Pubdate: Fri, 26 Mar 2004
Source: Courier-Journal, The (KY)
Copyright: 2004 The Courier-Journal
Contact:  http://www.courier-journal.com/
Details: http://www.mapinc.org/media/97
Author: Jason Riley and Andrew Wolfs, The Courier-Journal

DETECTIVE SAYS HE  FEARED FOR HIS LIFE

Mattingly Acknowledges He Didn't See Gun on Newby Louisville Metro Police 
Detective McKenzie Mattingly told investigators he feared for his life but 
never saw a gun on Michael Newby before fatally shooting him in the back 
Jan. 3 after an undercover drug deal went awry.

Mattingly and four eyewitnesses - including Mattingly's own partner - also 
told investigators that Newby was moving away from the detective when he 
fired four rounds at Newby, hitting him in the back three times. Those and 
other facts about the fatal shooting emerged yesterday as the 
commonwealth's attorney's office filed nearly 1,000 pages of documents in 
Jefferson Circuit Court, where Mattingly was indicted earlier this month on 
charges of murder and wanton endangerment. Mattingly has pleaded not guilty 
and faces 20 to 50 years or life in prison if convicted of murder.

The documents include a statement from Greg Hill, the manager of a liquor 
and food store at 46th and Market streets, who said he saw the shooting 
from his business and told police that Newby was about nine feet away from 
Mattingly when the fatal shots were fired.

"His back was towards the officer," Hill said. "I saw the kid's eyes, the 
kid was facing me. I saw his eyes when he got hit."

Police Chief Robert White has said that Mattingly and Newby were struggling 
over Mattingly's service handgun when the weapon discharged during an 
attempted undercover drug buy. Newby ran, and Mattingly fired his gun four 
times, striking Newby three times in the back and killing him.

Mattingly said in a statement that he was "scared to death" when he shot 
Newby and felt the 19-year-old was "trying to go for a weapon."

INVESTIGATION WRAPPING UP Investigators with the Louisville Metro Police 
Department's Professional Standards Unit are wrapping up their 
investigation into whether Detective McKenzie Mattingly followed department 
procedures on the night Michael Newby was shot, said Maj. Tim Emington, who 
oversees that unit. Police Chief Robert White directed the unit to complete 
its investigation within 35 days following the indictment against Mattingly 
on March 5.

Emington said he expects the deadline to be met so that White can review 
the investigation and determine if disciplinary action should be taken 
against Mattingly.

While he told Commonwealth's Attorney Dave Stengel that he never saw a gun 
on Newby, Mattingly said he thought Newby was armed because he kept lifting 
his shirt.

"There's no doubt in my mind that he was tryin' to get a gun out," 
Mattingly said.

Police say a .45-caliber gun was found in Newby's waistband after he was 
shot; witnesses, including Mattingly, said Newby never pulled it out.

Mattingly also said he thought - mistakenly - that Newby had shot him in 
the foot during a scuffle for the detective's service weapon.

But Stengel questioned Mattingly on why the detective felt his life was 
threatened.

"Exactly what threat is posed by the back of an unarmed man?" he asked.

"I never saw Mr. Newby's back until he went down," answered the detective, 
who has been placed on leave with pay but without police powers.

Mattingly's attorney, Steve Schroering, declined to answer questions about 
his client's statement taken Jan. 30, or any evidence disclosed yesterday.

Investigative file Records show incident lasted only seconds

The documents include most of the investigative file of police and the 
prosecutor's offices; summaries of witness statements to investigators; 
Newby's autopsy report and several photographs.

A postmortem examination by the Kentucky Medical Examiner's office showed 
that Newby died of three gunshot wounds. One bullet hit him in the upper 
right back, another in the lower right back and the third in the lower left 
back.

The records show the entire incident took only seconds; witnesses say the 
two men were five to 12 feet apart when Newby was shot.

At least four witnesses told police they saw the shooting. They offered 
slightly conflicting accounts of how quickly Newby was moving away from 
Mattingly, and whether Newby posed a threat to the detective.

Legal experts have said that a jury might acquit the detective if 
Schroering can prove Newby was reaching for his gun or turning toward 
Mattingly in a threatening manner.

Hill, the manager of HandS Groceries and the liquor store, told police that 
after Newby and Mattingly struggled, Newby "broke and ran."

Mattingly's partner, Detective Matthew A. Thomerson, who was monitoring the 
undercover drug deal from a short distance away, also initially told police 
that Newby was running away from Mattingly when he was shot.

A few hours after the shooting, Thomerson said, "It appeared that he 
(Mattingly) was firing rounds at the subject that was either fleeing or 
taking cover or a better position."

Thomerson said Newby looked back several times and at least once faced the 
officers.

"I didn't know if he was turning to face me to either fire a shot or what 
he was doing," Thomerson said.

Thomerson said he didn't fire his own weapon, in part because it would put 
several people who were in a vehicle in the liquor store drive-through at risk.

In a subsequent interview in late January, after reading media accounts 
that Newby was fleeing from Mattingly when the detective fired, Thomerson 
insisted to prosecutors that Newby was not trying to get away. "He wasn't 
running and trying to get away. You could see his face, when the rounds 
were actually fired," Thomerson told prosecutor Scott Davis.

Thomerson also said that news organizations were "trying to say he was 
running away and that this officer simply shot him as he was running away, 
that just wasn't the case."

Mattingly said in his statement that Newby was moving away at a "quick, 
clumsy walk," but not fleeing.

