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County News
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September 03, 2010
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| 2/14/2007 3:03:00 PM | Email this article • Print this article |
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| Steve Gilmore, left, confers with private investigator John Mann at Monday's hearing. |
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Appeal expected in murder case
Prosecutors discount double jeopardy claim
Lilian Carmer
A hearing held Monday on Steve "Happy" Gilmore's motion brought up the legal issues of double jeopardy and the limits of topics on which former jurors can testify.
Gilmore, 53, of Commiskey is accused of murder in connection with the death of his former stepfather, Billy Akers, 59, on Feb. 21, 2005.
Akers was formerly married to Gilmore's mother, Beverly Akers, and the shooting took place at her home near Commiskey. Beverly Akers was ill and not at home at the time.
Billy Akers allegedly went to the residence to confront Gilmore after he and the defendant had words over a water line in a telephone conversation. Gilmore, whose home is next door to his mother's, had been staying at his mother's place to take care of her two dogs.
From the beginning, Gilmore has claimed the shooting was self defense.
In the first trial, Gilmore admitted he fired two shots one-handed with a .22-caliber rifle in an attempt to scare Akers away after Akers reportedly was forcing his way into the house where Gilmore was. The first shot hit at the corner of the door, the second one hit Akers in the back of his shoulder. The bullet hit a vital spot and, according to testimony by a pathologist, Akers died within seconds.
The jury in Gilmore's first trial in August 2005 was unable to reach a unanimous decision after several hours of deliberation on a reckless homicide charge, the lesser charge given them as an option with the murder charge, resulting in a hung jury.
While the jury was considering Gilmore's fate, all of its members agreed that the defendant was not guilty of murder, according to the jury foreman, Robert Kennedy, in a statement to this newspaper following the August 2005 trial.
This is the crux of argument to dismiss the murder charge. However, the panel of jurors never completed the verdict form indicating Gilmore was not guilty of murder.
In November 2005, Jennings County Prosecutor Gary Smith requested that Gilmore be brought to trial on murder charges again. The new trial is set for March 1.
Before the first witness was called at Monday's hearing, Smith said, "I don't believe a juror can testify (as to their deliberations)," citing it would be contrary to Indiana law.
Indiana Rule 606, which Smith used as a basis, states the only topics jurors may testify to are drug or alcohol use by any juror, on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.
Robert Kirkham, who served on the murder trial jury, was the first witness for the defense. Gilmore's attorney, Mark Wynn, asked Kennedy about the unanimous decision on the murder charge. Immediately, Smith objected.
"This is a novel issue," Wynn said. "I believe the decision was unanimous (not guilty of murder) and the jury went on to consider the lesser included charge (reckless homicide).
Wynn stated it would be double jeopardy for Gilmore if he is retried, and that it is "paramount the jurors be allowed to make a record."
Smith argued, "To enter the process (testimony by a juror about deliberations) is very dangerous."
The judge sustained Smith's objection and did not permit Kirkham or other jurors who had also been summoned to testify.
John H. Mann, a former state police officer and now a private investigator, was the only other person to take the witness stand for the defense.
Mann served all the summonses to the jurors and stated he asked them about their deliberations.
"All 12 were unanimous," he said, as he noted their comments that Gilmore was not guilty of murder.
"Two forms were submitted," Webster said. "Neither was signed or documented in the file."
"Double jeopardy outweighs any other consideration," Wynn said.
Chief Deputy Prosecutor Drew Dickerson countered, "The jury deadlocked and did not reach a verdict. We are entitled to try him (Gilmore) again."
"The court's decision will be far reaching on both sides," Webster said.
The judge explained there are serious concerns to all if former jurors can be brought into trial. Each side may seek an interlocutory appeal if they disagree. If either does, the trial will be delayed with the delay being charged to Gilmore on his motion to dismiss.
When an appeal is filed, the other side has 15 days to file a response. The Indiana Court of Appeals will decide whether or not to consider the appeal.
"If it (the appellate court) doesn't, we will be right back to where we are today," Webster said.
Both the prosecution and defense will be submitting information to support their reasoning to the court by Monday, Feb. 19. Webster is expected to make his ruling later in the week.
Only the motion to dismiss was heard Monday. Gilmore has also filed for a change of venue from Jennings County, which will be heard at a later time. He claims he cannot get a fair trial here because of publicity, speculations as to his character and disclosures of inadmissible evidence.
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