By Tricia Bishop, The Baltimore Sun
8:20 PM EDT, May 31, 2011
Two Baltimore police sergeants are prepared to testify that a colleague, Gahiji Tshamba, appeared to be "under the influence of alcohol" after he unloaded his service weapon into an unarmed Marine last year outside a Mount Vernon bar, prosecutors said in court Tuesday.
Tshamba, who was off-duty at the time of the incident, is charged with murder in the shooting death of Tyrone Brown, 32, who was struck a dozen times in the chest and groin. His trial by judge — rather than jury — is set to begin Wednesday in Baltimore Circuit Court.
At issue is whether Tshamba, a 15-year city police veteran with a history of getting into trouble on the job, followed his law enforcement training when he fired his gun in the early morning of June 5, 2010.
Tshamba's lawyers say their client — who's at least 6 inches shorter than Brown and 80 pounds lighter, according to court and medical records — was acting in self-defense and that the victim, who had a blood-alcohol level of more than twice the legal limit, was the aggressor.
But prosecutors say that Tshamba, 37, was intoxicated after a night of club hopping, irrational and out of control, and overreacted after Brown drunkenly grabbed the behind of Tshamba's female companion.
Tshamba refused to take a Breathalyzer test after the shooting, having been told, his attorneys said, to wait until a union officer showed up to counsel him. Assistant State's Attorney Kevin Wiggins suggested that the refusal showed that the officer had been drinking.
"The defense expert is going to say that he was doing everything by the book, and we want to show that he was not," Wiggins said.
One sergeant told prosecutors that Tshamba appeared to have been drinking, the prosecutor said. And another sergeant, who drove Tshamba to Mercy Medical Center shortly after the shooting, said Tshamba's speech was slurred.
Wiggins said the driver characterized Tshamba as "glassy-eyed" but not "sloppy drunk." During the ride, Tshamba talked "about how hot the chicks were that were with him that night," said Wiggins, who noted that the assessment was offered "after shooting a man 12 times."
Defense attorneys James L. Rhodes and Adam Sean Cohen said they plan to raise credibility issues with the sergeants' accounts.
The prosecution and defense sparred during much of the hearing Tuesday morning, trying to convince Judge Edward R.K. Hargadon why certain evidence should be allowed or excluded at trial, though Tshamba had not yet said whether he wanted a judge or jury to decide his fate.
That put Hargadon in the seemingly awkward position of having to determine whether he would be able to consider certain matters. He decided that Tshamba's refusal to take a breath test was relevant to the trial, and therefore admissible, while a police training DVD was not.
Several questions remain, however, including whether a fact-finding field trip to the crime scene is necessary and whether Brown's mental health records, written in the five-year span between his return from the Iraq war and his death in Baltimore, will be considered as evidence.
The pages outline a history of substance abuse and violence.
Brown, who served in Iraq during tours in 2004 and 2005, was diagnosed with post-traumatic stress disorder after he returned to Baltimore. He told Veterans Affairs therapists that he drank to numb his feelings and smoked pot to relieve headaches from a war injury. He acknowledged having thrown a knife at his wife and having beaten his stepfather to a "bloody pulp."
"Mr. Brown's clinical profile suggests that he has a history of acting-out behavior, mostly notably involving alcohol abuse," one therapist wrote in Brown's medical file. "Responses suggest that the patient exhibits aggressive behavior, such as being easily provoked and not exhibiting complete control over his temper."
Defense attorney Rhodes said in an interview Tuesday that the records reveal "several very serious violent" episodes in Brown's past, indicating that he could have been the aggressor the night he died.
But Wiggins, who declined to be interviewed, suggested in court that the records show a private side of a pained man, who served his country as a Marine corporal. The records should not be public or part of the trial, Wiggins said, despite their having been subpoenaed by the defense and placed in Tshamba's court file in February.
The Baltimore Sun published a lengthy article based on the records in March.
Wiggins contended that they were privileged documents and should remain private because Brown's family did not expressly waive their protected status.
Hargadon said Brown's family, which has filed a $270 million civil suit against Tshamba, waived that privilege when they and their lawyer failed to respond to the initial subpoena. However, the judge has yet to rule on whether the records are admissible during the trial.
Defense attorney Cohen said in an interview that the threat of the records' introduction in court is enough to keep character witnesses from painting too rosy a picture of Brown. "It will keep them in check," he said.
Tshamba, too, has a history of problems, according to personnel records.
He received a letter of reprimand and a suspension after an off-duty incident in 2005 in which he was driving drunk and shot a man in the foot after an altercation. He was sanctioned in 2006 after crashing his car into a light pole while driving without insurance. And he was disciplined administratively in 1999 for "neglect of duty," according to police records.
On the morning of June 5, 2010, Tshamba had been hanging out with friends at the Red Maple lounge before heading toward Club Hippo after 1 a.m., according to a police report. The group reached the 900 block of Morton St., where Brown — who was with his sister and another woman — drunkenly grabbed Tshamba's female companion. The woman smacked Brown, who shoved her, and then Tshamba stepped in, according to witness accounts.
"At some point during this continued verbal altercation Officer Tshamba discharged his weapon," the police report states. "Mr. Brown was struck numerous times and fell to the ground."
Brown's two companions and two independent witnesses say Tshamba attacked, while Tshamba's three friends say Brown lunged at the officer and refused to follow an order to "get on the ground."
Brown, a father of two, was pronounced dead at Maryland Shock Trauma less than an hour later. Tshamba was taken to Mercy Medical Center, where he refused a Breathalyzer test.
Tshamba looked small in his suit Tuesday, his hands and feet shackled as he came and went from the courtroom.
Hours of argument passed before Tshamba announced that he wanted a court trial, rather than a trial by jury.
Rhodes said jurors cannot always separate fact from sentiment the way judges can and that Tshamba wants a fair trial.
"I expect there to be a great deal of emotion in this trial," Rhodes said.
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