MUSKEGON COUNTY PROSECUTING ATTORNEY

LEGAL OPINION FROM THE OFFICE OF THE MUSKEGON COUNTY PROSECUTING ATTORNEY City of Norton Shores Police Officer Involved Shooting of February 20, 2011 Submitted by: Tony Tague Prosecuting Attorney

I. INTRODUCTION The following factual incident report and legal opinion are a result of an investigation by the Michigan State Police into the officer involved shooting death of Benjamin Arthur Kukulka, date of birth October 7, 1962. The Michigan State Police provided my office with investigative reports which included written reports of interviews and observations, video and audio documentation, the Michigan State Police Laboratory report, the Forensic Autopsy report, medical reports, and photographs. A review of this investigation has been completed and a factual statement outlining the incident, a legal analysis and my conclusion as it relates to the facts and the law of the State of Michigan follow. II. FACTS On Sunday, February 20, 2011, at approximately 11:02 am, Muskegon County Central Dispatch received a 911 call for 1157 E. Norton Avenue, in the City of Norton Shores. The caller, later identified as 84-year-old Alzheimer patient Polly Kukulka, did not identify herself and did not speak to the 911 dispatcher but an open line allowed the dispatcher to hear conversation between Polly Kukulka and Benjamin Kukulka. The dispatcher was able to discern that Polly was talking to a male, who was bleeding heavily, and pleading with the male to stop hurting himself. Pro-Med paramedics, Officer Michael Wasilewski and Corporal Matthew Rhyndress from the Norton Shores Police Department were dispatched. Ofc Wasilewski was the first to arrive on the scene. Ofc Wasilewski had a prior contact with Benjamin Kukulka and, due to that prior contact involving resisting and obstructing police, waited for Cpl Rhyndress to arrive. Officers approached the residence with Wasilewski entering first. As officers climbed the stairs to the kitchen area, Ofc Wasilewski was immediately confronted by an agitated Benjamin Kukulka, carrying a knife in each hand, and having obvious stab wounds to his neck with blood on his shirt. Both officers drew their service weapons and started talking to Kukulka. Officers called for Polly and, although they could hear her, they could not see her, did not know where in the residence she was located and did not know initially if she was injured. Officers ordered Kukulka to drop the knives and asked Kukulka where Polly was and if she was all right. Over the time period of the confrontation Kukulka became increasingly agitated telling officers, kill me, and continuing to stab himself in the neck with one of the knives. At one point, Kukulka charged toward officers yelling and screaming only to retreat moments later. Cpl Rhyndress and Ofc Wasilewski switched places so that Rhyndress, having had SWAT training and hostage rescue training, would be in front. Although he could not see her, Rhyndress was able to communicate with Polly, who told him she was unhurt

