Commonwealth’s Attorney Finds Use of Deadly Force Justified

Friday, May 20, 2011

Harvey L. Bryant, Commonwealth’s Attorney for the City of Virginia Beach, announced today that the Office has completed its investigation of the use of deadly force by three officers in the discharge of their weapons at Charleston Detron Newby on February 20, 2011 at approximately 4:39 a.m.   The shooting occurred on West Hastings Arch in the Lake Edward neighborhood. 

 

On February 20, 2011 at approximately 03:47 a.m., a 911 dispatcher received a call from a female who said the purpose of her call was “domestic” and within a few seconds said “I have to hang up now”, after which the line disconnected.  Based on that call, police units were sent to 723 Whitehall Lane.  Among the officers who responded were Officer M and Officer C, who arrived in separate units along with two other separate units.  At that address Mrs. Newby advised one of the officers that her husband, Charleston Detron Newby, had a gun and wanted to kill her.  However, questioning of Mrs. Newby failed to establish an offense for which Mr. Newby could be arrested at that time.  Because he was being boisterous and admitted to being drunk, at one point he was handcuffed and placed in the back of a patrol car while Mrs. Newby was being interviewed.   Mr. Newby got especially loud and agitated when he learned that his wife said he had a gun. He began to yell, “Baby you know that’s not true.  Come on now, baby” and words to that effect.  At one point he said to the officers, “If there’s a gun in there it belongs to her.”  (Newby’s prior felony convictions made it illegal for him to own or possess a firearm.  Such a charge would carry a mandatory minimum sentence of two years.  His possession of a firearm would also have been the basis for a violation of his probationary term, which could have resulted in the imposition of over 11 years of suspended penitentiary time.)  Mrs. Newby refused offers by the officers to escort her to the magistrate to obtain warrants in reference to a previous assault by Mr. Newby in which she said that her nose had been broken.  (A search of her SUV after the shooting revealed medical instructions for treating her broken nose.)  Based on their investigation, Mr. Newby was released from custody by Officer M.  He observed Mr. Newby walk away from his address down East Hastings Arch towards Lake Edward Drive.  There had been discussion with Mr. Newby that he would stay at either his mother’s house or a friend’s house nearby.  Officer M discussed with his sergeant obtaining a search warrant for the gun, but Mrs. Newby’s statements as to when she had last seen the gun varied over a three week period.  Therefore, the legally required “probable cause” that the gun was in the house at that time precluded a search warrant. 

 

Shortly after Mr. Newby was observed walking away, a white SUV was seen driving at a high rate of speed and making a right turn on to East Hastings Arch without stopping at the stop sign.  Mrs. Newby yelled to officers, “That’s him, that’s my truck.”  Two officers, one of whom was Officer M, began pursuing the vehicle while observing it running over curbs and accelerating at high speeds.  Newby also ran the red light at Baker Road and Newtown Road.  Mr. Newby was being pursued by marked police vehicles which had their lights and sirens on.   After crossing a median to turn left onto Hampshire Lane, and then turning right onto Baker Road, Newby drove over the curb such that Officer M thought Newby’s vehicle might flip over.  Newby ignored stop signs and red lights throughout the effort to stop him.  On two occasions, Newby came close to having collisions with vehicles being driven by citizens. Around the area of the intersection of Virginia Beach Boulevard and Witchduck Road Officer CA also became involved in the pursuit and was the second vehicle in the pursuit behind Officer M.  At two different locations during the pursuit other police units deployed spikes in an effort to disable Newby’s vehicle but in each case he managed to avoid the spikes and continued driving recklessly.  At a point Newby turned onto Independence Boulevard and was traveling at speeds estimated at between 95 and 100 miles per hour.  Mr. Newby continued to evade the police and eventually headed back into the Lake Edward neighborhood.  Officer C, who was part of the pursuit, stopped his car at an angle at the corner of an intersection of alleyways which run behind and between 5801 and 5823 West Hastings Arch.   Soon thereafter, Mr. Newby’s vehicle turned left into the alleyway between the buildings and crashed into the passenger side of Officer C’s police vehicle.  Officers M and CA, continuing their pursuit, were at the scene of the crash immediately. 

