DA DANNY PORTER'S LETTER TO BRIAN RICKMAN

(This is a letter from Gwinnett County DA Daniel J. Porter to
Mountain Judicial DA Brian Rickman.)

At your request, I have reviewed the GBI investigation of the shooting
incident which occurred on Sept. 1, 2009.

In that incident, Jonathan Ayers was fatally shot by a member of the
Mountain Judicial NCIS team during the course of a drug investigation.
This letter contains my analysis of the evidence presented to me.

I was provided with a complete copy of the GBI investigative file
including, but not limited to, the narrative of Special Agent Megan
Miller, witness statements, scientific reports, the autopsy report,
medical records, photographs and surveillance videos.

I have read the entire report, watched or listened to each video and
DVD, and examined each photograph and diagram. I have not personally
gone to, or examined any of the relevant locations nor have I
personally examined any of the items of physical evidence.

During the course of my evaluation, I have applied my experience as a
prosecutor (more than 28 years), my experience in evaluating officer
involved shootings (approximately 20 since 1985) and my general
knowledge of police training, operations, and tactics particularly in
the area of drug enforcement.

In determining the scope of my evaluation, I also decided that the
fact that Jonathan Ayers was a pastor was not a relevant factor in the
evaluation. I made this decision because the facts show without
contradiction that Jonathan Ayers was at the Shell station when he was
approached by Agents Harrison and Oxneer.

The question that must be answered is whether or not there was a valid
legal reason for the officers to approach Ayers and, if necessary,
detain him. Ayers occupation or his reason for being in that part of
Toccoa has very little to do with this analysis.

Summary of Facts

This is a brief summary of the facts to provide a context for the
legal discussion which follows. It is not meant to be an exhaustive
review nor does it contain all of the facts upon which my opinions are
based.

On Sept. 1, 2009, members of the Mountain Judicial NCIS team were
conducting a drug investigation in Toccoa, Georgia.

This investigation consisted of making a crack cocaine purchase from
Kayla Barrett with the eventual purpose of identifying Barrett's supplier.

Agent Oxner was acting in an undercover capacity to purchase the
drugs. Agent Harrison was part of the surveillance or "cover" team.
The transaction took place at Kayla Barret's residence, the Relax Inn.
At the time of the transaction Kayla Barrett could not provide the
agreed upon amount of cocaine and promised delivery by 4:30 that
afternoon (This conversation was recorded).

Barrett and Oxner then walked from the Relax Inn to an Exxon station
where Barrett purchased cigarettes. After this purchase Oxner and
Barrett began to walk back to the Relax Inn. While enroute to the
Relax Inn, Barrett approached a red or burgundy Honda Civic which was
parked on the street.

The "cover" team observed wht white male in the car hand money to
Barrett. Oxner continued walking to the motel when Barrett approached
the Civic. When Barrett returned to the motel room Oxner informed her
he would return at 4:30 to get additional cocaine.

After Oxner left, a decision was made to try to locate the burgundy
Civic and the described white male driving it to determine whether or
not the car or the person were involved in the drug transaction or
were Kayla Barrett's supplier.

Agent Oxner and Agent Harrison were riding in an undercover (unmarked)
vehicle when a red/burgundy Civic was seen approaching the Shell
station located at the corner of Broad Street and Currahee Street.
Agent Harrison positively identified the vehicle as the Honda Civic he
had seen earlier. Harrison also identified the driver as the white
male who had previously been seen with Kayla Barrett.

After an attempt to place the Civic under surveillance, the car was
observed parked at the Shell station. The decision was made to
approach the Civic and question the driver.

As the agents approached the Civic, it began to back out of the
parking space. Agent Harrison got out of the truck he was riding in
and approached the Civic from the front. Agent Oxner got out of the
same truck and approached the Civic from the rear.

Both were dressed in plain clothes with their badges hanging on chains
around their necks. According to Agent Harrison, he identified himself
as a police officer whereupon the Civic rapidly backed up.

Agent Oxner was forced to jump out of the way by banging his hands on
the trunk and pushing his body away. Based on the noise, Agent
Harrison stated that he believed Oxner had been struck by the Civic.

The Civic accelerated toward Harrison and he fired twice striking the
driver Jonathan Ayers. Ayers continued to drive the car for a short
distance on Broad Street before striking a curb. Ayers was transported
from the scene and later died of his wounds.

