Wrong-way driver not guilty of attempted capital murder

news-michaelhogbergMichael Hogberg had been celebrating his 26th birthday.
MUGSHOT ALBEMARLE POLICE

The Crozet man who first gained notoriety for being Tased while handcuffed and fleeing police custody at a UVA-Virginia Tech game last year and then for driving the wrong way down Interstate 64 this summer has been found not guilty of attempted capital murder.

Michael Hogberg, 26, pleaded guilty November 30 to three felonies related to driving under the influence for the third time and eluding police, but pleaded not guilty to attempted capital murder when he drove toward Virginia State Trooper Kevin Frazier at about 75mph on June 20 and didn't swerve.

His attorney, David Heilberg, made a motion to strike the attempted capital murder charge, arguing that Hogberg was too drunk to have the intent to kill the trooper coming toward him.

Albemarle Circuit Court Judge Cheryl Higgins continued the case, and found Hogberg not guilty of the capital charge December 7, reasoning that Hogberg maintaining the same speed was not enough to constitute intent. He faces sentencing on the three other felonies, which carry penalties of up to 15 years.

51 comments

Gasbag Self Ordained Expert Free clue to you .Do read any other news papers or watch tv. Cops shoot people dead all the time . Oh the candy bar thought it was a gun . That cell phone I thought it was a gun that finger in his pocket Now that was a gun. If your dead you cant defend yourself. There was a case in buffalo ny in the 70s . Look it up the guy name was Richard Long five guys (3 of them cops) beat him with their shoe(clogs to be exact) They got charged with attemped murder then when he died "murder"

Thank God he wasn't convicted. He's clearly having a hard enough time dealing with an addiction to alcohol that has wreaked havoc on his life in enough ways. Though drunk driving illustrates very poor judgment, there is no way he had any intent to harm the police officer, or anybody for that matter. I was acquainted with Hogberg years ago and he always seemed like a nice guy to me. Clearly he accepts the consequences of his bad decisions based on the guilty pleas, and I hope he can move forward and find the help that he needs.

VA Teacher Man Im glad your not my kids teacher . Your a real role model for the kids you teach . If you cant beaten "Shoot Em"

guu = guy

Sorry, folks! This was a bullsheet charge from minute 1.

Judge Higgins did her job, and she did it well.

I don't like this guu, but Hogberg is in enough trouble without having false charges fabricated and filed against him.

Unbelievable! So....the only time when anything will be done about punks like this is that the judge needs to see an increase of speed to clarify the "intent" to harm? Will it cost a law enforcement officer's life or that of an innocent party? I say bring Judge Judy in as I think she is the only judge sitting that has any common sense and can see through rediculous defense attorney's arguements!

Crozets best!

It's not like he said, "Sorry I tried to kill you." or anything else that would warrant a charge based on intent.

...

Properly charged, and furthermore a proper result from the judge. That's sometimes called the justice system working the way it's supposed to work.

VA Teacher, didn't the State Trooper put himself in harms way when he "played chicken" with the perp??? I certainly wouldn't stand in front of you and your 45 just to see if you'd back down even if I was holding my own 45.

It was the "marine" coming out in the trooper. :)

@Rigby
No intent to harm? I guess when I load up my .45 with hollow points, I don't think I would claim the same thing. This guy knowingly loaded himself up with alcohol, got into a machine with much more killing power than my pistol, and set off with no regard to whoever gets in his way. Maybe it was stretching to try to interpret his actions as meeting the statute, as it is written, for attempted murder. In my mind, and in many others, it certainly falls into the intent of the law for attempted homocide when an individual habitually drinks and drives.

It's common practice for police to run up every charge they can think of in an arrest,but that doesn't mean they're legitimate.I think the judge recognized this.Proving intent isn't as easy as you would think.
This guy is a first class,out of control menace.He deserves to go to jail for a LONG time,but I have to agree with the judge on this one.

VA Teacher, with logical skills like your it's no wonder our schools are so bad.

- yours -

OK, depending on the force used, the city or county does not have to pay any of the punitive damages because actions amount to gross negligence and immunity extends only to simple negligence. I agree.

The point I made above was what would have happened if the jury had awarded punitive damages against the cop(s) that shot and killed Mr. Gray. I don't think Albemarle County would have picked up the tab. The cop(s) would have been working for a very long time just to pay the punitive damages (and interest) if they had been awarded by the jury.

You've cited Pennsylvania law. You live in Virginia.

Next question, please.

Why would anyone "trust you on this", Gasbag? You have absolutely no idea what the law is and you consistently demonstrate that. Counties and cities don't "elect" not to pay punitive damages. It's that qualified immunity only applies to simple negligence, not gross. Nothing in the facts you suggested above would EVER come even close to the required burden for gross negligence.

Just stop.

