Soldier Wins Case in Shooting
A federal jury in Greensboro awarded $1.5 million in compensatory and punitive damages to a soldier shot by a Moore County deputy seven years ago.
The jury began deliberating about 7:30 p.m. Tuesday and returned with its verdict just before 10 p.m.
Randall Butler, who is now chief deputy of Lee County, shot former Army Sgt. Stephen Phelps and 1st Lt. Tallas Tomeny in an altercation during a traffic stop near Robbins.
Tomeny died, and Phelps was badly wounded. The two soldiers, along with a civilian volunteer, Charlie Leiber, were involved in a Special Forces training exercise called Robin Sage. They thought Butler was part of it, but he claimed that he knew nothing about the exercise.
Phelps and Tomeny's estate filed a lawsuit in 2004. They sued Butler both personally and in his capacity as a law-enforcement officer and Lane Carter in his capacity as sheriff of Moore County. Tomeny's family settled out of court before the trial began two weeks ago.
Jurors found that Butler used excessive force and awarded $650,000 in compensatory damages for Phelps' Fourth Amendment civil rights claim. They awarded another $100,000 in federal punitive damages.
Then, under N.C. law, they found Butler committed battery against Phelps by shooting him and awarded $650,000 in compensatory damages and $100,000 in state punitive damages.
A controversy arose after the trial about the amount of the damages, with attorneys for Butler putting the figure at only $750,000. They didn't add both damage awards together, effectively doubling the amount.
Jurors understood their verdict differently. The foreman of the four-man, eight-woman panel said on his way out of court that they had awarded the full $1.5 million, intending federal and state awards to be separate.
Motions about the amount of the jury award are expected to be filed with the court at some point in the near future, so the final total may change.
The key thing affecting their decision, jurors said, was eyewitness testimony -- primarily from Leiber, who watched everything from the front seat of Butler's patrol vehicle.
Leiber's manner and general country demeanor during his testimony impressed them as the unvarnished, truthful account of an ordinary man who volunteers to help train future Green Berets, according to jurors.
The first indication that jurors might be siding with Phelps came with a question sent out to the judge asking what Carlos Mahoney, one of the plaintiff's attorneys, meant by figures he had proposed as reasonable compensation. They asked did he mean them only for federal claims or for both federal and state claims.
It took only minutes after receiving Judge William Osteen Jr.'s instruction for them to return with a verdict. Jurors didn't believe Butler when he said he had seen a gun, according to findings of fact on the verdict sheet. They did not believe he was acting in self-defense or that he had heard Tomeny shout, "Shoot him! Kill him!" or anything like that, as Butler had testified.
Butler testified he had seen what looked to him like two machine guns in a black backpack Tomeny was trying to hide. Hurling the bag behind him, Butler said he whirled around to break Tomeny's two-handed grip on his service revolver, draw the gun, then attempt to pepper spray the soldier. At that point, Phelps jumped from the truck and went running toward the bag, according to the testimony.
Phelps said he was trying to get away from the pepper spray to a wooded area, taking the bag with him as it contained a disassembled M4 assault rifle. The rifle was loaded with blanks, as are all weapons used in Robin Sage. Butler, who said he never heard of that exercise, told the jury he feared for his life. When he saw Phelps getting up with the gun, he fired. When he saw Tomeny putting one hand back as if to draw a gun, he fired again.
The jury had to decide which story to believe about events that day in February 2002. Butler described stopping a pickup that aroused his suspicions by driving around the area with one man in the truck bed despite cold weather. When the driver noticed his patrol car, he said it took evasive action by turning off N.C. 705 to head up Howard's Mill Road and then, as he followed, turning off yet again on a road that only led back to 705.
Phelps and Leiber told different stories from Butler. In their accounts, Butler shot Tomeny first and then Phelps. They said his pepper spray blinded the soldier, who was swearing and screaming from the pain. Butler testified that his pepper spray missed, because Tomeny turned his head away.
The defense rested its case Tuesday morning, then Phelps took the stand for a brief rebuttal. Butler had described Phelps as pretending to sleep in the truck bed with his eyes closed during the time he tussled with Tomeny over the pack before he gave up and let him examine it, according to Butler's testimony. Phelps could not have seen him open the bag halfway and see the guns, since his eyes were closed, Butler had said.
"No, they weren't," Phelps testified. "The entire thing happened five feet in front of me. Butler never took possession of the bag. Tallas never gave him the bag."
Robin Sage has been conducted for more than four decades in a number of North Carolina counties, including Moore. Future Special Forces soldiers conduct a mock infiltration of an imaginary country called Pineland. They are instructed to regard law enforcement officers they encounter as enemy agents controlled by OPFOR, the opposing force they are helping Pinelanders fight off.
Attorneys for Butler and the Sheriff's Office did not indicate whether they would appeal.
Contact John Chappell at (910) 783-5841 or by e-mail at email@example.com.
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