A lawyer for a former East Point police officer on Wednesday told the Georgia Supreme Court her client was wrongly convicted of murder for repeatedly tasing a handcuffed suspect.
Former Sgt. Marcus Eberhart is serving a life sentence for the April 11, 2014, killing of Gregory Lewis Towns Jr. The murder conviction was a rare occurrence in Georgia where district attorneys have struggled to obtain indictments in the deaths of suspects at the hands of police.
Eberhart’s lawyer, Sandra Michaels, told justices that the Taser used by her client was in a mode where it was “specifically designed not to be inherently dangerous.” Its only purpose was to cause pain to get Towns, 24, to comply with officers’ orders, not to cause him serious harm, she said.
For this reason, Michaels argued, Eberhart should not have been convicted of felony murder and the underlying felony of aggravated assault. Under Georgia law, aggravated assault is the use of a deadly weapon or an object that is likely to or actually does result in serious bodily injury.
Eberhart’s Taser was in “drive-stun” mode and emitted two to three volts of electricity — “less than a night light,” Michaels said.
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But a number of justices expressed skepticism with Michaels’ argument and noted that a Fulton County jury found that Eberhart’s use of the Taser against Towns constituted an aggravated assault.
For example, Justice Michael Boggs said, there was testimony at trial by two doctors who said the pain caused by the Taser accelerated or contributed to Towns’ death.
The incident occurred after police responded to a domestic disturbance call at the apartment of Towns’ girlfriend. When one officer placed his hand on Towns’ forearm to handcuff him, Towns took off running into the woods.
After the 6-foot-6, 281-pound Towns tripped, an officer caught up to him, handcuffed him and called for backup. The officer also called for an ambulance.
Eberhart, who was headed to the scene, heard the radio call for the ambulance and canceled it, according to testimony. Officers then told Towns to get up and walk out of the woods, but Towns, saying he was too tired, stumbled and fell.
When Eberhart arrived, he told Cpl. Howard Weems Jr., “If he don’t want to get up, tase his (expletive),” witnesses said.
When Towns tried to get up but collapsed again, Weems, applied the Taser on Towns' stomach. Eberhart then applied his Taser on Towns as well. (Weems, who was also charged with Towns' murder and went to trial with Eberhart, was convicted of involuntary manslaughter.)
By the time paramedics arrived at the scene, Towns’ heart had stopped beating. He was pronounced dead at an emergency room.
A medical examiner found that physical exertion and the shocks from the Tasers contributed to the death of Towns, who suffered from hypertension and obesity and had sickle cell trait.
Michaels, Eberhart’s lawyer, noted that her client didn’t know of Towns’ condition.
But Justice David Nahmias said that was no excuse. “You take your victims as they come,” he said.
Much of the arguments centered around whether pain, in and of itself, can be a “serious bodily injury” under Georgia’s aggravated assault statute.
Fulton County Assistant District Attorney McDonald Wakeford said in this case it was.
“It contributed to (Towns’) death,” he said. “The pain itself exacerbated pre-existing conditions.”
A ruling is expected in the coming months.
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