Jury: Police shooting justifiable
Fayette County Coroner’s jurors Monday ruled the Christmas Eve shooting death of 12-year-old Michael Ellerbe was a justifiable homicide. Trooper Samuel Nassan, who fired the fatal shot, acted in a reasonable manner and in accordance with Pennsylvania laws on the use of deadly force, according to the ruling.
The panel of five men and one woman, all white, listened to eight and a half hours of testimony before returning their verdict in about 40 minutes.
Fayette County District Attorney Nancy D. Vernon, who sat through the entire proceeding, called the inquest “thought-provoking and fact finding.”
She said she plans to review all police evidence and will make a decision on whether or not charges are warranted.
“I think a quick resolution for the family will be the best decision,” said Vernon.
U.S. Attorney Mary Beth Buchanan did not attend the inquest, however, a representative of her office did and left without comment.
Buchanan and the FBI are heading a federal probe to ensure there were no civil rights violations.
Several witnesses, most state police who conducted the internal affairs investigation into Ellerbe’s death, testified throughout the day. The most compelling testimony, however, came from Nassan, who choked up on the stand as he recounted going over to Ellerbe after he shot him, laboring under the belief that the boy shot his partner, trooper Juan Curry. The men were chasing Ellerbe in Uniontown’s East End after he wrecked a stolen Ford Bronco and then fled from them on foot.
“I rolled him over and I cradled his head in my left arm,” said Nassan. “I was trying to find a hole so I could stick my finger in and (try to stop the blood).”
Nassan testified that he fired on Ellerbe after he saw Curry go over a fence in pursuit of the boy and heard a gunshot. Nassan, a rookie trooper but veteran military policeman, said he watched Curry fall to the ground from the fence and believed he had been shot.
“(Curry) rolled over. His face was pale … his eyes were bigger than I had ever seen them. I just knew he had been shot. I just knew it,” testified Nassan, noting that Ellerbe had his hand in his right pants pocket and was running at an angle, arousing suspicion that he may have a weapon.
He responded by firing at Ellerbe. The shot hit the 5-foot-2, 110-pound boy in the back and punctured his heart before exiting his chest, according to Allegheny County Coroner Dr. Cyril H. Wecht, who conducted the autopsy of Ellerbe.
But Curry had not been shot. His gun discharged as he jumped the fence at 61 Cleveland Ave. in pursuit of Ellerbe.
Curry testified he did not have his finger on the trigger, but testified he did have his weapon drawn. Police issue guns, according to trooper Robert Leibhart, that are double action. That means they do not have a hammer that is manually cocked to fire and require about six pounds of pressure to do so.
Although no one could clearly explain how Curry’s weapon was fired, his attorney, William Manifesto, suggested that the trigger may have gotten caught on the top of the fence.
Robert Swartzwelder, an independent expert on deadly force brought in by the coroner’s office, testified that other explanations such as interlimb interaction could have caused the discharge. Interlimb interaction, said Swartz-welder, occurs when one hand grips something, in this case the 4-foot fence Curry was climbing, and the force is transferred to the other hand.
Swartzwelder also suggested that Curry may have lost his grip on the .40-caliber Smith and Wesson and accidentally squeezed the trigger.
Nassan said he and Curry were unintentional partners that day. Nassan had been driving an unmarked patrol unit, but an unrelated call needed a marked vehicle so he rode along with Curry. After that call was done, the troopers decided to look for the Ford Bronco that was reported stolen that morning.
They decided to drive to Lemon Wood Acres, where both Curry and Nassan testified stolen vehicles often turn up.
On their way through the city of Uniontown on Cleveland Avenue, they spotted the Bronco coming out of an alley. Curry testified he stopped the patrol car and Nassan got out, drawing his firearm and ordering the driver out of the vehicle.
The driver, both testified, put the vehicle in reverse and ran along the retaining wall of a house before hitting some bushes in the yard and then hitting a fence. Again, Nassan said he got out of the patrol car and ordered the driver out, but the driver ran.
The troopers gave chase, Nassan first, Curry following after he called in to say they had the SUV. Nassan said he was trying to cut the driver off when he took a different route that ended up to be a dead end.
So, said Nassan, he doubled back. By this time, Curry testified he too had his gun drawn, and Nassan shouted for him to “watch your back” because he noticed the driver’s hands going into his pocket.
The contents of Ellerbe’s pocket included Pokemon cards, a vial with unidentified red liquid and a pocket knife, according to testimony from Cpl. Gregory Keefer
The driver climbed a fence and Curry followed. His weapon discharged. Nassan fired a shot.
Trooper David Bell, who offered testimony from four unavailable witnesses, said that two teens who came outside after they heard the shots.
Theodore Martucci, 14, and his sister, Chelsea Martucci, 17, both told Bell that Nassan rolled Ellerbe over after he was shot and seemed surprised he was so young.
“I heard (Nassan) say, ‘Oh my god, you’re just a kid. Breathe,” Bell testified Chelsea Martucci related.
The Martuccis, from Georgia, were visiting family at the time and were not available to testify.
Swartzwelder, along with state police Sgt. Clifford Jobe Jr., testified that having their weapons drawn in pursuit of a felon was justifiable. Both also testified that Nassan reacted properly because he reasonably believed Curry had been shot.
“You talk about charging these men, but stand in the officer’s shoes at the moment he presses the trigger, not with 10 hours of hindsight,” said Swartzwelder.
Curry testified that he would have reacted the same as Nassan if their positions were reversed.
Although eight of the people interviewed by police said they heard two shots, four people indicated they heard three and two people heard one.
Police testified only two shell casings were recovered from the scene.