The Buffalo man who fired a shotgun out of his bedroom window in November and seriously injured a 12-year-old boy won't face any criminal charges.
An Erie County grand jury voted not to indict Edward M. Bald, 61, a decision revealed in court Friday morning before Erie County Court Judge Sheila A. DiTullio.
Investigators determined the 12-year-old and a 15-year-old boy planned to break into his Quincy Street house thinking no one was home, Erie County District Attorney John J. Flynn Jr. said.
"The boy was too sick to go to school, but well enough to join in on a home invasion," Bald said Thursday. "It wasn't random; it was planned."
Bald said police discovered a black mask on the ground outside the window shortly after the incident.
Bald, who was asleep when a rock was thrown through his bedroom window, told authorities he thought he was about to be robbed. So he grabbed his shotgun and fired through a hole in the glass.
Here's what investigators concluded happened that day, according to Flynn, based on statements from Bald, the boy who was shot and the 15-year-old:
The 12-year-old missed the school bus and decided to skip school, walking to the house of his friend – the 15-year-old – on Quincy Street. They hung out for a while, and at some point noticed the car that was usually in Bald's driveway was not there.
So they decided they were going to break in.
Bald was asleep at the time. The two youths went around to the backyard and the 12-year-old threw a brick-sized rock through a window, which was Bald's bedroom.
Bald woke up when the rock went through at about 11:25 a.m. He grabbed the shotgun from the top bunk.
Then a second, larger rock – almost boulder size, according to Flynn – was thrown towards the house because the youths wanted a bigger hole in the window. The second rock hit the side of the house and made the floor shake inside.
So Bald pointed his shotgun at the hole in the window and pulled the trigger.
The 15-year-old carried the 12-year-old out of the backyard and down the street a few houses, before putting him on the ground and running home, where the 15-year-old's mother called 911. Bald called 911, too, along with some neighbors who called when the saw the boy on the street, bleeding.
Bald explained on Thursday that he loaded his gun with buck shot and a deer slug.
"It's the way I load my gun," Bald said. "The first is buck shot; the second is the slug."
Bald claimed he didn't see the 12-year-old outside the window, Flynn said. But Bald wasn't wearing his glasses when he fired the shot.
"He also is literally blind without his glasses and his glasses were on a table next to his bed, and he did not put his glasses on when he shot the shotgun," Flynn said. "So he really, in essence, couldn't even see out the back of the window."
Bald then put on his glasses and told investigators he saw someone – who investigators believe was the 15-year-old – off to the side. "He was not able to see a face. He just saw someone in a hoodie," Flynn said.
The boy, now 13, lost his right eye, had shotgun pellets in his brain, a collapsed lung, a blood clot, brain swelling and damage to his esophagus, a family member told The Buffalo News a few days after the shooting. He remained in the hospital until Dec. 5.
Bald was extremely cooperative in the investigation, Flynn said, giving what amounted to four statements to police – his 911 call; at the scene when officers arrived; later that day in the homicide squad; and Dec. 11 being interviewed again by police with an attorney present.
The Erie County Attorney's Office, which handles the prosecution of juveniles in family court, agreed to grant the 12-year-old immunity in order for him to make a statement to police, Flynn said. No charges have been filed against the 15-year-old.
State law allows a person to use deadly force to defend his or her home only under limited circumstances. Those include when a person reasonably believes such action is necessary to stop or prevent a burglary or attempted burglary. The use of physical force, but not deadly force, is allowed in defending a person's own home when the crime involved is larceny or criminal mischief – like the breaking of a window.
"Mr. Bald said that he thought that he was being robbed," Flynn said.
In the days after the shooting, the boy's aunt told The News they had not yet been able to hear the boy's side of the story and said the family did not want to focus on the legality of the shooting. She said the family wasn't sure what the boy and another boy who was also at the scene were doing at the property but acknowledged Bald "had a right to protect his property and his home."
Bald reported to police in July 2015 that someone opened a bathroom window at his home after cutting a screen and popping it out of the jamb, according to a police report. Bald also reported in December 2004 that someone tried breaking into his home by breaking a window, according to another police report.
Bald's neighbors have also reported numerous break-ins prior to Nov. 17, Flynn said.
The legal standard in New York state for justification involves a subjective test, he said. "Did Mr. Bald have a reasonable belief that he was being burglarized based on his circumstances?" the district attorney said.
Both youths admitted they planned to rob the house, Flynn said.
Most laws and most criminal procedure rules in the state have purely objective elements, the district attorney said. But juries and grand juries have to consider what the person claiming they were justified knew and add that to the equation, Flynn said.
Bald potentially faced a reckless assault charge.
"I believe that there was evidence that I felt that the grand jury should hear that showed that his conduct could have been reckless, in that taking a shotgun without your glasses on, being virtually blind and just shooting randomly out the window," Flynn said.
"He called it a 'wild shot,' " Flynn continued. "So he even admitted to police that it was a wild shot. He just basically stuck his shotgun out the back of the window and shot. I believe that that was credible evidence that his conduct was reckless."
An argument could be made that Bald should have put his glasses on and looked out the window to assess the situation before firing the shot, Flynn said.
Since the shooting, Bald said he received 40 to 45 telephone calls at his home where the caller says nothing but does not hang up.
"I'm getting these foolish phone calls that fill up my answering machine with silence," Bald said.