Pubdate: Mon, 28 Dec 2009 Source: Toccoa Record, The (GA) Copyright: 2009 The Toccoa Record Contact: https://secure.townnews.com/thetoccoarecord.com/forms/letters.php Website: http://www.thetoccoarecord.com/ Details: http://www.mapinc.org/media/5073 Referenced: GBI Findings Outlined http://www.mapinc.org/drugnews/v09.n1160.a10.html Bookmark: http://www.mapinc.org/people/Jonathan+Ayers (Rev. Jonathan Ayers) DA DANNY PORTER'S LETTER TO BRIAN RICKMAN (This is a letter from Gwinnett County DA Daniel J. Porter to Mountain Judicial DA Brian Rickman.) At your request, I have reviewed the GBI investigation of the shooting incident which occurred on Sept. 1, 2009. In that incident, Jonathan Ayers was fatally shot by a member of the Mountain Judicial NCIS team during the course of a drug investigation. This letter contains my analysis of the evidence presented to me. I was provided with a complete copy of the GBI investigative file including, but not limited to, the narrative of Special Agent Megan Miller, witness statements, scientific reports, the autopsy report, medical records, photographs and surveillance videos. I have read the entire report, watched or listened to each video and DVD, and examined each photograph and diagram. I have not personally gone to, or examined any of the relevant locations nor have I personally examined any of the items of physical evidence. During the course of my evaluation, I have applied my experience as a prosecutor (more than 28 years), my experience in evaluating officer involved shootings (approximately 20 since 1985) and my general knowledge of police training, operations, and tactics particularly in the area of drug enforcement. In determining the scope of my evaluation, I also decided that the fact that Jonathan Ayers was a pastor was not a relevant factor in the evaluation. I made this decision because the facts show without contradiction that Jonathan Ayers was at the Shell station when he was approached by Agents Harrison and Oxneer. The question that must be answered is whether or not there was a valid legal reason for the officers to approach Ayers and, if necessary, detain him. Ayers occupation or his reason for being in that part of Toccoa has very little to do with this analysis. Summary of Facts This is a brief summary of the facts to provide a context for the legal discussion which follows. It is not meant to be an exhaustive review nor does it contain all of the facts upon which my opinions are based. On Sept. 1, 2009, members of the Mountain Judicial NCIS team were conducting a drug investigation in Toccoa, Georgia. This investigation consisted of making a crack cocaine purchase from Kayla Barrett with the eventual purpose of identifying Barrett's supplier. Agent Oxner was acting in an undercover capacity to purchase the drugs. Agent Harrison was part of the surveillance or "cover" team. The transaction took place at Kayla Barret's residence, the Relax Inn. At the time of the transaction Kayla Barrett could not provide the agreed upon amount of cocaine and promised delivery by 4:30 that afternoon (This conversation was recorded). Barrett and Oxner then walked from the Relax Inn to an Exxon station where Barrett purchased cigarettes. After this purchase Oxner and Barrett began to walk back to the Relax Inn. While enroute to the Relax Inn, Barrett approached a red or burgundy Honda Civic which was parked on the street. The "cover" team observed wht white male in the car hand money to Barrett. Oxner continued walking to the motel when Barrett approached the Civic. When Barrett returned to the motel room Oxner informed her he would return at 4:30 to get additional cocaine. After Oxner left, a decision was made to try to locate the burgundy Civic and the described white male driving it to determine whether or not the car or the person were involved in the drug transaction or were Kayla Barrett's supplier. Agent Oxner and Agent Harrison were riding in an undercover (unmarked) vehicle when a red/burgundy Civic was seen approaching the Shell station located at the corner of Broad Street and Currahee Street. Agent Harrison positively identified the vehicle as the Honda Civic he had seen earlier. Harrison also identified the driver as the white male who had previously been seen with Kayla Barrett. After an attempt to place the Civic under surveillance, the car was observed parked at the Shell station. The decision was made to approach the Civic and question the driver. As the agents approached the Civic, it began to back out of the parking space. Agent Harrison got out of the truck he was riding in and approached the Civic from the front. Agent Oxner got out of the same truck and approached the Civic from the rear. Both were dressed in plain clothes with their badges hanging on chains around their necks. According to Agent Harrison, he identified himself as a police officer whereupon the Civic rapidly backed up. Agent Oxner was forced to jump out of the way by banging his hands on the trunk and pushing his body away. Based on the noise, Agent Harrison stated that he believed Oxner had been struck by the Civic. The Civic accelerated toward Harrison and he fired twice striking the driver Jonathan Ayers. Ayers continued to drive the car for a short distance on Broad Street before striking a curb. Ayers was transported from the scene