After more than three days of testimony, Steve Elston has been convicted of reckless homicide.
Elston was charged with second degree murder in the July 6, 2008, shooting death of Joseph Burch. The jury deliberated less than two hours before returning a verdict — one of five options presented by Judge Karen A. Conrad.
The options included finding Elston not guilty, guilty of the original charge, or guilty of one of three lesser charges.
The panel was released to deliberate around 4 p.m. and returned with a verdict of reckless homicid, a class D felony in Kentucky, just before 5:30. The next day, the jury recommended a three-year sentence after less than an hour of deliberation. The maximum sentence they could have recommended was five years.
Elston, who has been in jail since the incident, will be immediately eligible for parole.
Matt Hudson, with the Kentucky Department of Corrections Probation and Parole unit, said an inmate has to serve just 15 percent of their sentence before becoming eligible for parole. With a sentence of 36 months, Elston would have been eligible for parole after 5.5 months in jail.
He said the time served while waiting for the outcome of a defendant’s charges counts toward their sentencing. Elston also could receive “time credit” for good behavior and meritorious good time.
But whether or not Eslton remains in jail to serve out his sentence still will be up to a parole board, Hudson said. “The parole board can issue a serve out, or defer and consider at a later date, or release,” he said.
Final sentencing will take place in Trimble County Circuit Court on Aug. 27.
Defense argues self-defense
On Aug. 4, Elston’s lawyers introduced witnesses they believed would bolster their argument that Elston shot Burch in self-defense.
Nurse practitioner Mark Dyer treated Elston on a number of occasions at First You Medical Center in Eminence beginning in July 2007. After several tests, Dyer said blood tests revealed that Elston suffered from low blood platelet counts. That, Dyer said, meant Elston should avoid injury because his blood wouldn’t clot properly.
Dyer told Elston to avoid cutting or hurting himself, and to not engage in dangerous activities. “I told him he could possibly die if he were to injure himself,” he said. That included, he testified, being injured in fights.
Commonwealth’s Attorney Barry Moore did not dispute Elston’s health issues, but questioned Dyer’s medical qualifications. Dyer said that while he was not a doctor, he attended medical school and trained with a doctor for more than seven years.
Moore also questioned the implications of Elston’s blood disorder and that small bruises, from bumping into a table for example, probably wouldn’t lead to death. But it was bruises like that, Dyer said, that lead to Elston’s diagnosis.
The condition itself, he said, would not cause death, but trauma could cause internal bleeding. “Trauma to the head can cause bleeding into the lining between the brain and skull,” which he said is more likely to happen with a low platelet count.
Elston’s defense team also tried to establish a pattern of drug use by Burch, which they argued made him a greater threat.
George McDannold, a pharmacist for Cook’s since 1974, testified that according to medical records, Burch was prescribed methadone by the Southern Indiana Treatment Center in November 2003 and still had an active prescription the day he was shot. According to the records, McDannold said, the center prescribed methadone to treat an addiction to “street drugs,” and “he wanted to get off those to be a better dad and stabilize his life.”
At one point, however, the treatment center reduced Burch’s methadone dosage after he tested positive for marijuana. McDannold said standard procedure calls for a reduction of “sometimes 10 but up to 20 percent,” and Burch’s reduction was on the higher end. According to the records, McDannold testified, Burch was told his take-home methadone would be reduced or revoked, which meant he would have to go to the clinic to get it.
That created an angry response from Burch, and McDannold said the medical records stated that he became argumentative and hostile, and the clinic’s security was called in.
“The anger response is normal,” McDannold said of Burch’s reaction to the dosage reduction. “The patient will request to get his higher dose back, might have stomach or muscle pain, insomnia.”
But methadone wasn’t Burch’s only prescription, McDannold testified. Burch also was receiving prescriptions for hydrocodone up until May 2008 for 100 hydrocodone per month.
Lab technician Vanessa Bell testified earlier in the day for the prosecution, noting no hydrocodone was identified in Burch’s toxicology report, which was based on about 50 tests. Those tests revealed therapeutic levels of methadone, plus marijuana, Tylenol and Benedryl.
In his own words — July 3, 2008
Elston, who took the stand Aug. 5, said his health was “not the best in the world.”
He was wary of being hurt. “I watch anything that moves,” he said. “He scared me to death.”
According to Elston, it was the possibility of injuring himself that brought him together with Susan Kopecki.
Afraid he would cut himself, Elston said he paid Kopecki — who told him she had attended cosmetology school — to trim his fingernails and toenails. “I couldn’t see to do it myself,” he said. Elston said he only used her services once.
The two did not socialize, he said, and he walked her back to her apartment once because she told him she was afraid to walk home alone.
“She come up and asked me if I’d walk her home,” he said. “I said why, your legs ain’t broken.”
Elston testified that Kopecki told him she felt she was being stalked by Burch, and that he carried his gun while he walked her home. “I didn’t know if there’d be someone waiting for her,” he said.
Moore questioned why Susan Kopecki would ask for Elston’s protection from a stalker, knowing he was a “free bleeder.” “I’m probably the only one who’d do it,” Elston replied.
The incident from July 3, 2008 — which the prosecution presented as a lead-in to the fatal shooting — began, Elston said, with Burch coming to the Osage Apartment Complex.
Burch came to the complex on a scooter with his son on the back. “He come in over the hill too fast,” Elston said. “When he hit the speed bump the kid went to the right and he went to the left. The kid looked pretty banged up.”
Prosecution witness Esther Linton testified earlier that the confrontation between Burch and Kopecki escalated with that accident.
