Man says shooting was last resort

04/27/2013 6:49 AM

08/08/2014 10:16 AM

A Wichita man standing trial for second-degree murder told a Sedgwick County jury Friday that he used deadly force as a last resort when he was sure his friend was about to be shot to death during an angry confrontation in south Wichita.

“I closed my eyes and pulled the trigger as fast as I could,” Dustin Cheever testified. “When I opened my eyes up, he was still standing. ... He kind of started twisting to the left and fell face-first to the ground.”

“Why did you pull your gun?” defense lawyer Steve Mank asked.

“I had no choice,” Cheever said. “I knew if I didn’t, somebody was going to be dead and I was going to be next.”

Cheever, 32, is charged with shooting Robert Gammon, 49, during a confrontation outside Gammon’s home on May 19, 2012. Wichita police said Cheever and some of his neighbors suspected that Gammon’s son was responsible for several thefts in their neighborhood. Cheever said he and a friend, Steve Grose, went to the Gammon home on the night of the shooting to see if a motorcycle that had been stolen from Grose was in the Gammons’ backyard.

After leaving the back yard without finding the motorcycle, Cheever said, he and Grose were confronted by Gammon, who was armed with what appeared to be a semi-automatic handgun. Cheever said he didn’t realize at the time that the gun fired only BBs.

“He was extremely irritated,” Cheever said. “We were kind of walking backwards. We were repeatedly telling him, ‘We’re leaving. We’re going.’ He was kind of waving the gun back and forth and saying, I’m going to kill you guys. Both of you guys.”

“How many times do you think he said he was going to kill you?” Mank asked.

“More than a few times,” Cheever said.

Cheever said he pulled his gun from his back pocket and opened fire as Gammon appeared to be on the verge of shooting Grose.

Assistant District Attorney Justen Phelps asked Cheever on cross-examination why he didn’t pull his gun out earlier.

“When somebody’s got a gun in your face and you’ve got your hands in the air, the last thing you do is reach for a gun,” Cheever said.

Cheever also told Phelps that he didn’t close his eyes until after firing the first two of six shots. Phelps asked if Cheever if he was surprised that two of the shots struck Gammon in the head and a third hit him in the upper-chest.

“That’s a pretty tight cluster for somebody with one hand on the gun and his eyes closed,” Phelps said.

“Well, yes,” Cheever replied.

Phelps also asked Cheever why he took the .40-caliber handgun, which he had borrowed from his father, to the Gammon home.

“I generally have a firearm on me,” Cheever said.

“You were just walking around that night with that in your back pocket?” Phelps asked.

“Yes I was,” Cheever said.

Phelps asked Cheever why he didn’t ask police to check to see if there was a stolen motorcycle in Gammon’s yard.

“It wasn’t something that I thought about doing or not doing,” Cheever said.

“But nobody called police?” Phelps asked.

“Nobody did,” Cheever said.

The case is expected to go to the jury on Monday.

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