The second-degree murder charge against David Appleton, a Scottsdale defense attorney who fatally shot a motorist during an apparent road-rage incident earlier this month, has been dropped, the County Attorney's Office confirms to New Times. However, that doesn't mean he won't eventually be charged with a crime.
"We've asked the Scottsdale Police Department for some additional investigation before making a final charging decision," Jerry Cobb, spokesman for the Maricopa County Attorney's Office, says.
If you're unfamiliar with Appleton's repeated road-rage incidents -- and his fatally shooting 50-year-old Paul Pearson, a father of three -- click here.
Appleton's attorney, Richard Gierloff, tells New Times he doesn't expect the MCAO to file other charges against his client. According to Gierloff, Appleton -- who once served as the president of the Phoenix Trial Lawyer's Association -- has the law on his side.
"It was clearly a justifiable use of force," Gierloff says. "You have the right to use deadly physical force if someone's trying to kill you."
Whether Pearson was trying kill Appleton is debatable -- according to Appleton, Pearson tried to choke him before he pulled the trigger. However, police found no evidence supporting his claim that Pearson even touched him.
Regardless, Girloff says there's a new statute in Arizona that states a person can "use deadly physical force to prevent somebody from entering your car, or drag you out of your car, and there's no duty to retreat in either of those situations."
He goes on to explain -- in defense attorney-speak -- that even briefly choking someone could be considered a murder attempt.
"With a carotid choke hold, you can lose consciousness in as little as 10 seconds," Gierloff says.
Appleton, according to court records, fatally shot Pearson after the two got into an argument in the parking lot of a CVS pharmacy in Scottsdale earlier this month. .
Appleton told police after he was arrested that he left a Phoenix restaurant where he'd had dinner with friends. As he was driving to his North Phoenix home, he sped up to catch a green light at the intersection of Pima Road and Thompson Peak Parkway, but he was unable to make it because Pearson's car was in the way.
While stopped at the intersection, Pearson and Appleton each rolled down their windows and exchanged profanities.
Appleton claims Pearson followed him for about a mile before he pulled into the CVS parking lot. He claims Pearson followed him into the parking lot -- and that's when he removed his loaded .38 Special from his glove box and placed it on the passenger seat.
Pearson got out of his car and approached Appleton's window as the two men continued to argue. Pearson, Appleton claims, reached in the window and grabbed the attorney's wrist. Appleton was able to break free from Pearson's grip, he says, but Pearson then grabbed him by the throat.
Appleton claims he was unable to breathe and feared he might pass out as Pearson choked him. He says he then grabbed his gun and pointed it at Pearson.
"Don't shoot me with that gun," Pearson then warned.
Appleton fired anyway, hitting Pearson in the chest.
Pearson died on the way to the hospital after Appleton called police to tell them he'd just shot a motorist.
The entire time Pearson and Appleton argued, Pearson was on his cell phone talking with his cousin. He told her he'd seen a man try to run a red light and that he was apparently upset with him. The cousin later told police she heard the two men argue before a brief scuffle. The phone then went dead.
Police interviewed Appleton following the shooting. They determined there was no evidence to suggest he had been choked or that Pearson even grabbed his wrist -- the only evidence of any injury was a broken fingernail on Appleton's pinky.
Gierloff claims, however, that the officers who arrested Appleton commented on the redness on his neck, and the shirt he was wearing at the time had buttons ripped off of it.
Neither of those claims are supported by the arrest report, and Gierloff admits he hasn't seen the report he claims provides evidence that Appleton was choked.
Appleton, as it turns out, is no stranger to road rage.
In the past year, Appleton's called Scottsdale police twice to report road-rage incidents. In both cases, police determined Appleton was the aggressor.
In March, Appleton -- who always travels with a gun in his vehicle "for protection" -- called 9-1-1 to report that he'd been cut off by another motorist and that he planned on pulling out his gun, presumably to scare or injure the other driver. The 9-1-1 operator advised him not to do it, but Appleton said he planned to anyway. In that case, Appleton didn't shoot anyone, and no charges were filed against him or the other motorist.
In another incident this year, Appleton called police to report that he spotted a woman driving 100 miles per hour. He followed her to her gated community where his pursuit of the woman ended without violence.
Neither Appleton or the other driver was cited, but police determined that based on the 9-1-1 call, Appleton was the aggressor.
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After his arrest, detectives asked Appleton why he didn't call police when he saw Pearson following him -- as he'd done during the prior road-rage incidents. He had no answer, other than to say it was "stupid" to not call authorities.
Gierloff maintains the shooting "was clearly a justifiable use of force."
He went on to ask "were you there to contradict his version of events?"
Obviously, we weren't -- and unless the county attorney files new charges against Appleton, the defense attorney is off the hook for the death of Pearson.