When the shooter may not be the killer

There’s no dispute over who fired the shots that instantly killed 19-year-old Michael Byoune.

The question is, who is to blame.

It was 1:30 a.m. on a Sunday in May 2008. Byoune and a few friends were at a Rally’s hamburger stand, talking to some girls, when gunshots rang out nearby. Terrified, the teenagers jumped into their dark gray Honda and tried to flee.

In the frantic few minutes that followed, two Inglewood police officers, believing the teens were shooting at them, fired 29 rounds into the Honda. Byoune, shot five times, died at the scene. A second 19-year-old suffered a gunshot wound to his leg.

Authorities now say that Byoune and his friends were innocent, unarmed victims and that police should not have shot at them. The real culprit, authorities say, was Tramond Winzer, an alleged Crip gang member who fired off a series of shots with a handgun, seeking to hit rival gang members at Rally’s.

Even though police bullets killed Byoune, Winzer is the one authorities want to hold legally responsible for his death.

Prosecutors earlier this year determined that the two officers who shot Byoune reasonably acted in self-defense even though they were mistaken about who posed the threat.

Next month, Winzer, who was 19 at the time of the shooting, is expected to stand trial for Byoune’s murder under a legal theory known as the “provocative act murder” doctrine. Under that theory, Winzer would be responsible if he fired the initial shots that led to Byoune’s slaying by police.

One legal expert predicted that the application of the provocative act doctrine would be heatedly contested in court, and a civil attorney for Byoune’s family called Winzer’s prosecution scapegoating.

If it hadn’t been for a botched food order, Byoune and his friends would not have been at the hamburger stand at the time of the shooting, according to law enforcement records.

Christopher Larkins, one of Byoune’s friends, ordered a hamburger but realized there were condiments on it he hadn’t asked for. He went back to the window and was waiting for a new burger when he heard the gunshots.

Prosecutors allege the shots were fired by Winzer at people at the Rally’s because it was a known hangout for a rival Bloods gang.

"[I]t sounded so close, like they were shooting at us.... I just ran because I don’t want to die,” Larkins later told investigators.

The others had already gotten into the car and started to drive off. Byoune opened a back door so his friend could get in, just as officers Brian Ragan and Roman Fernandez arrived on scene.

The murder case against Winzer could hinge on what happened in the ensuing seconds.

Prosecutors contend Winzer fired a second set of shots in the direction of the officers. Ragan and Fernandez believed the shots were coming from the Honda because the car was between Winzer and the police car, said Deputy Dist. Atty. Robert Villa, the prosecutor on Winzer’s case.

Shooting back when fired on was a “reasonable response” by the police and a foreseeable consequence of Winzer’s actions, he said.

“How did this happen and why did it start? If one of those causes is Mr. Winzer, then the jury can find him guilty of second-degree murder, even though the bullet wasn’t from his gun,” Villa said.

In addition to the charge in Byoune’s death, Winzer also faces attempted murder charges related to the shots fired at Byoune’s friends and the officers. He is also accused of firing at an occupied motor vehicle and assault with a firearm upon a peace officer.

Carl Douglas, who represented Byoune’s family and the surviving victims, contended that there was no evidence of a second set of shots fired at police. He said the officers fired unprovoked after a couple of minutes had passed with no gunfire.

According to a district attorney’s office memo on the shooting, Ragan told investigators that he heard more gunshots being fired just as he saw Larkins getting into the car. At the same time, he felt a “loud impact” on the police car.

That impact, the memo concluded, was probably his partner accidently firing into the vent from inside the patrol car.

“Ragan misinterpreted the impact to the patrol car as shots fired from the Honda when in fact the impact sensed by Ragan was likely caused by Fernandez discharging his gun into the vent of the left dashboard,” according to the memo.

Stanley Goldman, a law professor who teaches criminal law and procedure at Loyola, said Winzer’s defense could contend that the police officers were reckless enough that whoever fired the first shots couldn’t be held responsible for Byoune’s death.

“Was the police behavior just a simple, ordinary kind of misunderstanding or mistake, or was their behavior so outlandish that they are shooting when they shouldn’t be shooting?” he asked.

Douglas, the civil attorney, criticized Winzer’s prosecution as an attempt to “make the officers look better.”

“I don’t think the D.A. wants [the shooting] to sit on the shoulders of Brian Ragan and Roman Fernandez. Bringing Mr. Winzer into the mix provides a scapegoat,” he said.

Winzer’s defense attorney, Elon Berk, did not respond to requests for comment. But Tracy Winzer, his sister, said her family believed Winzer was home asleep at the time of the shooting. He was an honor student on a football scholarship who was the first in her family to go to college, she said.

Ragan was involved in a fatal shooting two months after Byoune’s death. Byoune’s was the first in a series of four officer-involved shootings by the Inglewood police in a span of four months in 2008. Three of the shootings involved unarmed suspects and sparked local and federal investigations into the city’s police force.

Inglewood police spokesman Lt. Oscar Serrano said Ragan and Fernandez were both still employed with the department. He said Ragan has been on “administrative assignment” since the shootings, but he declined to elaborate.

In Byoune’s shooting, the city of Inglewood earlier this year agreed to pay $2.45 million to settle a lawsuit brought by the victims’ families.