NOT GUILTY of involuntary manslaughter? Why would he want to shoot the cow? Just because it was loose? Sounds like a heartless hot-head to me that should have been prosecuted to the fullest extent...
Jury delivers split verdict in trial of former Animal Control Officer
The Floyd Press: News >
Thu Feb 26, 2009 - 10:28 AM
By Doug Thompson
A jury of eight women and four men Wednesday acquitted former Floyd County animal control officer Garland “Buckey” Nester of felony involuntary manslaughter but found him guilty of a misdemeanor charge of reckless discharge of a firearm in the shooting death of 75-year-old Connor Grove Road resident Paul Belcher in May 2008.
The verdict came after an hour and 38 minutes of deliberations at the close of a two-day trial in Floyd County Circuit Court. The jury was scheduled to hear arguments later Wednesday in the sentencing phase of the trial to determine punishment on the firearms charge.
The jury’s decision came after an emotional closing argument by Special Prosecutor Clifford Hapgood, who contended Nester fired his weapon in anger at a cow that escaped more than once from rented pastureland.
“This was not a careful and calm assassination of a cow,” Hapgood said of the shooting of an escaped animal where one of the bullets went astray and killed Belcher on May 29, 2008 near the Blue Ridge Parkway.
Hapgood contended Nester, who chased the cow twice on that day and failed to herd the animal back to a rented pasture area, lost his temper and fired in anger without regard to the circumstances. He compared Nester’s actions to “Buck fever,” a situation where hunters shoot without regard to consequences.
“You want to kill that deer. You want to kill that that cow. You don’t care about anything else,” Hapgood said. “The cow is going down.”
David Damico, Nester’s Roanoke-based defense attorney, told the jury in closing arguments that the state had failed to offer any evidence that Nester lost his temper or fired in anger.
“Where’s the rage?” Damico asked. “Where’s the anger?”
Hapgood, the Commonwealth’s Attorney of Franklin County, wrapped up his case against Nester late Wednesday morning in the trial’s second day. Damico chose not to offer any witnesses for the defense, moving to dismiss the charges but Judge Ray W. Grubbs denied the motion.
Nester did not take the stand.
In his opening argument, Tuesday, Damico compared the series of events to the famous 1991 collision of weather fronts off the coast of Newfoundland that created a massive storm and led to a best-selling book and popular movie about the events and tragic deaths of fishermen and a Coast Guard rescue team member.
“Like that perfect storm that led to tragic consequences, the events on May 29, 2008, were a series of events that led to a tragic death,” Damico told the jury in his opening arguments.
Hapgood, in his opening statement, said the central issue of the case centered on whether or not Nester’s actions were reckless and if the 45-year-old former county official was in control of his emotions after spending most of an hour trying to coax a recalcitrant cow back to some rented pasture land adjacent to his Connor Grove home near the Blue Ridge Parkway. He said Nester’s “gross negligence” and “callous disregard for human life” resulted in Belcher’s “tragic death.”
“On this particular day, the animal control officer not only was not controlling animals, he was not controlling himself. This death needs to be punished,” Hapgood told the jury.
Belcher died from one of four shots Nester fired at the cow, which had escaped from the pasture more than once. After several unsuccessful attempts to force the 850-pound Holstein cow back to the pasture, Nester fired two shots at the animal, reloaded his 357-magnum semi-automatic pistol, and fired two more.
Jean Belcher testified that her husband heard the first two shots and drove his pickup truck to down to the road to see if he could help. Belcher had called the Floyd County Sheriff’s Department a day earlier to report that cows were escaping from Nester’s rented pasture.
Mrs. Belcher said she heard the other shots and then heard her husband scream “I’ve been shot.” Virginia State Police said Belcher was hit after taking three steps from his pickup.
A State Police report concluded three of the four shots hit the animal and one killed it. A veterinarian found two bullets in the cow and evidence of a third shot that grazed a leg. Damico, however, contended all four shots struck the animal and a third shot would have been found in the animal’s neck if the vet had only looked. He claimed the bullet that grazed the leg ricocheted and struck Belcher, 190 feet away and out of Nester’s line of sight.
The vet concluded that the one-centimeter puncture wound in the neck was not caused by a bullet and did not probe for one. Amy Tharp, assistant chief medical examiner for Western Virginia, testified that the bullet that killed Belcher did not have the characteristics of a slug that struck another object before hitting him the abdomen.
Hapgood attempted to build the case that the fourth bullet went astray because Nester fired out of anger without aiming. He tried to introduce testimony from Belcher’s brother, who Hapgood said would have testified that Nester’s son Travis said immediately after the event that his father was “crazy and shooting at everything” but Damico objected, saying the testimony was hearsay. Grubbs agreed and also refused to allow specic parts of testimony from Janet Keith, a former teacher of the son. Hapgood said she would have quoted the young Nester as saying his father “got mad” and fired at the cow.
Grubbs heard the arguments with the jury out of the courtroom, ruled out the testimony that characterized Nester as “crazy” or “mad” and allowed the witnesses to only testify that that Travis Nester said his father shot Belcher.
Jury selection for the trial took three hours as Grubbs and the two attorneys questioned 27 potential jurors before agreeing on the final 12. Hapgood did not complete his case before Grubbs adjourned for the day at 5:10 p.m. The prosecutor is expected finish up on Wednesday.
Before jury selection, Damico argued the case should be moved out of the county, saying the jury pool was tainted by excessive pre-trial publicity from newspapers, television and a local blog.
Damico cited what he called “inflammatory” reporting. Grubbs decided to go through the jury selection process before ruling on the motion and only two of the 27 potential jurors said they read the blog in question and less than half said they had read about the case in newspapers or saw a television report. Grubbs denied the motion.