Jury Hears of Details in Shooting
A confrontation seven years ago, lasting two minutes and 40 seconds, was the subject of almost an entire day of examination and cross-examination Thursday at Federal District Court in Greensboro.
Opening arguments and testimony began Wednesday in a civil lawsuit brought by a former Special Forces soldier against the Moore County Sheriff's Department and the deputy who shot and wounded him.
Former Deputy Randall Butler shot Lt. Tallas Tomeny and Sgt. Stephen Phelps during a Special Forces training exercise in February 2002. Tomeny died, and Phelps was badly wounded. Both were student soldiers and thought Butler was playing a role in a training scenario, according to testimony. When he stopped the pickup they were riding in, it was because its driving around Robbins that Saturday aroused his suspicions.
At issue Thursday afternoon was whether or not Phelps could see the pepper spray used by Butler actually hit Tomeny. Also at issue was whether Butler could tell that there was an assault rifle in the black bag that he wrested from Tomeny after a brief struggle, hurling it behind him in the vicinity of his patrol car.
Phelps, sitting in the bed of the truck and pretending to be asleep, observed the beginning of this, and then his attention was riveted by Butler first drawing a sidearm and then holstering it and drawing the pepper spray and spraying at Tomeny, who put up his hands and then backed out of Phelps' view
Attorneys also paid close attention to the question of whether Butler actually knew there was an assault rifle in the back pack. He did, apparently, react to the weight of the pack when he grabbed it, according to Phelps' testimony.
Phelps was cross-examined diligently by attorney Jim Morgan, who drew out of him that he could not actually see the side of the backpack that was away from him and so could not see whether the zipper was or was not partially opened.
Morgan had Phelps replace an M4 rifle that had been brought to court as an example in the backpack, strapping it in the way it had been that day, in order to demonstrate to the jury that it would not have fallen out of the backpack if it had been partially opened.
Phelps testified Thursday that accounts he gave to SBI investigators and to a lieutenant colonel also investigating for the Army during the days immediately following the shooting are no longer in his memory. He was on morphine and other painkillers, he said, and has no memory of speaking to the SBI agent and only some memory of what he told the Army officer.
Butler was on the lookout for criminals responsible for a number of daylight burglaries in the upper part of the county. The day was cold, according to the testimony heard on Wednesday.
Tomeny and Phelps were bundled up against the weather. The lieutenant rode in front, on the passenger side, with a civilian volunteer, Charles Leiber, driving the truck. Phelps huddled in back, crouched against the cab. He had two fishing rods and a tackle box, part of his cover story as a farm worker with a day off, Phelps said in court.
He was the first witness in his lawsuit alleging that Butler was reckless and negligent when he shot the two soldiers. The case is being heard before Judge William Osteen Jr.
Osteen sits before a floor-to-ceiling maroon velvet drape bearing a large image of the Great Seal of the United States. On either side of him, national flags hang from tall flagpoles topped with eagles. As he looks out past jurors and tables of lawyers over spectators and press, he can see at the far end a life-size oil painting looking remarkably like an image of himself. It is a likeness of his father, who retired from this same bench just before his own appointment.
Phelps' lawyer, Carlos Mahoney, told jurors in an opening statement that his client did nothing to justify Butler's attack. He said the deputy lost his professional restraint and acted irresponsibly when he shot the two soldiers.
Mahoney's version has Butler first pepper-spraying Tomeny, then shooting him twice before turning his gun on Phelps, who was trying to get away. On the other hand, defense attorney Morgan says nobody told Butler about those Army games. He'd never heard of Robin Sage, the culminating exercise that takes place now eight times a year in 15 N.C. counties.
'Hanging by a Thread'
Butler spent most of his 15 years of law enforcement in Lee County, where he is now second in command of the Lee County Sheriff's Office as chief deputy. His stint in Moore County as a road deputy was a temporary detour in his career.
When he found himself alone with three suspicious men in a deserted church parking lot and glimpsed an M4 assault rifle in a black carry-on bag Tomeny had been trying to hide, Butler understood he was in mortal peril, his lawyer said.
He tussled with Tomeny over that bag. Then, according to both the opening statement and testimony, he pulled it away and threw it back toward his patrol car.
At that moment he felt Tomeny reaching for his sidearm, Morgan said. Turning, he used his left hand to pepper spray Tomeny, who turned his head just in time. Then Butler pulled his handgun, and Phelps dived from the truck, heading for the bag and its assault rifle.
Phelps testified he only wanted to keep from being washed out or having to repeat the program for giving up his weapon. He said he was heading for the woods and taking the M4 along with him.
Morgan said that Butler saw him heading to get the gun, that he felt his life "hanging by a thread," and that he shot to defend his life, not knowing the men were playing a soldier's game and thought him in on it.
Phelps said Leiber had stopped and called in at one point, and they'd seen the deputy more than once. When Butler stopped them, Phelps said he assumed they were in a test scenario. They'd be graded on their reaction.
He told the court his training when confronted by law enforcement was to assume they were the enemy in the imaginary country of Pineland where they had infiltrated to aid local resistance fighters played by volunteers like Leiber.
The standard procedure was first try to talk your way out of trouble, second to try bribery (with fake Pineland currency that looks like Monopoly money) and last of all to submit to capture.
Another version of the standard procedure ends differently, Morgan told the court. It says that if bribery fails, kill the policeman. It assumes the police are playing roles. Butler wasn't.
At one point, Phelps dropped to the courtroom floor to show jurors the position he had been in when he was shot. A lawyer took the position he said Butler was in when he fired, over to Phelps' left and in front of him about 10 feet.
This current trial will ask this jury to decide whether to believe Butler, Phelps or Leiber. All three of their accounts differ to one degree or another, especially on the question of who Butler shot first, and what the soldiers said and did in the moments before, during and after the shootings.
Contact John Chappell at 783-5841 or by e-mail at email@example.com.
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