Robin Sage Jury Hears Eyewitness
The Robin Sage federal lawsuit started the week Monday with dramatic testimony by one of the only three eyewitnesses to the 2002 shooting by a deputy sheriff that left one student soldier dead and another wounded.
"I was in total shock," Charles Leiber said. "I seen the blood come out of his mouth and his hands turning purple."
Leiber was telling the jury what he saw from the passenger seat of a sheriff's patrol car on Feb. 23, 2002. He had driven 1st Lt. Tallas Tomeny and Sgt. Stephen Phelps on a recon mission as part of an Army training exercise called Robin Sage. Their mission was to scope out a bridge on Talc Mine Road near Robbins for a future scenario in this exercise in which civilian volunteers like Leiber play roles as pretend citizens of a fictitious country called Pineland.
Deputy Randall Butler had stopped Leiber's truck and was questioning him about what Tomeny, who was riding in the passenger seat, might have been trying to hide when he ducked down as they passed his patrol car. Phelps was riding in the bed, hunkered down on that cold Saturday afternoon
Leiber, following instructions, stayed in character as he answered the deputy, sticking to their "cover story" that he was just giving migrant workers a ride. He thought Butler was in on the war game and playing a role himself, according to testimony in Greensboro's Federal District Court. Phelps is suing the county and Butler, contending the deputy used unreasonable force when he shot them.
"I have tried and tried for over eight years to get this off my mind," Leiber said, his voice breaking. "Now I am still trying."
In a sometimes heartrending account, Leiber told of watching the deputy and Tomeny struggle over possession of a bag Tomeny had brought to the tailgate of the truck at Butler's request. He said it looked clear to him that Tomeny was stalling, trying to keep Butler from looking at the bag. Leiber said he didn't know at the time that the bag contained an M4 assault rifle.
Butler "flung it behind him" as he drew a can of Mace (actually pepper spray), then started spraying Tomeny, according to Leiber's testimony.
Their voices had raised in anger, but he could not hear anything either actually said from his position in the patrol car with the windows up, the motor and heater running, and the loud sound of the police radio. Tomeny acted aggressively, seemed determined not to let Butler get that bag, Leiber testified. Butler finally was able to wrest it from Tomeny's grasp as the lieutenant crouched down, ready to lunge at the deputy.
"He slung it," Leiber said. "I don't know where it went. I didn't see the bag no more. He drew his Mace and started spraying the lieutenant right in the face. He was looking right at the deputy, and it hit him right in the eyes."
Spraying in the Eyes
Under cross examination by defense attorney Jim Morgan as to whether, from his angle, he could actually see exactly where the fine stream of spray hit, Leiber became agitated.
"I saw him sprayed in the ... eyes!" Leiber shouted. "He covered his eyes (holding hands tight over his own eyes). I seen the spray hit him in the face. He (Butler) was dosing him with the spray and hollering for backup."
Leiber could hear the backup call over the loudspeaker in the patrol car, and could hear Tomeny screaming, but said he could not hear exactly what the soldier might have been saying. He said that he saw Phelps spring up and run jumping from the pickup, then saw Butler shoot Tomeny and turn and shoot Phelps.
"He took off running, maybe two seconds before he was shot," Leiber said.
The spray ran out, and Butler dropped the can, according to the testimony. Tomeny, hands over his eyes, was twisting and turning.
"When he dropped the Mace can, he ran back some," Leiber said. "He done pulled his weapon, and that's when he shot him."
Tomeny died from his injuries, while Phelps survived the shooting.
The Phelps and Tomeny families filed a federal lawsuit against the Sheriff's Office and Butler, who is now the chief deputy for the Lee County Sheriff's Department, in 2004. The Tomeny family settled the case out of court last week. The terms were not disclosed.
The suit alleges that Butler acted unreasonably and used excessive force. It seeks damages for medical costs, pain and suffering and punitive damages. Butler has sued the U.S. Army, claiming it was the Army's neglect to inform law-enforcement agencies and to properly train Robin Sage participants that caused the trouble.
'He Shot Me'
Phelps' case wound to its conclusion Tuesday with testimony by Dave Cloutier, an expert witness on crime scene investigation who specializes in the use of force by law enforcement.
The morning began with the first EMS workers on the scene testifying. Harold Hussey told of arriving with his son at Acorn Ridge Baptist Church, a short distance from his home. He saw that Tomeny was beyond help and rushed to Phelps' side. He was joined shortly by an EMT, Deborah Stout. Hussey told her he had rolled Phelps onto his back where he lay with one arm extended, according to testimony
Stout, going by blood on the pavement and soaked into the clothing, estimated he had lost from "a pint to a pint and a half" of blood before they bandaged bullet wounds on his chest and his right arm.
"He was supine with his eyes closed," Stout said. "He responded to my voice. I told him I was there to help him, that I was with Moore County EMS."
Phelps spoke, saying "mission" and "recon" as she worked to stabilize his condition, fasten him to a board and -- with help from Hussey and EMT Jason Dillon -- load him in a Robbins Rescue Squad vehicle for transportation to Moore Regional Hospital.
Siren screaming, they raced for the hospital. On the way, they tried to keep Phelps talking, keep his attitude positive. They kept him awake and talking. Phelps asked her not to let him die. She said she told him there was "nothing that could happen in the ambulance that day that I couldn't handle. Dying was not an option."
"I can't believe he shot me," Phelps told her, according to her testimony. He asked numerous times about "Thomas" (meaning Tallas).
Detective Greg Beard from the Moore County Sheriff's Office was waiting when their ambulance arrived.
He went into ER room 14 with Phelps, coming out after some time when they needed privacy to attach a Foley catheter. He advised Stout not "to talk to anybody" as this was now "a military matter," she said. Later, when court broke for the noon recess, Stout said she understood Beard to mean not to talk to anybody but law enforcement.
The defense was expected to start putting on its case in the afternoon, with Beard the first witness.
Contact John Chappell at (910) 783-5841 or by e-mail at firstname.lastname@example.org.
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