the defendant shot the deceased voluntarily during the struggle on the ground is inconsistent not only with the character of the specific defendant and his conduct during the entire incident in which he refrained from shooting at the deceased, but also with logic and common sense.  On the other hand, the defendant's version is well consistent with the shooting at the deceased in the final stage.
72. Counsel for the defendant referred to the testimony of the defendant's sister, Christina, and her descendants. In this context, he claimed that Christina was the first person the defendant met immediately after the incident, and therefore the question of what exactly the defendant told her in those few minutes that they were together until they arrived at the scene together is of great importance.  According to the defendant's counsel, not only does Christina's testimony not help the accuser to substantiate her claim that the defendant knew that he had shot the deceased already at the stage of the struggle on the floor, but it also teaches even more about the reliability of the defendant's version.  Counsel for the defendant further argued that Christina's version in her first interrogation should be preferred to her version in her second interrogation, when she confirmed in her testimony in court that her words immediately after the incident were more accurate.  Moreover, this version was given before the video of the incident was exposed and is therefore not affected by it.  Moreover, this version is consistent with the defendant's version of the incident in his first interrogation, and from this it can be concluded that these are indeed the things that the defendant told her on the drive from home to the scene immediately after the incident.
73. Counsel for the defendant further argued that it is reasonable to assume that if the defendant had known at that stage that he had shot the deceased during the struggle on the ground and wanted for some reason to hide this detail from the police investigators, he would have asked Christina not to tell this detail. However, the defendant did not ask Christina to do so, and in fact, he does not ask her for anything regarding the circumstances of the shooting.  The obvious conclusion from this is that the defendant was not at all aware at the time that the deceased had been shot during the struggle, and that as far as he was concerned, the shooting that shot the deceased in the final stage was justified, and therefore he felt absolutely confident that he had acted correctly and that there was no need to disrupt the investigation in this matter.
74. Counsel for the defendant referred to the testimony of Chief of Security Yaniv Ben Shimol and what emerges from it, while seeking to reject the accuser's argument that, from his testimony, it appears that the defendant confessed to him that he shot the deceased while he was lying on him while they were both struggling on the floor. In this context, he argued that it is not possible to establish a finding that the defendant said this to Yaniv, certainly not at the level required in criminal cases.  He also argued that it is not possible to attribute to this, even if this is said, the far-reaching significance that the accuser seeks to attribute to them.  He also claimed that Yaniv's statement was taken only 12 days after the incident, and that in an interview he gave to the media the day after the incident, he did not mention at all that the defendant had told him these things.  Not only that.  The witness confirmed in his testimony that these were information given to him by the defendant and therefore he did not know how to point to the stage at which the defendant shot the deceased.
75. Counsel for the defendant also noted that Yaniv's car camera, which documents the entire vicinity of the vehicle on video and audio, was not seized by the police. According to him, in circumstances in which no satisfactory explanation is given for the police's refusal to seize the road camera, it can be assumed that if the camera had been seized, it would have turned out that the defendant did not say the things in dispute at all, based on the doctrine of evidentiary damage.  For each of these reasons, he claims, there is sufficient to lead to the rejection of any attempt to attribute any weight to Yaniv's statement and to base a finding on it for the defendant's obligation, all the more so in their accumulation.
76. Counsel for the defendant also referred to the footage from the body camera of Officer Ali Abd al-Hadi, which shows that the defendant told the police officers that he fired in the air many times until he had to give the deceased "some two." According to him, this statement does not indicate that the defendant intended to shoot the deceased two bullets during their struggle on the ground.  Thus, the defendant's words do not refer to the stage of the incident in which he fired at the deceased, or to the stage in which he fired in the air, but rather to a general statement regarding the number of bullets he fired in the incident, two of which he fired at the deceased.  According to the defendant's counsel, any late attempt to impose on this statement a meaning and interpretation that deviates from the limited context in which it was said is artificial and forced.  Moreover, the defendant explained in his interrogation that he was afraid to tell the police that he had fired three bullets at the deceased when he moved away from his car, and therefore said that it was two bullets.  He also told the investigators, both in his interrogation and in the reconstruction, that he did not know how many bullets hit the deceased and that after firing the third bullet at him, he saw him fall.  Hence, it is clear at what stage in the incident the defendant was referring to.
77. In light of the above, the defendant's counsel petitioned to determine that the two bullets fired from the defendant's pistol during the struggle on the floor were fired as a result of involuntary movement. In other words, these bullets were ejected from the defendant's gun, who not only did not fire them voluntarily, but was also unaware of the fact that they were discharged.  Counsel for the defendant mentioned that it is sufficient for the defendant to establish a reasonable doubt that the bullets were discharged from his pistol.  Moreover, according to him, the defendant proved far beyond a reasonable doubt and closer to the level of proof required by the balance of probabilities in civil law, that this did indeed happen.