Legal Analysis:

The first legal question that must be considered is whether or not the
NCIS agents were justified in their decision to approach Jonathan
Ayers and his vehicle.

In order to detain an individual, the police must have at least an
articulable suspicion that the individual is involved, about to be
involved or has been involved in the commission of a crime.

Here, the agents had participated in an undercover buy of cocaine from
Kayla Barrett in which they were "shorted".

Barrett promised to deliver additional cocaine later in the day. The
agents also observed Barrett approach the vehicle of Jonathan Ayers,
speak to him and receive money from him.

It is my opinion that the agents had sufficient articulable suspicion
to believe that Jonathan Ayers met with Barrett for the purpose of
buying or delivering drugs for them to conduct an investigative stop
of the Honda Civic and an investigative detention of Jonathan Ayers.

The second legal question is whether or not any criminal charges
should be brought against Agent Harrison or any other member of the
Mountain Circuit NCIS team in the death of Jonathan Ayers. In
answering this question, I considered homicide statutes in the
Official Code of Georgia and their application to this case. My
conclusions are as follows:

Murder (O.C.G.A. Section 16-5-1)

In order to sustain a charge of malice murder, the State must prove
that the defendant acted with "malice aforethought" which is the
intention to unlawfully take the life of another.

Under the facts of this case, while it is clear that Agent Harrison
deliberately fired his weapon, there is no evidence of an intent to
unlawfully kill Jonathan Ayers.

Murder can also be committed by causing a death during the commission
of a felony. There is no evidence in this case that any law
enforcement agent was in the commission of a felony when Jonathan
Ayers was killed.

Voluntary Manslaughter (O.C.G.A. Section 16-5-2)

Voluntary manslaughter is the intentional killing of another as result
of a "sudden, violent and irresistible passion resulting from serious
provocation." Under the facts of this case there is no evidence of
either passion or provocation which would justify or sustain a
criminal charge.

Involuntary Mansalughter (Felon) (O.C.G.A. Section 16-5-3a)

Involunatry manslaughter (felony) is when a person causes the death of
another during the commission of an unlawful act other than a felony.

It is my opinion that no police agent in this case was involved in the
commission of a misdemeanor (unlawful act other than a felony) during
this incident, therefore, the evidence does not support this charge.

Involuntary Manslaughter (Misdemeanor) (O.C.G.A. Section 16--53b)

Involuntary manslaughter (misdemeanor) is when a person causes the
death of another by the commission of a lawful act in an unlawful manner.

In other words by the commission of an act which would be otherwise
lawful but with a reckless disregard for the safety of others.

Since I have previously opined that the agents had sufficient
articulable suspicion to believe that Jonathan Ayers may have been
involved in criminal activity to stop and detain him, clearly it is my
opinion that their approach was lawful.

However, there are certain aspects of the case which are of concern
when making the decision as to whether or not Agent Harrison or others
conducted a lawful act in an unlawful manner.

What follows is a list of these aspects:

There is no evidence in the file that Toccoa Police Department or
the Stephens County Sheriff's Department were aware of the NCIS
operation in Toccoa.

There is no evidence in the file as to whether or not NCIS agents
had access to jackets or vests which would clearly identify them as
police officers.

There is no evidence in the file that if the agents had access to
these identifiers, whether a choice was made not to use them.

There is no evidence in the file as to whether or not alternative
approaches to the Honda Civic were considered i.e. have a uniform car
respond before the approach or conduct a pull over after the car left
the Shell station.

The tactical decision to approach a suspect about whom so little was
known in a crowded gas station/convenience store is questionable at
best.

Without the answers to these questions, it is virtually impossible to
make a judgment as to whether the evidence would support a criminal
charge in this case. Also, until these questions are answered, no
decision can be made as to the identity of the persons charged.

I am specifically not reaching the conclusion that criminal charges
are warranted in this matter however, the only way to find out is to
present the matter to a Grand Jury.

Conclusion

My inquiry in this matter was limited only to the question of possible
criminal liability. It is not appropriate for me to comment upon
department policy violations or possible civil liability.

My recommendation is that the facts of this case be presented to a
Grand Jury pursuant to their statutory powers to inquire into any
aspect of the operation of county government. The Grand Jury could
then make a recommendation regarding the possibility of criminal
charges and individual criminal liability.

Thank you for the opportunity to assist you in this matter and if you
have any questions, feel free to call me.