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The following facts are not in dispute in the trial of Robert Steven Elston.
On July 6, 2008 Elston pulled the trigger of a .44-caliber magnum discharging one bullet into the chest of Joseph D. Burch, 31, killing the younger man almost instantaneously.
Elston, whose defense team will argue he fired in self-defense, was charged with second-degree murder.
As he sat in court during the trial, he appeared calm and lucid, smiling at family members as he was seated and to whom he clearly wanted to speak.
The outline of a bullet-proof vest — a safety precaution in what appears to be a very cautious proceeding — was just visible under his shirt.
Jury selection for the trial was approached as cautiously as the rest of the trial, and lasted a full day before ten women and four men were finally chosen and seated Friday morning.
When opening statements finally got underway, the jurors heard two theories behind the shooting.
Two sides to every story
In his opening statement Commonwealth’s Attorney Barry Moore said two things are known about Elston. “We know that he shot Joseph Burch,” he said, “and we know he said he did it in self-defense.”
Moore, however, painted a picture of misplaced loyalty, maybe even jealousy on the part of Elston over a girl. “It starts with a young woman,” he said.
Defense attorney Rob Riley, however, said it had nothing to do with a woman, just a bully. “A Kentuckian never runs and he never has to,” he said. “That’s the backbone of our self-defense law and it was never more true as Steve Elston stood 20 feet from the kitchen where he made his coffee, the living room where he watched TV, and his neatly made bed.”
Moore said though accounts differ on what exact expletives were hurled on July 6, it was obvious Elston and Burch were at odds. He continued, saying Burch stayed on the hill, and never entered the breezeway of Elston’s building or Elston’s apartment, but Elston retrieved a gun from his apartment and took up a post on the building’s stairs.
Burch, who was unarmed, still did not come down the hill, or threaten Elston physically, though the taunts continued. There are at least two accounts of what happened next, Moore said.
Riley said Elston knew “Joe Burch was not going to go away.”
As Elston stood looking up the hill, Riley said he saw “Joe Burch, a man half his age, twice his size and all muscle,” he said. “In a hand-to-hand fight he had no chance.”
“Mr. Elston simply pulled up the gun and put one shot into his chest,” he said.
July 3, 2008
In an interview with Kentucky State Police Detective Todd Harwood the day of the shooting, Elston said Susan Kopecki described to him an incident where Burch “tried to get in,” to her apartment, but that he figured the incident was over.
Kopecki said she had a “weird vibe” about Burch ever since their introduction, when Burch was to help her find a puppy for her daughter’s birthday. When the two went to get the puppy, she said, Burch “opened up” to her.
“I kind of had a weird vibe about him,” she testified. “He kind of made me feel uncomfortable.”
Kopecki said she “went off” on Burch on July 3 because she was angry over rumors about a relationship between the two. There was no such relationship, she testified. During the July 3 argument, Elston, who was not there initially, came up and “pretty much said ‘the lady asked you to leave,’” Kopecki testified.
In his statement to Harwood, Elston said he joined Kopecki in the argument and told Burch to “make sure you get out of here and do not come back.”
Some witnesses to the argument said Elston’s words were more forceful. Esther Linton and Hugh Knuckles both said Elston threatened to kill Burch if he returned to the complex.
Tracy Sharp was just smoking a cigarette outside when he saw the first of the two final confrontations between Elston and heard Elston tell Burch to leave, and not come back.
In the most tension filled testimony Monday afternoon, Hugh Gentry Knuckles said he too heard Elston threaten Burch.
During his testimony, which was met with at least three hearsay objections by Riley, Knuckles testified that Elston told Burch “if you come back down here, I’m going to kill you,” and that Elston earlier asked him to deliver a similar message to Burch. Under a very tense cross examination, his memory of the threat expanded to include an expletive.
July 6, 2008
July 6 began regularly for Elston, who woke around 5 a.m., and had his first cup of coffee around 6:30. After cooking breakfast, Elston told Harwood he went outside and talked with neighbor Wardie Kidwell. Later in the day, the two neighbors found themselves outside chatting again when, according to Elston, Burch appeared on a hill behind the apartments, where he was talking to another Osage resident, Harlan Henson.
Elston told Harwood that Burch was telling Henson “about Susie and him’s deal,” and that eventually lead to the fatal confrontation between the two men.
Henson, who said he’d known Burch since he was a baby — but couldn’t name his friend’s parents or siblings, said he and Burch were working on a lawnmower. He also testified that he thought Burch was 21 — Burch was 31 the day he was shot.
The two adversaries were “yagging,” Henson said, or quarrelling.
Wardie Kidwell, one of the Commonwealth’s more colorful witnesses, testified that he wasn’t sure when Burch first appeared on the hill behind the apartments. “I didn’t see him, but I heard his mouth,” Kidwell testified, and said that Burch was cussing Elston and another resident. Elston, he said “was sitting on the steps beside me smoking a cigar.”