Another witness, Donitra Mullins, who saw the shooting from her vehicle in 
the drive-through of the liquor store, offered a statement in which she 
said Newby and Mattingly were facing each other when the shots were fired.

Mullins said she heard an officer tell Newby to put his hands up, and then 
the shots were fired in quick succession.

Mullins said that after Newby was shot and "gasping for breath," an officer 
"kicked Newby over" and put her foot on him, telling him to spit out any 
drugs he had in his mouth.

Another person in the car, Alonzo Mullins, said Newby was running toward 
them when Mattingly fired.

Newby was the second man, and first African American, fatally shot by 
Louisville Metro Police since the city and county departments merged Jan. 
3, 2003. Since 1998, 11 men have been fatally shot by police in Louisville, 
and seven have been black. Mattingly is the only officer criminally charged.

Newby's mother, Angela Bouggess called much of Mattingly's statement "a 
bunch of lies."

"I think what Mattingly said sounds like jokes," Bouggess said in an 
interview last night. "Mattingly said my son wasn't running because he 
doesn't want to feel like he shot a person fleeing, but the truth is, he 
did. He ought to throw in the towel and apologize to the police department 
and apologize to the family instead of getting deeper and deeper into lying."

Jerry Bouggess, Newby's stepfather, said he doesn't believe Mattingly's 
accusation that Newby was going to shoot him.

"I saw so many holes in what he was saying about struggles and distances," 
Jerry Bouggess said, "and how he was afraid of his life and all. He's not 
no sheep, like he's afraid of some 147-pound guy. He's trying to get 
sympathy from others."

The couple said they are glad the truth is starting to come out.

Looking for drugs Night of police work didn't go as planned

In the hours before the confrontation, the six officers and two sergeants 
assigned to Mattingly's flex unit had been making calls to cell-phone 
numbers of dealers identified in earlier investigations, trying to lure 
them into selling drugs to undercover officers.

They had arrested three people, and a fourth suspect had promised to 
deliver crack cocaine by bicycle to the parking lot of the liquor store 
near 46th and Market.

Mattingly was assigned to buy the drugs, as he had done about a dozen times 
since joining the county police in 1999, he later told investigators.

Shortly before midnight, dressed in plain clothes, he parked a black Chevy 
pickup truck in the parking lot of the store, while other officers 
stationed themselves nearby, monitoring the communications with a wire worn 
by Mattingly.

But the bicycle-riding dealer never showed up, Mattingly and another 
officer said. Instead, two young men and two juveniles approached 
Mattingly's car, with the older two offering to sell him crack cocaine, 
officers said. One of them was Newby.

"They asked Detective Mattingly if he was the police and he said, 'No, I'm 
not the police...Why, are you the police?'" Officer Bruce Goodfleisch, one 
of the backup officers, told investigators.

Mattingly insisted he already had a supplier - the man who was supposed to 
show up on the bike, but Newby and the other man - identified by police as 
Ismail Shabazz, 23 - kept nagging him to buy and he assented, said Officer 
Malinda Zirnheld, another platoon member who was listening. "Everything was 
fine because we could hear everything on the wire," Zirnheld later told 
investigators.

But then Shabazz grabbed the buy money and Newby grabbed the crack out of 
the truck, Mattingly and Shabazz both told police later.

Mattingly got out of the truck, assuming all four had fled, but found Newby 
crouching down picking up a $20 bill, Mattingly said when he was questioned 
by Stengel.

Mattingly announced on the wire that he had been robbed. He then told Newby 
that he was an officer and tried to restrain him on the roof of a Jaguar 
parked next to the truck.

"I was like, "Stop! I'm the police.' And he just had this stoned, cold 
like, sobering look in his eyes, like 'I don't care,'" Mattingly told police.

Mattingly insisted he feared for his life - and that he thought Newby was 
armed.

But questioned by Stengel, he admitted he never shouted "Gun!" - as 
officers are trained to - nor sounded the code word for an emergency.

When Thomerson drove up during the altercation between Mattingly and Newby, 
he said he saw the two men were wrestling, with Newby at one time behind 
Mattingly.

When Thomerson opened his door to get out, he heard a gunshot and assumed 
Mattingly had been hit because of Mattingly's reaction.

Question of arms Detective says Newby tried to reach gun

Mattingly told Stengel he thought Newby was armed because he had previously 
lifted up his shirt, suggesting he had a weapon. Mattingly said he feared 
for his life, even as Newby moved away from him, because he continued to 
lift up his shirt and look back at the detective.

But asked by Sgt. Peter McCartney of the Public Integrity Unit if he ever 
saw a gun on Newby, Mattingly replied, "No, I did not."

"What was your intention when you shot him?" McCartney asked Mattingly.

"Prevent him from killin' me," he said. "You know, to stop the threat. I 
felt he was tryin' to get a gun out to shoot me. I did not feel like his 
actions were that of a fleeing felon."

Shabazz and one of the juveniles, 15, were apprehended at the scene and 
charged with trafficking in a controlled substance. Both later gave 
statements to the police that they had heard gunfire but didn't see the 
shooting.

The other juvenile got away.

Shabazz and the 15-year-old said they had approached Newby trying to buy 
some marijuana with which to celebrate the juvenile's birthday that day. 
After the incident, Mattingly and Thomerson briefly discussed the shooting 
in Thomerson's vehicle, Mattingly recalled.

He said they'd started the day two hours earlier, to rack up some overtime.

"I remember telling him...this is not how I planned on getting overtime."
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