78. According to the defendant's counsel, since it has been proven that the two bullets fired from the defendant's pistol during the stage of the struggle on the floor were fired when the defendant has no ability to control the movements of his hand, and especially the pressure exerted by his finger on the trigger of the gun, the permanent lack of control qualifier should be applied in his case In section 34g to the Penal Law and to his acquittal of the crime of murder attributed to him. Counsel for the defendant also petitioned to determine that the defendant did not enter this situation with improper conduct, in a manner that negates the defense of the qualification, and that he did not foresee or could have foreseen the possibility that he would commit the prohibited act in this situation.
79. With regard to the defendant's disqualified and drunk driving, his counsel argued that the defendant did not anticipate and could not have expected, when he decided to drive to Migdal HaEmek when he was disqualified from driving and after drinking several bottles of beer throughout the day, that he would encounter the deceased and that a confrontation would develop between them. As to the defendant's emotional state, he argued that the accuser's claims that the defendant was nervous or angry or even under the real influence of intoxicating substances on his mental abilities are not supported by any evidence and therefore should be rejected.  With regard to the encounter with the deceased and the defendant's manner of driving, his counsel argued that it cannot be said that stopping his car parallel to the deceased's car, on the access road leading to the settlement and is used only by the residents of the community, at a stage when he does not even know who is driving the vehicle and in his opinion it is a resident of the community, constitutes improper conduct.  The accuser's argument that the deceased's manner of driving upset the defendant remains vague and is not supported by any evidence, and in any event, the very fact of stopping the vehicle in order to clarify the suspicious manner of driving another vehicle does not constitute improper conduct in this sense.
80. Counsel for the defendant further argued that throughout his interrogations, as well as in his testimony in court, the defendant consistently claimed that the deceased got out of his car first, with his body language conveying violence and danger. An examination of the evidence shows that the accused's claim that the defendant and the deceased got out of their vehicles simultaneously has nothing to rely on, and that, in practice, the accuser has nothing to contradict the defendant's claim that he got out of his car only when he noticed the deceased getting out of his car and felt threatened as a result.  In this context, counsel for the defendant argued that the testimony of the witness Asa Gyari could not be relied upon, as it was incoherent and had internal contradictions.
81. Counsel for the defendant further argued that the defendant's exit from his vehicle while pulling out his pistol and firing warning shots in the air did not come in a vacuum, but against the background of the period in which the incident took place, the geographical area in which it took place, and in light of the defendant's suspicion that he was facing a terror incident and not an incident of a fight on the road. He also emphasized that according to him, even if the defendant had not acted as he had done out of concern that the deceased was a hazard, the defendant's conduct still does not deprive him of the applicability of the lack of control qualification.  Thus, he argued that the defendant's instinctive response to a situation of danger in the form of standing in front of the danger in order to neutralize the threat in a non-injurious manner, in the form of firing in the air, cannot be such that it deprives him of the applicability of the reservation.  Beyond the fact that this conduct, in the circumstances of the case, cannot be regarded as an improper act in itself, at no stage did the defendant imagine, nor could he have imagined, that his actions, the sole purpose of which are to keep the danger away from him and to prevent a physical confrontation with the deceased, would lead to the opposite result.
82. Counsel for the defendant added that from the first moment the defendant consistently claimed that the deceased's conduct, combined with the security situation at the time and the geographical area in which he lived and where the incident took place, led him to think that this was a terror incident, a mindset from which his behavior and reactions were derived. Not only was this version of the defendant not contradicted, but it also finds support in the testimonies of prosecution witnesses, such as Chief of Security Ben Shimol and police officer and resident of the community, Assaf Cohen.  Thus, he argued that the defendant's state of mind, according to which as soon as the deceased opened the door of his car, the defendant's suspicion arose that this was a terror incident, negating any possibility of classifying the defendant's actions later in the incident, i.e., his exit from the vehicle, the first warning shot, and later the second warning shot, as an improper act.  Such a determination is not only legally unjustified, but also morally and normatively incorrect.
83. According to the defendant's counsel, a determination that a reservist in an elite unit, who carries a weapon lawfully and finds himself in a situation in which he believes, even if mistakenly, that it is a terror incident and confronts that assailant in his opinion, while being careful not to harm him as long as he does not identify a weapon in his hands and despite countless opportunities to do so, is inconsistent with the norms of behavior expected of an Israeli citizen, Certainly in the security situation that prevailed in Israel at the time.  Therefore, the fact that the defendant honestly believed and on the basis of objective data that supported his subjective fear that the incident occurred is a terrorist incident, is capable of leading, in itself, to a determination that his conduct should not be regarded as improper conduct.