 

After the impact with his police car, Officer C quickly exited his vehicle.  He was aware that other police cars were at the scene.  He could hear sirens and saw their flashing lights.  As Officer C positioned himself at the rear passenger side of his vehicle, he observed Mr. Newby standing outside of his vehicle with his back to the driver’s door and facing the other police vehicles on the scene.  Officer C observed Mr. Newby facing away from him through Newby’s driver’s door window.   He observed Mr. Newby with a gun in his right hand and his hand extended in the direction of the other police cars which were just feet away.  He observed Newby thrusting the gun in the direction of the police cars at least twice.  He heard very low pops.  Based on what he observed, Officer C fired at Newby at least twice to protect the officers at whom he believed Newby was firing.  Realizing that he was in a precarious position should the officers at whom Newby appeared to be shooting return fire, Officer C went around the rear of his vehicle and crouched down so he wouldn’t be caught in a crossfire situation.

 

Officer M saw Newby crash into C’s police vehicle.  Officer M got out of his vehicle and observed Mr. Newby get out of his vehicle, turn toward him, and believed Newby was firing at him.  He had a clear view of Newby at that time and observed a cloud of smoke coming from where Newby was standing in the open door of his SUV.  Officer M heard a gunshot and saw a muzzle flash.  Officer M returned fire.  Within seconds, Officer CA’s vehicle rolled up to where Officer M was standing.  Officer CA’s vehicle came to rest against the rear bumper of Newby’s vehicle.  Officer CA’s vehicle had its lights and siren on (they remained on until after the shooting stopped).  Realizing that he was directly in Mr. Newby’s line of fire, Officer M utilized Officer CA’s vehicle as cover for his protection.  Officer M then jumped over a fence to the left of Officer CA’s vehicle and observed Mr. Newby jogging down the alley towards West Hastings Arch.  Officer M began to run through the fenced yard approximately parallel to Newby yelling “Stop, police, stop.”   As this was occurring Mr. Newby turned and looked at Officer M and brought his gun around toward Officer M.  Officer M yelled, “Drop it.  Drop the weapon. Drop the weapon,” and fired at Mr. Newby again.  He observed Mr. Newby drop to the ground.

 

Kneeling behind his vehicle as referenced above, Officer C also observed Mr. Newby running down the alleyway, with a gun in his right hand, turning towards his left (where Officer M would have been).  Officer C fired at Mr. Newby and observed him drop to the ground.  He observed that Mr. Newby was still moving, and also observed Officers M and CA running through the back yard on the other side of the fence to his left.  He heard both officers yelling at Newby, “Let me see your hands. Let me see your hands.”  Officer C was also yelling similar commands.  Mr. Newby was lying on his left side with his back towards the fence but was observed trying to roll over toward the fence.  While Mr. Newby was lying on his left side but continuing to move, Officer CA was yelling “Roll on your stomach; push your arms out to your side” two or three times.  The officers observed Mr. Newby put his right hand back to his chest area and roll from his left shoulder onto his back and start to bring his right hand back over.   At that point, Officer M fired at Mr. Newby again.  Immediately thereafter, Officer CA jumped the fence, ran to Mr. Newby, pulled his arms up over his head and turned Mr. Newby onto his back so that it could be determined if he still possessed a gun or other weapon.  Within seconds, Officer CA started CPR on Mr. Newby.  Supervisory police personnel arrived almost immediately as Officer CA continued CPR. 