OK. I am a cop on duty. I go out here and smack a guy in the head with my baton for littering after he refuses to pick up his litter. He suffers from back and neck pain, constant headaches. He alleges police brutality and sues me for two million dollars. The jury returns a verdict of $750,000 in compensatory damages, and $450,000 in punitive damages.

Considering the fact I did indeed use unnecessary and willful/unlawful force, the city/county I am working for does not have to pay the punitive damages, right? The cap on punitive damages in Virginia is $350,000, right? So I assume the judge would reduce the punitive damages award to said $350,000.

Now we have taken a step backwards. We're back up to attempted murder again now! :)

A free clue folks, hitting somebody with a baseball bat is not automatically attempted murder or malicious wounding. The amount of damage one does with the baseball bat dictates the severity of the charge.

Furthermore, I would hate to be in the shoes of a cop who shoots and kills somebody for attacking them with a baseball bat. He/she better be able to show they used DEADLY force only as a last result after they were losing the battle.

No, he shouldn't have. :)

"A free clue folks, hitting somebody with a baseball bat is not automatically attempted murder or malicious wounding. The amount of damage one does with the baseball bat dictates the severity of the charge."

False. Damage is completely irrelevant for ATTEMPT. All that is required is intent. The law presumes intent to be the probable consequences of ones actions. The probable consequences of swinging a baseball bat at someone is serious injury or death. http://www.myfoxchicago.com/dpp/news/metro/20100426-baseball-bat-beating...

"Furthermore, I would hate to be in the shoes of a cop who shoots and kills somebody for attacking them with a baseball bat. He/she better be able to show they used DEADLY force only as a last result after they were losing the battle."

Also, false. There is no ââ?¬Å?last result” or duty to retreat requirement to use deadly force in Virginia. You should know this. All that is required is a reasonable fear of death or serious injury. That’s what swinging a baseball bat at someone will cause.

Esquire, here's another case where I suspect punitive damages WILL be handed down when the civil lawsuits are filed. The jury will want to send the message that cops should know better.

-------------------------

Christine L. Miller, a Sunset Hills, MO police officer charged with manslaughter in an off-duty car crash that killed four people last year, pleaded guilty in court today.

Authorities say Miller, 42, had nearly three times the legal limit of alcohol in her blood when she caused the collision March 21, 2009, at Dougherty Ferry Road at Des Peres Road in Des Peres.

Prosecutor Alan Key said Miller had a receipt for five cosmopolitans in her purse, which would have had 2 1/2 shots of alcohol each. A blood sample taken 45 minutes after the crash showed her blood alcohol content at .229. Three hours later, she tested at 0.169, still more than twice the legal limit of 0.08.

She was charged with four counts of first-degree involuntary manslaughter and one count of second-degree assault. Anusha Anumolu, 23, Anita Lakshmi Veerapaneni, 23, and Priya Muppavarapu, 22, all of Charleston, Ill., and Satya Subhakar Chinta, 25, of Aurora, Ill., were killed. The driver of their car, Nitesh Adusumilli, 27, of Ballwin, was severely injured.

Miller's attorney, Scott Rosenblum, said his client was herself near death after the crash. She still has "significant neurological issues" and no memory of the crash, he said.

Miller's "blind plea" means no deal was made with prosecutors. Miller is essentially throwing herself on the mercy of the court, taking whatever sentence is handed down. Her lawyer called it the "best route to go" in the case.

Sentencing was set for March 10. She could see no jail time at all or up to 67 years in prison.

"I want prison time, obviously," Key told reporters after the hearing. "I'd like to see double digits."

I agree 100% with G.S.O.E, .. The charge filed against him by "Chipmunk" were bogus! I salute Judge Higgins for doing the right thing.

I know a male school teacher in Kentucky who is totally consumed with pornography and weapons. The school system would probably terminate him if they were to see the things I watch him post on the Internet on a daily basis. (Would not surprise me to see him arrested some day for wild adventures involving undergae female students). Now we have a VaTeacher who seems to be a gun nut too, talking about his/her .45 with hollow points? And we have all these female teachers seducing 13 to 17 year old kids in our school systems every day.

And yet these are the same teachers who object to "drunk driving" and an overcharge being tossed out of court by a competent judge?

Wow! What's this world coming to?

Gasbag Self Ordained Expert Why are you on those sites ? Research for an upcoming book?

Whoa! Wait a minute! What sites? The teacher I am speaking of in Kentucky posts all his foolishness on a car forum I read occasionally. His fascination with weapons, scantily clad females (and worse), etc...

I don't do porn sites. :)

yes glad to here that charge was droped

I think Ottawa Hills, Ohio police officer Thomas White would disagree with you. He just received 10 years in jail for shooting a man in the back during a traffic stop. He testified that he thought the man was pulling a gun and he was in fear for his life. It seems like the jury mush have seen some gross negligence even though the cop testified he feared for his life?

