By MELINDA WILLIAMS
Although no one testified to actually seeing a Draper man fire a shot in the direction of Virginia Church Furniture last February, a felony charge of discharging a firearm at an occupied building was certified to a grand jury Tuesday.
Following an approximately four-hour preliminary hearing and trial in Pulaski County General District Court, Timothy Dean Thompson, 62, was acquitted of two misdemeanor charges, convicted of two others and had two felonies certified to a grand jury. Defense attorney Everett P. Shockley notified the court of intentions to appeal the two convictions.
In addition to the shooting charge, also certified was a charge of possession of untaxed alcoholic beverages while in possession of a firearm. The court dismissed charges of destruction of personal property and discharging a firearm within the town limits, but convicted Thompson of two counts of possession of untaxed alcoholic beverages.
Prosecutors allege Thompson fired a shot at a truck belonging to Don Beverly Jr., his business partner’s son, while it was parked in front of Virginia Church Furniture on First Street N.W. Feb. 16. The liquor charges stemmed from items seized when Thompson was arrested and during a subsequent search of his residence.
Beverly testified Tuesday that he had only been inside the church furniture business a short time when he heard what sounded like a shot. After having a conversation with his brother, he went outside and discovered his truck had been shot.
Beverly said he never saw who fired the shot, but two of his employees told him Thompson was responsible. He said he called police and reported what he had been told.
Neither of the employees work at the church furniture business now due to “hard times,” Beverly told Shockley.
On cross-examination, Beverly denied Shockley’s suggestion that he had tried to pressure the employees into blaming Thompson for firing the shot. “I didn’t know it was” Thompson, Beverly testified.
Joey O’Dell, one of the employees Beverly referenced, said he was helping to unload a truck when he heard something that sounded like a firecracker. He acknowledged seeing a red pickup truck passing by the business within seconds of the noise, but he denied having any knowledge of who owned the truck, who was driving it or even how many people were inside.
O’Dell denied ever telling anyone he saw Thompson fire the shot and he also denied that Beverly ever tried to pressure him into saying it was Thompson.
According to testimony, officers Paul Akers and Greg Quesenberry investigated the scene and collected evidence, then spoke with Thompson later that day. Both testified Thompson was handcuffed and under arrest at the time of their interviews with him. They said Thompson acknowledged driving by the business that morning, but denied firing a shot.
Shockley twice objected to either officer relating anything Thompson might have told them, arguing that the prosecution had failed to show police had any probable cause to arrest Thompson in the first place. He cited the lack of testimony that anyone had witnessed Thompson fire the shot and said Thompson was clearly detained.
“Seizure occurs when the police grab you and hold onto you,” said Shockley.
Assistant Commonwealth’s Attorney Justin Griffith countered that Thompson wasn’t officially under arrest because no warrants had been obtained. He said the officers were still in the process of conducting the investigation to determine whether Thompson should be charged and assured the court he would show plenty of probable cause for an arrest later in the hearing.
The judge overruled both of Shockley’s objections at that point in the hearing.
Pulaski Police Department Investigator Danny Grimm said he responded to Dublin Post Office after learning a Dublin police officer had Thompson under arrest at that location. He said he received the call of shots fired just after 9 a.m., but he didn’t make note of what time he arrived at the post office.
The investigator said a rifle was in the back seat of the cab on Thompson’s truck, in plain view, and he found a “fully loaded” .44-caliber revolver containing one “shot shell” in the center console when executing a search warrant on the vehicle. Other items found inside the truck included an empty .44-caliber cartridge case in the passenger floorboard and two fully loaded “speed loaders” and rounds of .44-caliber ammunition in the back seat behind the driver seat.
Grimm said he used a key on the truck keychain to unlock a toolbox on the back of the truck and found a bourbon bottle that contained a clear liquid. The cap on the bottle was from a soft drink bottle, he added. Shockley stipulated, for purposes of Tuesday’s hearing only, that all clear liquids seized in the case were untaxed liquor, commonly called moonshine.
According to Grimm, he performed gunshot residue tests on the inside and outside of the driver and passenger doors of Thompson’s truck and sent them to a lab for analysis.
A gunshot residue expert later testified that the inside driver side door tested positive for “primer residue,” which causes a cartridge to fire. He said the passenger side tests were not analyzed once the driver side test was positive due to the fact the residue would have been dispersed throughout the vehicle. He did say, however, that the fact residue was found on the driver side door does not necessarily mean that was the side of the truck where a firearm was discharged.
Grimm also testified to finding a number of items in Thompson’s residence when a search warrant was executed there. He said 51 glass containers and six plastic milk jugs of clear liquid were found in the area of a wet bar. A box of .44-caliber bullets was found in a nightstand.
A firearms expert, Richard Van Roberts, testified that the empty cartridge found in the passenger floorboard was fired by the revolver found in the console. He also said a “wad” from a cartridge and pieces of a blue cartridge, which Quesenberry collected in the area of the shooting, were “consistent” with cartridges found inside Thompson’s truck.
Van Roberts said he “swabbed” the revolver’s barrel to see if he could find any traces of blue residue from the cartridge, but he didn’t find any. He said he wouldn’t necessarily expect to find residue because the “wad” could have wiped it away as it traveled down the barrel, but he acknowledged he doesn’t have much experience with revolvers that are capable of firing “shot cartridges,” such as the one found in Thompson’s truck.
According to testimony, the blue cartridges are not specific to .44-caliber firearms. Van Roberts said the cartridges are available in about half a dozen calibers.
At the end of the Commonwealth’s case, Shockley took issue with the fact Grimm was unable to say what time he responded to the post office, and that Akers and Quesenberry didn’t ask Thompson what time he had driven by the church furniture business. He argued that police have no way of knowing who else might have been in or operated the truck that day before Thompson was spotted at the post office.
As for what was found at the residence, he said, there is no evidence when Thompson had last been there – whether it be that day or a month earlier. He also pointed out that no fingerprint analysis was performed to determine whether Thompson had ever handled any of the containers.
Citing a 1979 court ruling, Shockley said the court erred in failing to sustain his objections regarding probable cause for arresting Thompson. He said the prosecution has the burden of proving the defendant was lawfully arrested, but the Dublin officer who actually made the arrest didn’t testify.
“I expected a witness to say ‘I arrested him because …,’” said Shockley. He added that it is “insane” to say police don’t have to have probable cause to make an arrest.
“You can’t just go grab somebody and not have” cause to do so, he added.
Griffith said the probable cause issue should have been address in a pre-trial motion, so it is a moot point.
Shockley also made a motion to strike all of the Commonwealth’s evidence and dismiss the charges for lack of evidence. The judge granted his motion with regards to the two misdemeanors that were dismissed.
While the judge acquitted Thompson of the misdemeanor shooting charges, which required proof beyond a reasonable doubt, he certified the felony shooting charge, which merely required the prosecution show probable cause that the defendant committed the crime.
When the felonies are tried in circuit court, the prosecution will have the burden of proving beyond a reasonable doubt that Thompson fired the shot that allegedly struck the church furniture building.
On the two misdemeanor convictions, Thompson received a suspended 30-day sentence on one count and six-month sentence, with five months suspended, on the other count. He also was fined $2,000 and placed on 12 months probation.
Thompson’s bond was continued pending appeal of his convictions.