but was on the floor and could not get up. During this time Rhyndress continued to address Kukulka in a calm, measured voice. Kukulka, however, did not respond appropriately and continued to become more agitated escalating his shouting at the officers and saying, kill me now. Officers were still trying to talk to Kukulka and defuse the situation when Polly was apparently able to get up off the floor and, walking with a cane, came through the doorway and into the kitchen. Officers told state police investigators that immediately upon seeing Polly, Benjamin Kukulka stepped up behind her with a knife in each hand and both knives raised to her neck level. Ofc Wasilewski described Kukulka as standing directly behind Polly with his arms almost in a bear-hug with the knives pointed upward. Cpl Rhyndress told state police investigators that when he saw Kukulka walk up behind Polly with the knives up, he had no choice, he started to close the distance and for Polly s safety shot Kukulka. Cpl Rhyndress told investigators that the only shot he had was to Kukulka s head and he discharged his service weapon one time. Kukulka immediately fell to the floor and Polly went down with him. Cpl Rhyndress told investigators that Polly was still inside Kukulka s arms with the knives still in Kukulka s hands. Both officers rushed toward Polly and Ofc Wasilewski attempted to yank Polly away but Kukulka was still holding her and he could not free her. Cpl Rhyndress told investigators that he closed the distance between them and tried to pull Kukulka s arm away but felt resistance. Cpl Rhyndress stated that for Polly s safety, and his, he pointed his service weapon toward Kukulka s head and pulled the trigger one more time. Kukulka went limp and officers were able to pull Polly to safety. Both officers observed that Kukulka still had both knives in his hands as they pulled Polly away. Although Rhyndress was not aware he was injured, Cpl Rhyndress had been stabbed by Kukulka in the area of the left knee. The audio exchanges between Corporal Rhyndress, Officer Wasilewski, Benjamin Kukulka and Polly Kukulka were recorded on both the 911 Central Dispatch Tape and Cpl Ryndress cruiser audio. Both these recording are consistent with each other. Upon arrival, Ofc Wasilewski and Cpl Rhyndress are both heard trying to determine where Polly Kukulka was and whether she was injured. During this time, Cpl Rhyndress is also heard giving three commands to Kukulka to not come any closer, and then three more commands to drop the knife. During this initial exchange, Rhyndress is using a firm tone, but is not yelling or screaming at Kukulka or acting in an aggressive manner. Rhyndress is then heard talking to Kukulka, in a calm, soothing tone, saying Calm down boss. Rhyndress is then heard asking, You didn t hurt your mom right? You love your mom. You love your mom right? These efforts by Rhyndress to calm Kukulka and distract and engage him in conversation were unsuccessful. Throughout the encounter, Kukulka can be heard moaning and repeatedly saying kill me in an increasingly more and more agitated tone. In total, Kukulka says kill me or kill me now a total of 21 times. Rhyndress is next heard ordering Kukulka, let her go ; a

command repeated twice by Wasilewski as well. Following these commands, Polly Kukulka is heard starting to scream and the two shots are then heard, approximately 5 seconds apart. During this inquiry state police investigators confirmed that 84-year-old Polly Kukulka had been diagnosed with Alzheimer disease and suffered from both short term and long term memory loss. Polly Kukulka was interviewed by state police investigators and investigators noted that she, cannot seem to clearly recall the events surrounding the shooting. Polly told the investigators that she observed Kukulka locking all the windows and doors the night before the shooting. Polly said that when she confronted Kukulka he told her that he thought, they re coming to get me. The morning of the incident, Polly remembered Kukulka carrying knives and she told him to put the knives down, but he would not and continued to carry them around. Polly could not remember dialing 911, could not remember decedent Kukulka stabbing himself in the neck or bleeding, and told investigators that Kukulka did not say anything to the officers; all facts clearly contradicted by the audio recordings. Polly stated that, when the officers came in, one told her to come out and she remembers that she walked into the kitchen and Kukulka walked up behind her. Polly then stated she came into the kitchen and sat in a chair, she could not see and Kukulka was behind her and she heard a shot. Polly also told investigators that she did not know what happened. Polly s clothing was seized and the back of her clothing was covered with blood, consistent with her being hugged from behind by a bleeding Kukulka. Despite the fact that Polly is clearly heard on the 911 audio tape asking decedent Kukulka to stop hurting himself and telling him to go stand in the bathtub because he was bleeding on the carpet, Polly also told investigators that she had no idea how the blood got on her clothing as Kukulka had not stabbed himself in the neck and was not bleeding. Corporal Rhyndress has been employed as a police officer beginning in 1992. Cpl Rhyndress was hired by the Norton Shores Police Department in 1998. He was promoted to the rank of Corporal in 2006 and has been a member of the Muskegon County Emergency Response Team (ERT) for the last seven years. Cpl Rhyndress has received specialized training in entries and hostage rescue. In addition, Cpl Rhyndress received specialized training and worked as an undercover detective for the West Michigan Enforcement Team (WEMET) from 1998 to 2001. Officer Wasilewski has been employed as a patrolman by the Norton Shores Police Department since October of 1993. The Muskegon County Medical Examiner conducted an autopsy on the body of Benjamin Kukulka. An exterior examination of Kukulka s body revealed two gunshot wounds, one on the left ear and one to the area of the left jaw. There was no soot or gunpowder stippling noted on the skin surrounding either of these wounds. The wound to the left jaw fractured the right lower jaw bone, cut the left common carotid artery, perforated the spine in the area of the fifth cervical vertebra, passed through the spinal

