Soldier's Attorneys Rest Case in Trial
Attorneys for a soldier shot by a Moore County deputy sheriff during the Robin Sage training exercise seven years ago rested their case Wednesday in his suit against the county and the deputy.
The lawsuit resulted from a 2002 incident in which one soldier was shot and killed and another was seriously wounded.
An expert witness described standards for police use of force and the results of a bullet trajectory test during testimony Wednesday. The first defense witness told what the soldier said in the emergency room.
Stephen Phelps, who survived, was a sergeant in the final phase of Special Forces training on Feb. 23, 2002, when he and 1st Lt. Tallas Tomeny were riding around Robbins conducting a mock "recon" mission. Their pickup, driven by Charlie Leiber -- a civilian volunteer who helps the Army in the training exercise -- attracted the attention of Deputy Randall Butler.
Butler was the only deputy on road patrol that Saturday morning and on the lookout for burglars who had been breaking into rural houses on weekends in northern Moore County. He pulled over Leiber's green truck in the parking lot at Acorn Ridge Baptist Church, just north of town off N.C. 705.
That's when things went terribly wrong. Leiber, Phelps and the other soldier -- 1st Lt. Tallas Tomeny -- all assumed Butler was also part of their training scenario. Other deputies in other counties take part even today. All are pretending to be part of a conflict in Pineland, an imaginary country comprised of some 15 counties across the central part of the state. Butler, who came to Moore from Lee County, said had never heard of Pineland.
At the traffic stop, Butler checked Leiber's license, then left him sitting in the patrol car while he went to get Tomeny out of the pickup. Tomeny had a bag with him that contained a disassembled M4 assault rifle strapped in a lower zipped compartment. Tomeny, playing the war game, tried to keep Butler from seeing the weapon, according to earlier testimony by Phelps, who watched the two struggle over the bag from where he sat in the truck bed, pretending to sleep, but peeping out from half-closed eyes.
In a matter of seconds, their push-pull tussle over that case turned into what the plaintiff's final witness called "a lethal force encounter." Dave Cloutier, retired after a dozen years teaching police at the state's law enforcement academy in Salemburg, now spends much of his time as an expert witness on the use of force and crime scene investigation.
Both Phelps and Leiber had described the deputy turning and hurling the bag away after wresting it from Tomeny, then drawing his pistol and pointing it at Tomeny. Butler, at the time, had no idea these men in rough civilian clothes were part of an Army exercise. He may have figured out there was a weapon in the bag, though Phelps said Tomeny never opened that part of the case.
However it came to pass, Butler next holstered his sidearm and began spraying Tomeny with pepper spray as Tomeny, screaming and swearing, hands to eyes, twisted and turned, backing away, according to Leiber's testimony. Butler's spray ran out, and he shot Tomeny, who died at the scene.
Phelps, as they passed out of his view around the wood-sided pickup, had jumped out of the truck running for the bag. He testified that he was going to grab their weapon and make it to trees some distance away. Phelps testified that he heard two shots, then turned too quickly and slipped. As he was getting to his feet, he was shot twice, once in the chest and once in his right upper arm.
'Lethal Force Justified'
On the stand Cloutier described his reconstruction of the shooting using a mannequin just a week before trial. He told jurors that if Phelps' testimony is true, Butler used unreasonable force. He said there was simply not enough information available from a State Bureau of Investigation (SBI) report to definitively place the position where Phelps landed and was treated by EMTs or where his blood marked the pavement for the restaging to be based on anything more than Phelps' current recollection.
Under cross-examination by attorney Brad Wood, Cloutier said that if Butler's statement of their positions is accurate, then deadly force would have been justified. Where Phelps landed is becoming a critical point of contention as statements by various witness differ, sometimes between their earlier accounts and later testimony in the trial.
The mannequin restaging used the locations of Phelps' wounds, the force of a .40-caliber bullet when fired and other technical details to determine the likely position he would have been in when hit. It matches his account that he was on all fours rather than Butler's previous statements that he was hiding behind the patrol car and getting up as if to shoot, Cloutier said.
Under cross-examination, he firmly stated that if other variables, such as the distance Phelps was from the patrol car, matched Butler's account, then the officer would have been acting reasonably and in fear of his life.
"Absolutely," Cloutier said. "Yes, sir."
Butler has said he felt Tomeny trying to get his sidearm when he turned to fling the bag away after realizing it contained a weapon. An officer trying to retain his weapon would be justified in using deadly force, Cloutier said.
"It's a lethal force encounter, and in my opinion, the officer would be justified in using lethal force," Cloutier said. "Where there is a potential for others to get involved as well, get them down on the ground, keep them controlled, wait for backup."
'Reaching for Gun'
Former Moore County detective Greg Beard, now retired, was the first witness for the defense to testify after Judge William V. Osteen Jr. denied a defense motion for a directed verdict in their favor. He will rule later whether punitive damages may be sought.
Beard was in Aberdeen, on call, when his pager went off. After checking in, he headed for the scene, he said. On the way, another call directed him to FirstHealth Moore Regional Hospital, where Phelps was being taken for treatment.
Beard was waiting as Phelps was taken from the ambulance and stayed beside him all the way into a trauma room in the emergency room. He said Phelps was sitting up, alert, complaining of pain and talking about what happened.
"He said he didn't understand why he was shot," Beard testified. "I was very careful to take down everything he said."
Beard described listening, then going to a nurse's station and writing out an account of what he'd been told. That account was offered by the defense as its first evidence, but Osteen may or may not allow jurors to see it, because it is an unsigned, unsworn document. Beard was permitted to refer to it during his testimony. He would not admit it as a "business record," which would give that statement greater standing.
The key element in it is what Beard claims Phelps told him pertaining to the bag and its M4.
"He was angry, trying to understand why he got shot," Beard testified. "He said he was 'reaching into a bag to retrieve a gun' and got shot."
Later, asked again what his written account of the emergency room interview says, Beard consulted the papers.
"He said he was reaching in a bag to get a gun and got shot," Beard said. "He never pulled the gun out of the bag."
Testimony continued Thursday with witnesses from SBI taking the stand. Butler is also expected to testify, and Cloutier may be recalled.
More like this story