“When that guy kept cussing him, Steve said he’d had enough.”
After finishing his second cup of coffee, Elston returned to his apartment to get his gun, a Ruger .44-caliber magnum pistol.
“I said Steve, don’t do nothing silly,” Kidwell testified.
He would repeat the phrase several times as Elston approached Burch, who Kidwell said was shaking his fists and “saying what he was going to do to Steve.”
Sharp and neighbor Jason Campbell both testified that they heard yelling from the back side of Elston’s building, and both saw Elston go that direction with his gun.
That included, he said, a threat to “‘take that piston from your hands and jam it up your ass.’” Sharp testified that he heard something similar.
“He came over the hill at me ... and said ‘I’m gonna beat you to death,’ and I said no you won’t,” Elston said in his interview with Harwood.
Elston’s description to Harwood of the shooting itself was short and matter of fact. Burch was about 20 feet away when Elston fired his gun, though Elston didn’t remember where Burch was hit. Burch fell.
“(Elston) laid the barrel across his left hand and shot him,” as Burch approached.
After Burch fell, Henson dragged him from the grass and into his apartment, Kidwell said.
Henson testified that Elston had come up to a crooked pine tree on the hill behind the apartments to shoot Burch, but was the only witness to describe that.
Despite walking with a cane and wearing two leg braces, Henson said he carried Burch to his apartment, where the younger man died on his couch, 20 minutes after being shot.
Elston said he then returned to the stairway where he’d been talking with Kidwell, sat down and “waited for y’all to come.”
When questioned by Riley, Henson said Elston had a bottle of Jack Daniels whiskey in his hands, though Elston’s blood tests revealed no alcohol. Harwood testified that Elston’s breath test the day of the shooting also revealed no presence of alcohol.
Henson also testified that Burch told Elston “My momma’s dead and I’m gonna take that Ruger away,” even though Burch’s mother was very much alive and in the courtroom.
In Elston’s taped statement, Harwood asked what he might have done differently that day. Elston said he would have gone to a friend’s house and stayed there, or gone into his apartment and locked his door.
Elston told Harwood that if he could, he would go back and change what happened, and that he retrieved his gun, only hoping to run Burch off. “I didn’t plan on doing what I did.”
During the interview, Harwood asked Elston if he was sorry for what he did.
“Extremely, more than you’ll ever know.”
Medical examiner Dr. Barbara Jones testified that the bullet that shot Burch exited his body in the upper left shoulder.
The single gunshot wound to Burch’s chest was a fatal injury.
She testified that the injury caused Burch to bleed internally, which made him unable to breathe.
Toxicology results for Burch revealed no alcohol.
But the tests did reveal that Burch had “therapeutic” levels of methadone and Tylenol.
The urine screening also revealed the presence of methadone, as well as Benadryl and marijuana, she said.
Jones testified that that could mean the substances were used within “the last week or so.”
Elston’s defense team, Riley and co-counsel Josh Clubb, doggedly defended their client.
Their first pounce came during Harwood’s testimony and the playing of Elston’s statement.
During the interview, Elston and Harwood drew a rough sketch of the scene from the shooting, and could be heard on tape working on it.
But the drawing was never entered into evidence.
When questioned by Riley, Harwood said he didn’t know where the drawing was.
Riley hammered Harwood, saying that the detective had been so careful to transfer the recording of the interview from digital recorder to CD, not leaving anything out, carefully preserving his client’s statement, but “where is the drawing?
“You knew everything was relevant? That just wasn’t important enough to keep?”
When Harwood said the drawing likely would have been given to Johnson, Riley quipped that that was a “nice, police officer way to say you didn’t keep it.”
Harwood responded saying he was not aware of where the drawing was.
Riley also attacked Knuckles’ testimony. Cross examination revealed that Knuckles left out a word, an expletive, in his depiction of Elston’s threat.
“When I spoke with the Commonwealth’s Attorney, I cleaned it up a little,” Knuckles snapped. “I left one word out, does that constitute a lie?”
During testimony on Friday, KSP Detective Kevin Johnson said Knuckles wasn’t interviewed until July 20, 2009.
“He said he wouldn’t talk a year ago,” Johnson testified, and said July 20 was the first time he was able to contact the witness.
During his cross examination of Knuckles, Riley hinted that Knuckles declined to offer a statement in the case, and only shared his story much later.
Knuckles said he did so because he “wanted to make sure this comes out right,” but said that did not mean he was lying.
Riley also questioned Henson’s testimony. Henson could not remember the names of Burch’s family members, though he claimed to know Burch most of his life.
The defense presented its case Tuesday afternoon. The results from that, and the final outcome of the trial will run in next week’s Local.
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