State presented ‘substantial amount of evidence’ to convict Thomas

Published 3:34 pm Friday, March 2, 2012

After less than two hours of deliberation on Thursday afternoon, the jury in the capital murder case of John Lewis Thomas, Jr. returned a verdict: guilty on all charges.

Thomas faced six charges related to the deaths of Charles Kelley and Patricia Barginere at Kelley’s Grocery in Highland Home on Aug. 28, 2008, including three counts of capital murder, one count of attempted murder and two counts of first degree robbery.

Thomas originally pleaded “not guilty by reason of mental defect,” but the mental defect portion of the plea was withdrawn and the plea stood as “not guilty.”

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Thursday’s proceedings consisted of closing arguments by both the prosecution and the defense.

“The state has presented a substantial amount of evidence,” said Assistant District Attorney Levi Nichols.

Nichols reminded the jury of the evidence presented in the case, such as the white Chevrolet truck with a maroon stripe that matches a truck owned by Thomas and was seen leaving the store that afternoon by eyewitnesses.

A cash register with Charles Kelley’s fingerprints was also found in an abandoned well.

“Law enforcement was looking for a register because it was missing, and they found it,” Nichols said. “Think back to where it was found: down the road from the defendant’s house on property that was bought from the Thomas family.”

Nichols said that two thumbprints and a handprint from Thomas were found in the store, even though he told police he hadn’t been there.

“He told agents 12 times in 20 minutes, ‘I haven’t been to Crenshaw County’,” Nichols said.

Nichols later said that the defense would have the jury believe that the prints could be from an earlier visit to the store, one that occurred a year earlier.

“Those prints were on glass in a place that serves food,” he said. “One wipe down and those prints are gone.”

Nichols also painted a picture of what he called the “senseless killings.”

He said that according to the testimony of Dr. Stephen Boudreau, medical examiner for the state of Alabama, both Kelley and Barginere were shot and killed from a range of 18 to 24 inches.

“Mrs. Barginere was headed for the door, but she didn’t make it.  He got there first,” Nichols said, gesturing at the defendant.

Nichols also said that Cathy Richards, a state expert in firearms, testified that the bullet that killed Charles Kelley and two recovered from Betty Kelley’s house matched a .38 caliber gun found in Thomas’s home.

The bullet that killed Barginere was damaged and unable to be positively linked, but it did have “class characteristics” matching that of a .38.

“The burden of reasonable doubt is on us, and we wouldn’t have it any other way,” Nichols said. “When you consider the evidence, there is only one decision that supports the evidence. We ask you to make the only verdict the evidence supports — guilty on all charges.”

In the defense’s closing statement, attorney Brandon Sellers compared the case and its circumstantial evidence to cotton candy by relating a story about his daughter.

“My 5-year-old girl loves cotton candy.  She takes a big bite, but once she gets it in her mouth, she says, ‘Daddy, where’s the cotton candy?'” he said. “It’s just hot air mixed with sugar.”

He said the prosecution had used circumstantial evidence and “whipped it and whipped it,” but once you paid attention, little granules started showing up.

Sellers talked about the testimony of eyewitnesses, including Betty Kelley, Steven Jackson and Gary Shirley.

“Mrs. Kelley is sick, frail, and she was confused when she was here,” he said. “It became difficult and unfair to her to keep asking questions.”

He also said that Jackson and Shirley made statements that were slightly different from what they told law enforcement.

“If neither was sure six hours after it happened, how can they be sure three and a half years later?” he said.

Sellers also made a case for the Alabama Bureau of Investigation and Crenshaw County Sheriff’s Department not doing their due diligence in investigating other leads, suspects and Thomas’s alibi for that day.

“They don’t verify that he was at the junkyard that day,” said Sellers, who went on to ask if law enforcement visited gas stations, the Ramer Public Library or checked phone records. “They didn’t call his dad, his sister or his sister’s friends. They didn’t even check out a truck like his on Tony McNear’s road.”

McNear is the co-defendant accused of the same crimes, but he will be tried separately from Thomas.

“McNear is a co-defendant. How much did you hear about him?” Sellers asked. “Very little.”

Sellers also pointed out that Kelley was six feet tall, while Barginere was five feet, 11 inches.

Thomas stands five feet, two inches tall and weighed 380 pounds at the time.

Sellers said that not only would Thomas not have fit behind the meat counter without disturbing surrounding items, but also that his height doesn’t match the forensic evidence from Dr. Boudreau about the angle of the gunshots.

“I’ve never seen anyone shoot six inches above their head,” he said. “There was only a 15 degree drop. That’s not much.  Tony McNear is 5’11”.  That doesn’t line up with someone who is 5’2″.”

“There’s no testimony that the victims were anything but standing,” Sellers continued. “The state wants you to believe that a five foot, two inch-man fired straight and parallel. That doesn’t jibe.”

Sellers also said that there was no DNA evidence from either Kelley or Barginere found on Thomas’s clothes.  He said that some evidence that may have helped Thomas’s alibi might have been contaminated or lost during the investigation by the CCSO and the ABI.

Sellers reminded the jury that if an element of capital murder or first degree robbery was not met, they should look to a lesser charge.

“If each and every element is not met, you should find him not guilty,” he said. “I ask you to find him not guilty on all charges.”

During the state’s rebuttal, assistant district attorney Jessica Ventiere said that the defense wanted the jury to believe that Kelley and Barganiere stood up straight and tall while being shot.

“That’s a diagram — that’s not real life,” she said.

One of the photographs from the scene showed a chair next to where Kelley was found.

“That takes a six-foot-tall man and he becomes a four-foot-tall man,” she said. “The angles then don’t seem like such a reach.”

Ventiere said that the defense wants to “gloss over” the fingerprints found near a victim, and that the gun was found at Thomas’s house.

She also said that Thomas brought McNear into the case during the investigation.

“They acted together,” Ventiere said. “They are equally guilty. You can’t shift the burden onto someone else when both of them were there.”

The jury deliberated less than two hours before reaching a verdict.

The two possible sentences for a capital murder conviction are life in prison or the death sentence, and the sentencing phase of the trial will begin at 9 a.m. Monday morning.