canal and lodged in the neck. The wound path was from front to back, left to right and downward when the body is viewed in the standard anatomical position. A deformed jacketed bullet and metallic fragments were recovered from the end of the wound track. The gunshot wound to the earlobe passed through the soft tissue of the earlobe and the wound track continued as a graze wound behind the ear. No bullet was recovered from this wound track. (State Police investigators did recover this bullet from a wall in the residence.) Further examination of the body located an incised wound on the front of the neck, a cluster of three incised wounds on the upper front right neck, a cluster of three stab wounds on the lateral right neck and a stab wound with two sharp ends on the left chest. The Medical Examiner determined the cause of death as multiple gunshot wounds. I have reviewed the medical reports and photographs concerning the treatment of Corporal Rhyndress. Cpl Rhyndress was taken to Mercy Health Partners in Muskegon, Michigan. Cpl Rhyndress was diagnosed as having a stab wound on the medial aspect of the left knee. Although the width of the wound was minor in nature, 1 cm, the depth of the wound was a concern as Cpl Rhyndress was experiencing pain above the distal portion of the medial collateral ligament. Further examination and testing, using both X-rays of the knee and Doppler examination of the artery, determined no acute finding and there did not appear to be any blood flow outside the artery at, or near, the wound site. Of further concern, however, was the transfer of bodily fluids, as Kukulka s blood was likely on the knife because Kukulka had been using the knife to stab himself. The wound was thoroughly cleaned and antibiotics were prescribed as course of treatment. Further testing was given, and additional tests will be performed on decedent Kukulka, to determine whether the officer was exposed to any other communicable deceases. I have reviewed Kukulka s criminal background and contacts with law enforcement. This record includes 19 criminal convictions encompassing the crimes of Armed Robbery, Home Invasion Second Degree, three convictions for Resisting and Obstructing Police and one conviction for Interfering with Electronic Communications, Aggravated Assault, Domestic Violence, Assault and Battery, two separate convictions for Malicious Destruction of Property under $100.00, three separate convictions for Trespass, Operating while Intoxicated, Disorderly Conduct, two separate convictions for Open Alcohol in a Motor Vehicle, and Retail Fraud. Kukulka was sentenced to six to thirty years in the Michigan Department of Corrections in 1994 for Armed Robbery. While on parole in 2004, Kukulka committed a Home Invasion Second Degree and was returned to prison as a Habitual Offender with a sentence of nineteen months to twentytwo years. Kukulka was re-paroled and eventually discharged from parole on July 7, 2008. On May 21, 2009, Kukulka was convicted of three counts of Resisting and Obstructing Police, one count of Interfering with Electronic Communications and Habitual Offender Third Offense. Kukulka was sentenced to seven months in jail and eighteen months probation. Kukulka was discharged from probation on November 17, 2010.

III. LEGAL ANALYSIS A single and well-defined legal concept is integral to the analysis in the instant case. Initially, the police officers were responding to an unknown medical call when they were confronted by a hostile Benjamin Kukulka carrying two knives, his clothing covered in a substantial amount of blood. Subsequently, the situation inside the residence escalated into a violent attack on Kukulka s 84-year-old mother, Polly Kukulka; thus, we must examine the law related to police use of deadly force in the defense of others. The law in the State of Michigan is clear in this instance. Numerous court decisions have clarified the use of deadly force by police officers in a myriad of different circumstances. Police officers, especially when faced with a potentially dangerous situation, must be given a wide degree of discretion in determining what type of action will best ensure the safety of the individuals involved and the general public... Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 659 (1984). This allows a police officer to use as much force as is reasonably necessary. Tope v Howe, 179 Mich App 91, 106 (1989). If a police officer has a reasonable belief that he or she is in great danger, the officer may use such force as is reasonably necessary in self-defense, and the officer is not required to retreat when confronted with a display of force by the suspect. Alexander v Riccinto, 192 Mich App 65, 69 (1991). A peace officer may use deadly force in defense of his own life, in defense of another, or in pursuit of a fleeing felon. Ealey v Detroit, 144 Mich App 324, 332 (1985). In addition to court decisions defining the applicable law, the Michigan Legislature codified the circumstances under which deadly force may be used by any individual in defense of another. MCL 780.972 authorizes any individual to use deadly force when [t]he individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm... to another individual. In Michigan, the Supreme Court has made clear that [j]ustifiable homicide is the result of... a police officer acting reasonably in the course of his or her duties. People v Dykhouse, 418 Mich 488, 510 n 10 (1984) (emphasis supplied) (CAVANAGH, J., dissenting). A. Use of Deadly Force In Defense of Others Initially, in examining the actions of the decedent and officers we are guided by the principals provided by the Michigan Supreme Court in People v Doss, 406 Mich 90, 102 (1979), The reasonableness of the force used must be judged in the light of the circumstances as they appeared to the officer at the time he acted, and the measure is

