Amherst deputy not indicted in shooting case

Related:

Details emerge in Amherst County deputy shooting

AMHERST — A grand jury meeting Wednesday to consider charges stemming from the March shooting of a Lynchburg man by an Amherst County sheriff’s deputy did not return an indictment against either man.

Botetourt County Commonwealth’s Attorney Joel Branscom, a special prosecutor appointed to handle the case, said he presented an indictment of unlawful wounding against Investigator Chris Smith for the shooting of 68-year-old Mack Berkley, as well as an indictment against Berkley for cocaine possession.

“I wanted the grand jury to consider it rather than just me,” Branscom said. “It was a close case and I wanted the community to have a voice.”

Five county residents sat on Wednesday’s special meeting of the grand jury, which typically only meets every two months in Amherst County.

The grand jury, which meets and makes its decisions behind closed doors, only hears the prosecutor’s side of the case. Its function is to decide if there is probable cause to believe a person committed a crime and should stand trial.

Sheriff Jimmy Ayers said Wednesday afternoon that after he is assured the entire criminal matter has concluded, an administrative investigation conducted by the sheriff’s office into Smith’s actions also would end.

“Then, hopefully, the officer can return to work,” Ayers said.

Branscom, who was dismissed from his duties as special prosecutor Wednesday afternoon by Circuit Court Judge Michael Gamble, said the criminal matter was over unless any new information comes to light.

According to an affidavit filed by Virginia State Police Special Agent Dino Cappuzzo, the investigator who handled the case, the shooting happened during an undercover drug investigation.

In the affidavit, Cappuzzo wrote that an informant had contacted a Lynchburg woman named Davida Harsley to set up the purchase of $600 of crack cocaine in the Food Lion parking lot in Madison Heights during the afternoon of March 20.

Harsley unexpectedly arrived as the passenger in a car driven by Berkley, Branscom said Wednesday after the grand jury hearing.

The prosecutor said evidence showed that a marked sheriff’s car pulled up on the driver’s side of Berkley’s vehicle. Another unmarked car pulled up on the passenger side, he said.

Branscom said Smith exited the unmarked car and that deputies, with weapons drawn, told the occupants of Berkley’s car to put their hands up.

He said that the dashboard camera from the marked car showed Harsley moving “up and down,” and that Berkley put his hand in his pocket twice when ordered to put his hands up.

He said Smith shot Berkley twice through the windshield of the car, striking him in the torso.

“Police officers are put in a tough position,” Branscom said. “They could have found that (Smith) was put in fear.”

The question then, the prosecutor said, was whether that fear was reasonable.

Berkley had faced charges of conspiracy to distribute cocaine and possession of cocaine with the intent to distribute before Branscom dropped them late last month pending the completion of the state police investigation.

Branscom said a small amount of cocaine was found as emergency workers were cutting off Berkley’s clothes. Because of the severity of Berkley’s injuries, he said, there could have been problems proving he had any knowledge of the drugs, a key element of the possession charge considered by the grand jury. Berkley, he said, doesn’t remember anything.

The prosecutor said there was no evidence to support drug charges against Harsley, which also were dropped last month.

Smith, who is listed as a computer crimes investigator in a directory on the Amherst County government Web site, has been on paid administrative leave since the shooting.

The sheriff said he was glad the matter was over for Smith’s sake and for that of the entire department. He said he was pleased by the grand jury’s decision.

“It’s one of those situations we never want to be put in,” Ayers said.