Marshall County Circuit Court Judge Robert Crigler has denied a request for a new trial for a man convicted on an assault charge because he displayed a pistol to a Lewisburg attorney's secretary at their office in February last year.
Gary Owen's lawyer, Lee Ofman, argued last Wednesday that Owen deserved another trial because the jury didn't consider the evidence; "Some were nodding off after going into the night" with the trial conducted in late December.
Assistant District Attorney General Eddie Barnard countered Ofman's point saying, "I don't remember anyone saying anything about a juror nodding off," so if a juror was inattentive the defense didn't object during the trial.
"About the only criticism I have is that the judge takes too many breaks," Barnard said, describing them as about once every 75 minutes.
As for Ofman's contention that 20-30 minutes of deliberations wasn't enough time to read jury instructions, Barnard said Crigler read them twice because of an overnight break in the trial.
After two court dates on the issue of sentencing, complete with debate between Barnard and Ofman, Crigler sentenced Owen on Feb. 23 to five years in prison on the assault charge stemming from Owen's behavior on Feb. 2, 2006 at the law offices of Jheri Beth Rich. Her secretary, Misty Worsham, filed charges against Owen after he displayed a pistol to her.
Ofman told Crigler on Wednesday last week that Owen was simply trying to show Worsham that the gun wasn't loaded.
Owen had been persistent in his request to see Rich and Worsham said the lawyer wasn't available.
Owen's behavior was a result of his addiction to pain medication, Ofman said, so what Owen did was not with any intention of doing wrong.
"It didn't matter whether it was voluntary," Ofman said, calling that argument "a fairly sophisticated defense" which the jury either didn't understand, or just didn't care to hear.
Ofman also claimed that he was tired as the trial went into the evening and that denied his client a fair trial because of a lack of adequate counsel.
If the jury returned with a guilty verdict on a lesser included offense of reckless endangerment, "then I'd be hard pressed" to argue jurors were inattentive, Ofman said, reasserting his claim they were tired and "the next day they were in no mood to be there."
Barnard said that while Ofman complained doctors prescribe pain medicine too often, doctors weren't on trial for assault, and acting out of character does not mean Owen was not aware enough to commit the offense.
"The case was well-tried and fought," Crigler said. "It was a simple case."
Crigler followed a standard pattern for judges' instructions to jurors and the fact that he read them twice could lead one to conclude that the jurors didn't have to read them before they started deliberating.
"I respectfully deny your motion for a new trial," Crigler told Ofman after having reviewed the nature of the offense of aggravated assault and fear in a victim.
Owen also faces a charge of harassment in connection with allegations arising from a phone call that some have seen as an attempt to influence the assault case. Pretrial motions in the harassment case are to be heard at 9 a.m. on April 11. Jury selection is to begin in that case on July 5. Two days are set aside for the trial.