generally considered to be that which an ordinarily prudent and intelligent person with the knowledge and in the situation of the... officer would have deemed necessary under the circumstances. As the United States Supreme Court has noted, "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer at the scene, rather than with 20/20 hindsight..." Graham v Connor, 490 US 386, 396-397 (1989). In this instance, officers were confronted in a confined space by an individual with a known history of resisting and obstructing police, carrying two knives, covered in blood from self-inflicted stab wounds, acting in an aggressive and irrational manner, and shouting repeatedly kill me. We have already examined the repeated actions of Cpl Rhyndress to calm decedent Kukulka and de-escalate the situation through the use of commands, distraction and distance. It is clear that, despite the efforts of Cpl Rhyndress, Kukulka escalated the confrontation to the point where Cpl Rhyndress honestly and reasonably believed 84-year-old Polly Kukulka was in imminent danger of death or great bodily harm and that it was necessary for him to exercise deadly force to protect her. This is not only established by Cpl Rhyndress and Ofc Wasilewski s statements to state police investigators, but by audio, physical and medical evidence as well. The officers efforts to de-escalate this confrontation were opposed at every single stage by Kukulka. An examination of photographs of decedent Kukulka s neck show multiple self-inflicted stab wounds, and examination of Kukulka s clothing shows a stream of blood having freely flowed from his neck wounds saturating his shirt and pants area below, corroborating the officers descriptions of the decedent and his irrational condition. Analysis of the audio recordings show an armed Kukulka repeatedly extorting the officers to kill me and escalating the confrontation, despite Cpl Rhyndress efforts to calm and distract him, to the point where an increasingly deranged Kukulka is heard later in the confrontation repeatedly shouting, kill me now! When 84-year-old Polly Kukulka walked into the kitchen aided by her cane, Kukulka immediately came up behind her, grabbed her and pointed the knives towards her neck area. Polly s early absence from the kitchen area is confirmed in the audio recordings where she is heard answering the officers calls attempting to identify her location and condition and she is heard saying she is on the floor and is having trouble getting up. Polly Kukulka s subsequent presence in the kitchen is confirmed by the officers statements and the audio recordings where both officers are heard commanding Kukulka to let her go and Polly s screams. Photographs of decedent Kukulka after the shooting show him lying on the kitchen floor with a large butcher knife in his left hand, a smaller filet knife in his right hand and Polly s cane on the floor nearby. There is absolutely no doubt that Cpl Ryndress reasonably feared for the life of Polly Kukulka and was left with no alternative but to use deadly force to protect her.

IV. CONCLUSION The Michigan State Police conducted a thorough and meticulous investigation into the shooting death of Benjamin Arthur Kukulka. A review of all the evidence presented to my office, including indisputable audio evidence, clearly establishes that Corporal Matthew Rhyndress used reasonable force in his confrontation with decedent Kukulka and was justified in using deadly force against decedent Kukulka in defense of others. The officer s belief that Polly Kukulka s life was threatened was clearly reasonable under all the circumstances underlying this malevolent attack by decedent Kukulka. Corporal Rhyndress acted to protect the life of 84-year-old Polly Kukulka, placing himself in harms way and suffering a stab wound to the lower leg. Without Corporal Rhyndress intervention, a continued assault by decedent Kukulka would likely have resulted in the death of, or great bodily harm to, Polly Kukulka. Dated: March 4, 2011 Respectfully submitted, Tony Tague Prosecuting Attorney