84. Counsel for the defendant added that even after the warning shots were fired, the deceased did indeed return to his car, but did not leave the scene and continued to curse the defendant and stare at him threateningly. This fact increased the defendant's suspicion that this was not an incident of a fight on the road, but rather an incident of terror.  At this point, and out of a desire to end the incident without harming the deceased, the defendant approached the deceased and shouted at him to leave the scene.  When this did not help, the defendant fired another warning shot in the air.  Counsel for the defendant emphasized that if the defendant wanted to harm the deceased at this stage, he would not have been prevented from doing so, where the deceased was sitting in his car and was a stationary target.  According to the defendant's counsel, even if the defendant was able at this stage to cut off contact, get into his car and leave the place, this does not make his behavior impermissible.
85. Not only that. After the second warning shot, the deceased acted unexpectedly and contrary to all logic, jumping on the defendant and attacking him, while trying to snatch his weapon.  This decision of the deceased and his assault on the defendant was what led to the struggle between the two, during which the deceased knocked the defendant to the ground and during which two bullets were fired from the defendant's pistol.  According to counsel for the defendant, this unusual and unexpected course of action taken by the deceased, which the defendant did not anticipate and could not have foreseen, is in the form of an "intervening foreign factor" that severs the causal connection between the defendant's actions and the event that led to the fatal result.
86. According to the defendant's counsel, the accuser was unable to prove what was alleged in the facts of the indictment, according to which the deceased tried to close the door of his car even before the defendant fired the second warning shot. Thus, according to him, even watching the video of the incident does not lead to this conclusion.  An unequivocal determination, as mentioned, depends on an examination of many data and factors related to the weight of the door, the force required to close it, the angle of incline at which the vehicle was standing, and more.  However, the police refrained from conducting any examination that could provide answers to these questions, or even some of them, despite the fact that the deceased's car was in its possession throughout the investigation and the legal process, and despite the fact that some of these questions had already arisen during the defendant's interrogations.
87. According to the defendant's counsel, the failure of the investigating unit to examine additional possibilities that could explain the movement of the door is intensified by the fact that these possibilities were raised by the defendant in his interrogations. Refraining from carrying out any investigative action in this matter, in the absence of any reasonable explanation for this, should lead to two conclusions.  The first is that the accuser did not meet the burden of proving what she claimed in the indictment in this context.  The second is that if the investigative unit had carried out simple investigative actions, their outcome would have been convenient for the defendant.  The deceased's conduct immediately afterwards also supports the aforesaid and indicates the opposite conclusion, according to which not only did the deceased not try to close the car door, but he did not want to leave the place at all and wanted to confront the defendant.  According to counsel for the defendant, watching the video shows that if he had wished to do so, the deceased would not have had any impediment to leaving the place, while he was sitting in his motorized vehicle, the road in front of him is clear, and the defendant standing outside his vehicle does not prevent him from driving from there.
88. In summary, counsel for the defendant argued that an examination of the defendant's actions, behavior, and actions at all stages of the incident prior to the discharge of the bullets from his gun shows that they cannot be viewed as improper behavior in the sense In section 341 to the Penal Law. This is because his actions are not invalid in themselves, and mainly because the defendant could not have expected that the deceased would be caused to act as he did.  Therefore, the defendant cannot be deprived of the defense of lack of control by virtue of the prescribed rule In section 341 to the Penal Law.
89. Therefore, the defendant's counsel petitioned to order the acquittal of the defendant of the murder attributed to him, at least out of doubt.
90. In completing his oral summaries at the hearing on October 22, 2025, counsel for the defendant reiterated his main arguments according to his written summaries. He also argued that after receiving Dr. Kotik's final opinion, according to which the deceased's death was caused by gunfire from the front and not from behind, the indictment against the defendant should not have been filed.  In this context, he stressed that watching the video of the incident unequivocally shows that it was a bullet ejection and not a deliberate shooting.

In connection with the accuser's summaries, counsel for the defendant clarified that he did not raise a claim of self-defense and therefore the accuser's arguments in this context are irrelevant.  However, it is important to understand the defendant's state of mind in the incident, in light of his claim in his interrogations that he shot the deceased in self-defense.  In these circumstances, in which the defendant claims self-defense, it is clear that if he had known that he had shot the defendant during their struggle on the floor, he would have told the interrogators, since this would have substantiated his claim of self-defense.