The Akron Legal News

Man who shot and killed 'close friend' loses appeal

ANNIE YAMSON
Special to the Legal News
Published: September 12, 2014

A panel of three judges in the 6th U.S. Circuit Court of Appeals recently dismissed a petition for habeas corpus from Robert Comer, who says he shot and killed a a man in self-defense.

Comer, appealing the judgment of the U.S. District Court for the Southern District of Ohio, argued that he had no duty to retreat inside his own home when he shot and killed his alleged best friend, Dustin Lennex, who was unarmed.

According to case summary, the murder took place on the evening of Dec. 1, 2009, when several people came together at the home of Edith Lennex in Gallia County with plans to go deer hunting the next day.

Edith’s sons, Dustin and Cody Lennex were present as was Comer, who lived next door.

Trial testimony often described Comer and the Lennex brothers as best friends.

Kristen Gandee, another guest at the Lennex house that evening, testified that Dustin Lennex and Comer were “like brothers.”

As the evening progressed, members of the crowd began taking part in karaoke.

Comer supposedly rapped something offensive about Cody’s girlfriend and a fight promptly broke out.

Edith and Dustin intervened to stop the fight and case summary states that Comer stormed out of the house with an angry Dustin in pursuit.

Comer went into his home, though Dustin did not follow.

Todd Dixon, Comer’s cousin, was in Comer’s house at that time.

Dixon testified at trial that Comer entered his home in a rage, “put his fist in the wall,” and overturned a coffee table while screaming that he was “going to shoot them motherf-----s.”

Comer proceeded to grab a gun and go outside, firing a warning shot into the air.

At this point, Cody appeared with his rifle and positioned himself so that he could see the front door of Comer’s residence.

Several witnesses testified that Cody warned Comer that if he fired another shot, Cody would shoot.

Comer ignored the warning and fired in Cody’s direction. When Cody returned fire, he grazed Comer and wounded Dixon.

At this point, Dustin “reinserted himself into the fracas,” case summary states.

He walked, unarmed, to Comer’s house with his arms extended out on each side, asking Comer if he was going to shoot.

Comer went into his home and shut the door as Dustin walked onto the front porch. Comer fired a shot from inside, hitting Dustin.

Shrapnel from the shot pierced Dustin’s aorta and, according to the county coroner, he died almost instantly.

Comer was charged and convicted of murder with a firearm specification and the trial court imposed an indefinite prison term of 15 years to life.

Throughout his trial, Comer maintained that he and Dustin were friends and he never intended for Dustin to die.

During his time on the stand, he maintained that he fired the fatal shot because he and Dixon had already been wounded and he feared for his life.

Upon his delayed appeal to the 6th Circuit, Comer made the same claims.

Though he presented several assignments of error, they were all based on his contention that he shot the victim in self-defense.

“Self-defense is an affirmative defense that must be proven by a preponderance of the evidence,” wrote Judge Richard Suhrheinrich on behalf of the 6th Circuit’s appellate panel. “(Comer) does not dispute the state court’s findings of fact, but cites additional facts he asserts established that he acted in self-defense and was therefore entitled to an acquittal on that basis.”

Specifically, Comer noted that all of the witnesses at trial testified that he retreated into his home after the initial fight broke out, that Dustin ran up onto his porch and that he shot Dustin from inside his home.

Additionally, Comer pointed to Cody’s testimony that Dustin was angry when he ran onto the porch and that he thought Dustin was going to “beat up” Comer.

“However, other undisputed facts support the conclusion that (Comer) was at fault in creating the deadly situation and therefore, not entitled to the rebuttable presumption of self-defense,” wrote Judge Suhrheinrich.

Despite Comer’s claims to the contrary, the appellate panel ruled that the district court was correct in finding that Comer’s counsel was not ineffective for failing to move for acquittal and that he was not entitled to a jury instruction on self-defense.

The district court held that it was Comer himself who testified that the initial confrontation was over when he left the Lennex home and returned to his own residence.

The appellate panel consulted the trial court’s ruling, which stated that Comer “returned to his home, loaded his gun, went outside and fired into the air.”

“Dustin had his arms out, palms upward when Comer shot and killed him ... There was uncontroverted evidence that Dustin Lennex was unarmed,” the trial court wrote.

“Based on these undisputed facts, we cannot say that the Ohio Court of Appeals’ finding that ‘the evidence adduced at trial was uncontroverted that (Comer) fired the first shot in this fracas,’” wrote Judge Suhrheinrich, “And that he created the deadly situation and thus did not act in self-defense, was unreasonable.”

Comer went on to argue that, under Ohio’s Castle Doctrine, he had no duty to retreat inside his own home.

But the appellate panel’s review of the trial testimony led to its determination that there was no evidence to support any claims that Dustin was trying to get in the home or that he was armed.

In any case, it concluded that there was little difference between Comer’s duty-to-retreat claims and his self-defense argument and it overruled both, finding that Comer was at fault in creating the affray.

The judgment of the district court dismissing Comer’s habeas petition was affirmed with judges Helene White and Karen Moore joining Judge Suhrheinrich to form the majority.

The case is cited Robert Comer v. Warden Ohio State Penitentiary, Case No. 13-3708.

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