We'll see what type of damages are awarded when the lawsuit is filed and heard. I suspect punitive damages will be handed down even though the cop claims he was in fear for his life.

In the meantime, never underestimate what a jury in Charlottesville or Albemarle County will do. Hardly anybody saw the $4 million wrongful death award coming down the pike not long ago. People were also surprised when a jury handed down a 2 year sentence for murder.

It wasn't "tossed out of court", Gasbag. It was sustained as a motion to strike. A prosecutor's responsibility and a judge's responsibility are two very different roles. There was probable cause for the charge. That's all that makes a charge proper. There was also a reason to strike the evidence.

This is why they don't let TSA agents comment on 9/11 trials.

If a cop can file bankruptcy after having a large punitive damage award (and interest until paid) handed down against him/her, isn't their life (and family) still pretty much derailed for a very long time because of it?

It's not something I would want to risk just because I simply shot and killed somebody coming at me with a baseball bat. I would want to be able to argue that I shot and killed the person as a last resort only. I'm old school when it comes to killing somebody. It was the last thing I ever wanted to do unless I absolutely had to. I'll let Jake (above) kill 'em all and the Commonwealth Attorney clean up his mess.

Seven years for a bankruptcy to expire, and there's absolute no way a jury is ever going to award punitive damages or find gross negligence against a police officer who testifies that he's defending his own life unless it's completely illegitimate and unreasonable. It's just not going to happen.

Esquire, I don't know if anyone has tried silver bullets or holy water against GSOE, but logic and knowledge have been proven to be ineffective so far....

idontknowanythingjustaskmywife, I watch very little TV. Ice Road Truckers, Operation Repo, Full Throttle Saloon, Pimp My Truck, Pimp My Car, Deadliest Catch, and a lot of Premium Channel movies on satellite. The only local or national news I see or read is basically on the Internet.

All of these cop shows are just about as interesting as Barney & Friends. I owed it to the city & county I worked for to never pick up all the bad habits they showed on COPS TV week after week. This is one of the problems I see in today's law enforcement community, these rookies out here grew up glued to the TV watching all these cop shows. It certainly has not by any stretch of the imagination made them better cops. The opposite is quite true.

Agreed. Hitting somebody with a baseball bat is a far cry from attempted murder, and should be reduced to a lesser charge at least.

If I walk up and hit two people (a civilian and a cop) with a baseball bat, it's a misdemeanor for hitting the civilian and a felony for hitting the cop. Cute, huh? Civilians are obviously a lower life form in the eyes of the law. :)

Would the magistrate write an attempted murder warrant for hitting a cop with a baseball bat? Some of these "get tough on crime" magistrates might. They're getting worse than the rookies sitting around dreaming up 45 charges they can place arising from one incident.

No, the city or county wouldn't have to pay ANY of the compensatory or punitive damages if it was all part of a single gross negligence claim. ... The cop would have declared bankruptcy and been done with it, that's why you don't see people trying to suit individual police officers, they try to sue the city or county. Coincidentally, that's why you haven't seen successful qualified immunity bars, because very few people sue individual police officers. In that arena, immunity is often used and often successful: e.g. Niese v. City of Alexandria (City was immune from liability, under doctrine of sovereign immunity, for alleged rapes committed by police officer, during investigation regarding victim's son, as investigating officer was part of the city's function of providing a police force.)

Man gets drunk. Man charges at police officer with baseball bat. Later says, "Sorry I tried to kill you." Charged with attempted capital murder.

That should be "tossed out of court," too.

This is a problem in our country. People don't want to equate vehicles to what they really are: potential weapons.

It's official now.... I have heard it all.

Properly charged, properly tossed out of court! :)

Wow! Touched a nerve with that one! @idontknowanythingjustaskmywife & others, if I intended to kill someone I would load a pistol. I don't claim to ever have wanted to do that. Did I say I did?
BTW, the pistol was sold more than a decade ago.
It was a poor attempt at an analogy. Any bullet loaded into a pistol, and hollow points in particular, are meant to kill = bonehead drinking himself blind drunk and getting behind the wheel on multiple occasions also has intent to kill. Judge Higgins was right, It doesn't fit the attempted murder statute and was a stretch to try to make it so. I hope that sentencing on the guilty pleas reflects the reality of his intent when he opened the bottle.
Let me try this again. I don't see the difference in intent. If SOMEONE loads a pistol or loads THEMSELVES up with booze, THEY still know that the end result is the same if THEY pull the trigger or start the car.
As to the State Trooper playing chicken, I know 3 children who were hit by drunk drivers. I wasn't there and I don't know the trooper, but I understand the desire to stop someone who could wreak the same damage.
Two of the kids died. One of those deceased was my cousin and was holding her older sister's hand when she was run down and left along side the road. Her sister was holding her as she died. The drunk driver went home and fell asleep in his driveway, too drunk to know he took a life. The other deceased was a baby in a carrier who was run down in her own front yard. The drunk drove through an intersection, across the yard, over the girl and pinned the mother under his car, breaking both her legs. She was gardening at the time. The surviving one has permanent brain damage after being sideswiped. Each one of the families never ever recovered.