Elston said Burch and Kopecki were fighting — Elston testified that it was a “cussin’ contest” — and she wanted Burch to leave, but Elston denied threatening him. “I told Burch to get home and stay home,” he said. “I said get on out of here.” He also told Burch to get a helmet for his child.
Kopecki was yelling at Burch, according to Linton, who also said Elston had a gun tucked into the back of his pants when he threatened Burch.
According to Elston, however, there was no way he had a gun in the back of his pants. “I was sitting on the steps,” he said. “It would go places you don’t want it to go.”
In his own words —
July 6, 2008
It was a typical Sunday morning of coffee, breakfast and visiting with friends for Elston. “I heated me up a cup of coffee and an extra cup for PeeWee (Campbell),” Elston said.
He and Campbell spent the rest of the morning moving tomato plants knocked over by the wind the previous night. He denied drinking whiskey — which prosecution witness Harlan Henson testified to — the day of the shooting, but instead drank cranberry juice cocktail from a mug.
It was after lunch when Burch arrived at the complex.
Elston said Joe Burch taunted and baited him from the hillside behind the apartment building.
Burch was with Henson, a long-time family friend who kept a lawnmower on the hill and often tinkered with it. “Every day he was up there beating on his lawnmower,” Elston said.
According to Elston, Burch yelled and hurled epithets over rumors about Burch and Kopecki, which Elston was alleged to have started.
“He just kept on and on,” Elston said. “I told him to go away and leave me alone.”
Burch dared him to come down to the cemetery, according to Eslton and “I went.”
Elston said he had his gun in his lap, with the intent of taking it with him to a friend’s house.
Under cross-examination, Elston said Burch didn’t come up the steps, and instead went back to Henson.
Elston said he didn’t know Burch was on methadone, but “I knew he was on something.”
With his left hand on the stair railing, and the gun now in his right hand, Elston said he told neighbor Wardie Kidwell that he would run Burch off, “and everything will be fine.”
But Elston said Burch continued harassing him, and he continued telling Burch to go home.
Elston said Burch kept walking toward him fast. “I think he must be a damned idiot, he’s lost his mind,” Elston said. That was when Elston cocked the gun’s hammer, which he said made Burch mad.
He planned to stop him, but didn’t know where he hit the younger man. When asked by defense attorney Rob Riley why he didn’t fire a warning shot, Elston said it would have made his adversary even more angry.
Riley asked why Elston didn’t just go back to his own apartment. “(Burch) brought the fight to me,” Elston said. “Don’t nobody run me away from my house.”
Neither Elston nor neighbor Campbell had a phone, so calling the police was not an option, he said.
“I didn’t have no choices,” he said. “That was my choice.”
When questioned by Moore, Elston said Burch stayed on the hill “until he came after me.” Elston said he pointed the gun, but didn’t aim, and fired.
During closing arguments, Clubb said Elston was justifiably afraid for his own life.
“He could stop that man or take probably the last beating of his life,” Clubb said.
Witnesses Tracy Sharp and Wardie Kidwell, with no ulterior motive, described the same thing, Burch cursing and screaming at Elston non-stop for 15-20 minutes.
“They saw Steve Elston, and they saw Joe Burch at the top of the hill taunting and yelling at him,” Clubb said. He said Kidwell went so far as to say, “if I’d had a gun I’d shot him, too.”
Clubb said even if jurors didn’t believe a word Elston said, they should listen to what Tracy Sharp, Jason Campbell and Kidwell said. “They all tell the same story.”
He discounted the testimonies of Henson and Hugh Knuckles. Henson, he said, was a liar and Knuckles was just saying what the Commonwealth’s Attorney told him to say.
“The only thing Hugh Knuckles said that made sense was that Joe Burch would beat the piss out of Steve Elston in a fair fight,” Clubb said.
He told jurors Elston took all he could from a man who was “23 years younger, 40-50 pounds heavier, all muscle, taller and quicker.”
Most people would walk away from an armed man, Clubb argued. “You’re not going to argue with a man with a gun,” he said. “Anybody with any sense at all is going to turn around and leave.”
But Burch was “emboldened by a bloodstream full of narcotics, still taunting this little man ...”
That was the moment Elston made the choice. “All he knew was that he had stopped that man,” Clubb said. “Then he sat down and waited for the police.”
Commonwealth’s attorney Barry Moore said the incident did begin with Susy Kopecki and ended with Steve Elston killing Joe Burch.
“She and Steve Elston had a relationship that was more than fingers and toenails,” he said.
Moore said when Kopecki claimed Burch was harassing her, she didn’t go to her six-foot tall boyfriend, but instead told 5’5” Elston. “Who was there on July 3 when she verbally and physically assaulted Joe Burch,” he said, “Steve Elston.”
Moore said the fact that Elston is a bleeder was important, but not for the reasons given by the defense.
“It’s important because on July 3 (Elston) knew all this stuff, but went down and told Joe Burch ‘I’m gonna shoot (or) kill you,’ you’ll have to decide which it is,” he said.
Moore said it was an argument that turned into a cussing match. “Steve Elston was sitting at the top of the breezeway,” he said, “tired of hearing cussing, tired of being yelled at so he walked down the steps with a gun.”
Moore said the presence of the gun escalated the situation, bringing a gun to an argument.
Moore argued Joe Burch had the right to be there. “He didn’t have to retreat,” he said. “Joe Burch was shot on that hill. We know he never left that hill.”
Moore concluded his summation saying the facts were indisputable.
“There is no doubt he shot Joe Burch and no doubt he intended to,” he said. “There’s no doubt he wasn’t acting in self-defense,” he said. “He wasn’t scared, he wasn’t afraid. He brought a gun to an argument.”
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