Posted 11:22 pm Thursday, July 23, 2009
Jury Hears Testimony In Wrongful Death Lawsuit
By REGIS L. ROBERTS
Staff Writer
A Smith County jury could begin deliberations in a wrongful death lawsuit as early as today.
Staff Writer
A Smith County jury could begin deliberations in a wrongful death lawsuit as early as today.
The case stems from a February 2007, shooting in which a homeowner shot and killed a burglary suspect.
A Smith County grand jury failed to indict the homeowner, but family members have filed a wrongful death lawsuit in the case.
Terry Graham, the man whose home Joshua Chambers was allegedly burglarizing when he was shot by Graham, testified that he exercised reasonable action in defending himself and his property.
The deceased Chambers' ex-wife, Amanda Whitsell, brought the suit on behalf of their children Austin, now 14, and Elizabeth, now 10. Their case is being represented by Greg Porter and Charles Clark.
Graham's attorney, Tracy Crawford, made a motion to Judge Randall Rogers that "as a matter of law" the facts of the case showed that Graham acted with appropriate force in shooting Chambers and asked that a ruling in favor of Graham be awarded.
"I think if I were to grant it I'd be reversed in a heartbeat," Rogers said in his rejection of the motion.
Contention came from determining whether Chambers was trying to flee in his white Ford Taurus or trying to run Graham over. When Crawford asked Graham why he shot Chambers as he was driving away, Graham said, "I wanted him stopped; I wanted him arrested; and I wanted my property back."
Graham said when asked the same question later on, "I was afraid of my life and the life of my employee."
He was referring to Guy Osborn, whom Graham employed as a ranch hand on his property in Bullard.
Graham's and Osborn's testimony - Osborn's was played as a video deposition by the plaintiffs - differ in important ways highlighted by the plaintiffs to establish that Graham wrongfully killed Chambers.
Graham said Chambers' Taurus raced toward him, and he believed he was in danger of being run over.
Osborn, however, said Graham ran toward Chambers' car after Chambers got into it after running from the house.
When Graham noticed the strange car in his driveway, he called Osborn, asked him if he noticed the car, and instructed him to bring a gun to Graham's home. As Graham's ranch hand, Osborn lived in another house on Graham's property.
According to testimony, as Chambers ran to his car from Graham's house with a bag of property, Graham instructed Osborn to shoot him.
Asked in the video deposition by Porter why he did not shoot, Osborn said, "It didn't seem to be the thing to do," adding that he did not feel either he nor Graham were in danger at that point. He added that Chambers tried to avoid Graham and did not attempt to run him over.
Graham said that he was certain guns were in the duffle bag Chambers carried from the house.
Graham said a loaded and chambered pistol was on his bed and another pistol was in the nightstand, two items Graham were sure a burglar would steal.
Clark told Graham on several occasions there was no way to know if the bag of stolen items contained firearms, making Graham's judgment poor in shooting Chambers.
The two guns were found in the bag along with $10,000 cash, a digital camera, several watches and a bottle of Crown Royal.
Albert Rodriguez, a Department of Public Safety officer who instructs police and concealed handgun license trainees on accessing risks in using deadly force, said that Graham used correct judgment given the factors.
Rodriguez, who testified on behalf of the defense as a private consultant and not as a DPS official, said the totality of the situation - that Graham's house was being burglarized, the suspect was non-responsive to commands - could lead anyone to believe that their life was in danger.
He said Graham could not reasonably wait for Chambers to present a gun before acting.
The civil lawsuit claims Graham was "grossly negligent" in reacting to the Feb. 18, 2007, burglary.
Graham was previously no billed by a Smith County grand jury, which declined to indict him on criminal charges relating to Chambers' death.
The lawsuit seeks unspecified damages resulting from Chambers' death.
The jury is being asked to consider whether Graham exercised reasonable action in defending himself.
Today's proceedings are scheduled to begin at 8:15 a.m. in the Smith County Courthouse.
