On September 13, 2009, a Sunday, Eric Ogilvie got into a heated argument with his neighbor, Eric Watson, in the town of Taylor, Michigan, a suburb of Detroit.
Watson had asked Ogilvie to clean up some lawn clippings from the sidewalk. Ogilvie responded that he would once Watson cleaned up their shared property line. They began yelling at each other. Ogilvie told Watson to get off his property and pointed his finger at Watson, who pushed it away. Ogilvie’s 3-year-old son was also outside at the time.
Eventually, Ogilvie removed a handgun from a bag he wore around his waist and pointed it at Watson, who then backed away. Ogilvie’s wife, Amy, called 911, as did Rebecca Swanson, Ogilvie’s neighbor on the other side.
Officers from the Taylor Police Department arrived and arrested Ogilvie, charging him with assault with a deadly weapon and felony possession of a weapon.
Ogilvie’s trial in Wayne County Circuit Court began on February 10, 2010, presided over by Judge Patricia Fresard. He was represented by Matthew Kolodziejski.
Watson testified Ogilvie was working in his own yard when Watson approached to ask him about grass clippings that either ended up on the sidewalk or on Watson’s property. He said that Ogilvie asked him to leave, and Watson refused. The men began yelling. Watson said he pushed Ogilvie, and that Ogilvie drew a weapon while Watson was backing away.
Ogilvie testified that he was working in his yard when Watson approached and said, “if you touch my mailbox, I’m going to beat your ass.” He said Watson was already agitated before he stepped onto Ogilvie’s lawn.
Ogilvie said that he told Watson to leave his property and then started to return to his yard work, but Watson got “right on top of me … his nose was on my face and on my nose, his trunk area was right on my trunk or on my stomach area.” Ogilvie said that Watson punched him in the head, began acting more erratic, and moved his hands aggressively.
Ogilvie said he asked his wife and Swanson to call 911 and that Watson continued to threaten him, saying “I’m going to beat your ass … I will kill you,” and “pull yours I’ll pull mine.”
Ogilvie said that based on these statements, he believed that Watson was carrying a weapon. He said that Watson put his hands behind his back and into his pocket, appearing to draw a weapon. Ogilvie said he feared for his life and for his son’s and drew his gun in self-defense.
Ogilvie had a license to carry the weapon, which was never fired.
Swanson had recently moved to the street and didn’t know either man well. She testified that she saw Watson approach Ogilvie, while he was in his yard with his son. She said that Watson was yelling at Ogilvie, and Ogilvie asked Watson to “stop and to leave him alone.”
Swanson testified that Ogilvie twice asked her to call 911 and said that he felt threatened. She testified that she saw “hand movement” by Watson and saw him reach around his back for something, but he might have been adjusting his clothing.
Amy Ogilvie invoked her spousal privilege against testifying.
Prior to trial, Kolodziejski filed a discovery order on September 21, 2009, with the Taylor Police Department to obtain the 911 calls. The department’s response referenced the calls but did not include either recordings or transcripts. A private investigator working with Kolodziejski contacted the department in late December 2009 and was told the recordings had either been destroyed or recorded over.
During closing arguments, the state said that Ogilvie had used deadly force and acted unreasonably. The prosecutor asked, “Is it reasonable to believe that your neighbor, your neighbor that let your kids play on their swing set is going to be packed locked and loaded like [defendant] was, ready to pull that gun and be trigger happy?”
Prior to its deliberations, the jury was given instructions by Judge Fresard on several matters, including Michigan law on the use of deadly force. Its members were told that Ogilvie could only claim self-defense of himself or his son if he “honestly and reasonably believe[d] that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself” or his son. The jury was also told that it could consider whether Ogilvie could have safely retreated.