You would know this Gasbag had you actually been involved in a felony investigation before; note: serving an inmate with a felony warrant from another jurisdiction is not a "felony investigation"

Give it up, Toadstool!

strike the evidence = tossed out of court.

And probable cause is pretty much a joke nowadays. You can get a magistrate to write a warrant for anybody, for anything. The magistrate should have "struck the evidence" before writing the warrant. :)

"Hitting somebody with a baseball bat is a far cry from attempted murder"

Now I've heard it all, notwithstanding the fact it's a felony for both the civilian and the cop: attempted malicious wounding.

Now we're getting somewhere. At least I now have a baseball bat assault down to malicious wounding from attempted murder.

Toadstool.If he would have gone after the cop with a ball bat He'd be dead now. The cop would have shot him.
Gasbag Self Ordained Expert.Man you snack someone with a ball bat they're going to charge you with attemped murder .A weapon is a weapon . Just think about it !

No. I do not watch COPS on TV. Now I know where some of you are getting these silly ideas from though! 50% of what is shown on COPS should never have been broadcast on national TV in the first place, especially the repeated and numerous illegal searches every week. I would be willing to bet a lot of the arrests on COPS TV are probably thrown out of court based on the illegal searches.

Jake, feel free to handle a baseball bat assault on yourself in whatever manner you want. I thought the taser was the most current way to prevent using deadly force when it's not really warranted? (chuckles)

If I was still active duty, I would use a baton first. If that failed to produce acceptable results I would then resort to the taser. And pulling a firearm and shooting a person dead is going to be my last resort. Just like the Gray case in Albemarle County a few years ago.... the baton didn't work, they had no taser, they shot and killed him. While the officer never faced any criminal charges of any type, there was a civil award for wrongful death of $4 million dollars. Just imagine if only $250,000 of that $4 million was awarded in punitive damages and the cop had had to pay it out of his own pocket! (a city or county does not have to pay punitive damages if they elect not to)

We can argue this for a week, you do what you feel comfortable with, and some of us will try alternate routes to disable a combative assailant with a baseball bat.

Now, as far as the news clip from Chicago, what's the answer? Well, there is no simple answer. Crime is on the rise. People will continue to get robbed, raped and assaulted. It's a fact of life. The police can not protect you. The courts have ruled the police have no obligation to protect you, and they have no civil liability if you do become a victim of crime. I'm still not going to shoot somebody with abaseball bat... unless it proves to be my last resort in defending myself.

I never said what SHOULD be done, Gasbag, I'm telling you what the law says is the requirement. Of course a gun shouldn't be used as the first resort. I was simply explaining to you the *correct* legal standard.

Gasbag Self Ordained Expert I wasnt speaking of cops. If you watched something more tha the FAUX NEWS Network you would get it .

Trust me on this, the *correct* legal standard will not protect a police officer in a court of law all the time. Yes, most cops get off the hook by claiming, "woe is me, I feared for my life!" But it's certainly not a guaranteed coverall. The *correct* legal standard also didn't protect the boys in blue when the wrongful death lawsuit was filed a few years ago. It may have shielded them on the criminal side, but certainly not the civil side.

Around 1974 or 1975, myself and an Albemarle County deputy sheriff circled a gun weilding kid in 20 degree weather for 45 minutes while talking him down. He finally surrendered and handed us the gun. We didn't have to shoot and kill him. And we didn't whine that we were in fear for our lives. And we didn't have to charge him with attempted murder. The difference of course is this... the rookies nowadays would have indeed shot this guy and let the Commonwealth Attorney clean up the mess. 36 years later, we both feel good knowing that we didn't have to shoot and kill this guy even though we could have.

Depending on the force used, the city or county does not have to pay any of it because your actions amount to gross negligence and your immunity extends only to simple.

Ohh, by the way, in my personal experiences I have never seen a claim of "qualified immunity" by a cop succeed in any motion to dismiss.

I would like to address Carolyn...Do you have any children? Maybe you should go live in Saudi Arabia where they cut off your hand for stealing! This kid was not trying to kill a cop! I think he will serve enough time with his other felonies and maybe he will get the help he needs for his possible alcohol problem. Would you have him serve life for attempted murder..Congratulations David Heilburg for getting this rediculous charge overturned! And thank you for giving this young man a second chance! We need more lawyers like you!