and later died of his wounds. Legal Analysis: The first legal question that must be considered is whether or not the NCIS agents were justified in their decision to approach Jonathan Ayers and his vehicle. In order to detain an individual, the police must have at least an articulable suspicion that the individual is involved, about to be involved or has been involved in the commission of a crime. Here, the agents had participated in an undercover buy of cocaine from Kayla Barrett in which they were "shorted". Barrett promised to deliver additional cocaine later in the day. The agents also observed Barrett approach the vehicle of Jonathan Ayers, speak to him and receive money from him. It is my opinion that the agents had sufficient articulable suspicion to believe that Jonathan Ayers met with Barrett for the purpose of buying or delivering drugs for them to conduct an investigative stop of the Honda Civic and an investigative detention of Jonathan Ayers. The second legal question is whether or not any criminal charges should be brought against Agent Harrison or any other member of the Mountain Circuit NCIS team in the death of Jonathan Ayers. In answering this question, I considered homicide statutes in the Official Code of Georgia and their application to this case. My conclusions are as follows: Murder (O.C.G.A. Section 16-5-1) In order to sustain a charge of malice murder, the State must prove that the defendant acted with "malice aforethought" which is the intention to unlawfully take the life of another. Under the facts of this case, while it is clear that Agent Harrison deliberately fired his weapon, there is no evidence of an intent to unlawfully kill Jonathan Ayers. Murder can also be committed by causing a death during the commission of a felony. There is no evidence in this case that any law enforcement agent was in the commission of a felony when Jonathan Ayers was killed. Voluntary Manslaughter (O.C.G.A. Section 16-5-2) Voluntary manslaughter is the intentional killing of another as result of a "sudden, violent and irresistible passion resulting from serious provocation." Under the facts of this case there is no evidence of either passion or provocation which would justify or sustain a criminal charge. Involuntary Mansalughter (Felon) (O.C.G.A. Section 16-5-3a) Involunatry manslaughter (felony) is when a person causes the death of another during the commission of an unlawful act other than a felony. It is my opinion that no police agent in this case was involved in the commission of a misdemeanor (unlawful act other than a felony) during this incident, therefore, the evidence does not support this charge. Involuntary Manslaughter (Misdemeanor) (O.C.G.A. Section 16--53b) Involuntary manslaughter (misdemeanor) is when a person causes the death of another by the commission of a lawful act in an unlawful manner. In other words by the commission of an act which would be otherwise lawful but with a reckless disregard for the safety of others. Since I have previously opined that the agents had sufficient articulable suspicion to believe that Jonathan Ayers may have been involved in criminal activity to stop and detain him, clearly it is my opinion that their approach was lawful. However, there are certain aspects of the case which are of concern when making the decision as to whether or not Agent Harrison or others conducted a lawful act in an unlawful manner. What follows is a list of these aspects: There is no evidence in the file that Toccoa Police Department or the Stephens County Sheriff's Department were aware of the NCIS operation in Toccoa. There is no evidence in the file as to whether or not NCIS agents had access to jackets or vests which would clearly identify them as police officers. There is no evidence in the file that if the agents had access to these identifiers, whether a choice was made not to use them. There is no evidence in the file as to whether or not alternative approaches to the Honda Civic were considered i.e. have a uniform car respond before the approach or conduct a pull over after the car left the Shell station. The tactical decision to approach a suspect about whom so little was known in a crowded gas station/convenience store is questionable at best. Without the answers to these questions, it is virtually impossible to make a judgment as to whether the evidence would support a criminal charge in this case. Also, until these questions are answered, no decision can be made as to the identity of the persons charged. I am specifically not reaching the conclusion that criminal charges are warranted in this matter however, the only way to find out is to present the matter to a Grand Jury. Conclusion My inquiry in this matter was limited only to the question of possible criminal liability. It is not appropriate for me to comment upon department policy violations or possible civil liability. My recommendation is that the facts of this case be presented to a Grand Jury pursuant to their statutory powers to inquire into any aspect of the operation of county government. The Grand Jury could then make a recommendation regarding the possibility of criminal charges and individual criminal liability. Thank you for the opportunity to assist you in this matter and if you have any questions, feel free to call me. - --- MAP posted-by: Richard Lake