The jury convicted Ogilvie of both counts on February 11, 2010. On April 16, he was sentenced to two years in prison on the felony firearm conviction and three years probation for the assault. Ogilvie was released on an appeal bond on December 6, 2010, but after being convicted of a probation violation based on a failure to report a change of address and receive counseling, he was resentenced on April 29, 2011, to one to four years in prison on the felony assault conviction. He was released on June 15, 2015, although he was incarcerated again for two weeks in March 2016 for allegedly violating the conditions of his parole.
After his conviction, Ogilvie moved for a new trial arguing that he had been convicted based on flawed jury instructions. He hadn’t used deadly force. Rather, he threatened to use deadly force. Judge Fresard’s instructions had been wrong, the motion said, and Kolodziejski had been ineffective in his failure to object.
Separately, Ogilvie’s brother had obtained the 911 calls from the Taylor Police Department. The transcript of Swanson’s call was consistent with her testimony. She told the 911 operator, “He [Watson] was putting his hands in his pants and it didn’t look like … I’m sorry, I wasn’t sure if he was pulling out a gun. So I think that’s why the neighbor, the other neighbor, pulled out a gun.” The transcript of Amy Ogilvie’s 911 call said that her neighbor just attacked her husband.
After an evidentiary hearing, Judge Fresard denied Ogilvie’s motion for a new trial. While the case was on appeal, Ogilvie’s court-appointed appellate counsel withdrew from the case in February 2012.
Ogilvie asked for a new attorney. The chief judge for Wayne County Circuit Court told him one would be appointed. But there were substantial delays in making that appointment, and Ogilvie ended up filing a brief by himself on August 17, 2012, nearly a month late. Because the brief was not considered timely, he lost his right to have an oral argument before the Michigan Court of Appeals, which affirmed his conviction on May 23, 2013.
Three years later, on March 18, 2016, Ogilvie, now represented by Jennifer Qonja and Frank Eaman, filed a petition for a writ of habeas corpus in U.S. District Court for the Eastern District of Michigan. The petition reasserted the arguments made in Ogilvie’s initial appeals but also said that his constitutional rights had been violated by the court’s failure to appoint appellate counsel.
In a response, the state agreed that Ogilvie deserved a new appeal but not a new trial. It said that Ogilvie had fired three of his appellate attorneys and never told the Court of Appeals of the problems he was facing getting officials in Wayne County to appoint new appellate counsel.
“To reiterate, this is not to say that the trial court’s error in failing to appoint new counsel after Ogilvie requested it was not a serious one; it was,” the state said in its response. “And it requires relief. But it does not transform what is manifestly a rejection of Ogilvie’s claims on the merits into something else. No authority calls for this interpretation, and this Court should reject it.”
On July 6, 2020, Judge Matthew Leitman granted part of Ogilvie’s petition, ruling that he was denied assistance of appellate counsel and reinstating his right to appeal in state court. Judge Leitman did not rule on the other claims in Ogilvie’s petition.
On March 3, 2022, a three-judge panel of the Michigan Court of Appeals granted Ogilvie a new trial based on flawed jury instructions and Kolodziejski’s failure to object. (None of these judges had taken part in his initial appellate ruling.) Noting that Ogilvie had not fired his weapon, the court said that the jury should have been instructed on the use of non-deadly force, rather than deadly force. The instructions also misstated the situations where self-defense is acceptable.
“As a consequence, the instructions as given increased the burden upon the defense and lightened the burden upon the prosecution,” the court said.
On February 29, 2024, Ogilvie filed a pro se motion to dismiss his case. He noted that two years had passed since the Court of Appeals ruling, and there had been no action by Wayne County prosecutors to pursue a resolution of his case.
“In effect, there appears to be a failure to prosecute,” Ogilvie wrote. “The defendant has always maintained his innocence, and he has the right to the presumption of innocence in this case. He does not have any convictions. However, the aspects of a pending trial, and of pending charges are prejudicial to the defendant’s liberty interests, rights, and to employment opportunities, and to his reputation in the community.”
The state dismissed the charges against Ogilvie on April 4, 2024.
– Ken Otterbourg
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