 

A quick search of the area by responding officers located a handgun approximately 22 feet down the alley from Mr. Newby’s body in the direction in which he was running.   That .32 caliber five-shot revolver was determined to have four rounds in its cylinder.  It was determined by investigating officers that it had not been fired.  A written report from the Virginia Department of Forensic Science established that the revolver was mechanically operable and there were no misfires.  There were no comparable fingerprints found on the gun.  DNA testing of swabs from the gun were inconclusive.  In my experience, the lack of comparable fingerprints or conclusive DNA on firearms is not unusual.  The report of the DNA testing, dated May, 12, 2011, was delivered to me yesterday, May 18, 2011.  All three police weapons and all cartridge casings and bullets recovered from the scene, or recovered as a result of the autopsy were also submitted to the Virginia Department of Forensic Science.   Each of the three officers was firing department issued Glock Model 17 nine millimeter semi-automatic pistols.  Each officer fired his weapon multiple times.  Multiple rounds struck the SUV.

 

The Office of the Chief Medical Examiner for the Commonwealth of Virginia performed an autopsy on Mr. Newby.  That autopsy report states the cause of death to have been “gunshot wound to the abdomen through chest to head in addition to gunshot wound to back and left arm”.    The blood alcohol level reported was .10% and the alcohol level in the vitreous humor was .12%.  A person with a blood alcohol of .08 is presumed by law to be under the influence.  There were seven gunshot wounds:  (1) penetrating gunshot entrance wound at the right abdomen; (2) perforating gunshot wound with entrance at the left back; (3) penetrating gunshot wound to the lower back; (4) perforating gunshot wound to the left upper arm; (5) penetrating gunshot wound to the left elbow; (6) graze wound of the left upper arm; (7) graze wound to the left lower back.  The autopsy report states that none of the gunshot wounds were “immediately life threatening or lethal” except for the entrance wound to the right abdomen.  The autopsy reflected that none of the gunshot wounds showed any evidence of soot deposits or stippling on the skin surface at the entry sites.

 

As part of the investigation, residents in the immediate area were contacted to determine whether anything significant was heard or observed during the shooting incident.  At a residence located close to the scene the two occupants stated that prior to 4:30 a.m. they heard sirens and could hear them getting closer.  They stated that the next thing that they heard was, “Get on the ground, and show me your hands.”  They heard that being shouted at least two to three times each.  After that, they stated that they heard “at least twenty” gunshots.  Neither occupant looked outside at the time as they were lying on the floor as a measure of self-protection.

 

Bryant’s review of the investigation in this case consisted of reports, observations, and an investigation conducted by Investigator M. Patricia Munley of the Commonwealth’s Attorney’s Office as well as an extensive report containing numerous interviews, diagrams, photos, forensic reports, and other pertinent information prepared by Sergeant Richard Markle of the Virginia Beach Police Department’s Detective Bureau.

 

The legal issue that Bryant must consider in connection with shooting incidents investigated by this office is whether the officers’ actions were “objectively reasonable in light of the facts and circumstances confronting them.”   Tennessee v. Garner, 471 U.S. 1 (1985); Elliott v. Leavitt, 105 F3d 174 (4th Cir. 1996).  Four years after Garner, the United States Supreme Court said, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”  Graham v Connor, 490 U.S. 386 (1989).

 

The effort to stop Mr. Newby’s speeding, recklessly driven vehicle lasted approximately 16 minutes ending with a collision into a marked police vehicle.  The shooting lasted no more than 30 seconds.  The pointing of a firearm in the direction of police officers, given the totality of the facts and circumstances in this case, was in itself sufficient legal justification for the officers to use deadly force to protect fellow officers and themselves.  That is so even though their perception that Mr. Newby was firing his weapon turned out to be incorrect.

 

Based upon the law and the substantial evidence in this matter, it is Bryant’s opinion that Officers C, M and CA were within their legal authority and justified in the use of deadly force in the situation as it presented itself.  Their actions were appropriate under the circumstances, and were initiated to protect other officers and themselves from serious bodily injury or death.  Therefore, as Bryant previously advised Chief Cervera verbally, no charges will be prosecuted by this office against Officers C, M or CA for their conduct in this case.

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