Trial to air big questions in Vick's killingEvans expected to claim self-defense or implicate companion as shooter
BY SHANNON PRATHER
Pioneer Press
There is no doubt last spring's slaying of St. Paul police Sgt. Gerald Vick tore a hole in the police ranks and pained an entire city.
But exactly what happened in a dark alley early May 6 on the city's East Side is less clear.
The case against Harry Evans, the man charged with shooting Vick, is fraught with complications. Evans' trial, scheduled to begin Tuesday with jury selection, will be the first of someone accused of killing a police officer in St. Paul in more than a decade.
Jurors could find themselves wrestling with difficult questions: What ignited the confrontation? What role did alcohol play? Does Vick's blood-alcohol level of 0.20 percent at the time of his death matter? Was the undercover officer on duty when he followed two men into an alley?
Those uncertainties have given Evans' attorneys reason to claim he acted in self-defense or that someone else pulled the trigger. The defense may point to Evans' companion, Antonio Kelly, who was considered a suspect during the chaotic hours after the shooting.
Prosecutors, who granted Kelly, 28, limited immunity for his grand jury testimony, may turn him into a star witness against Evans, 33, who is charged with first-degree intentional murder of a peace officer and second-degree intentional murder.
"It's a tough case for all the parties involved. We are interested in seeing Mr. Evans get a fair trial," said Kelley Malone-O'Neill, a Ramsey County assistant public defender representing Evans.
Ramsey County Attorney Susan Gaertner, who in an unusual move will try the case personally, declined to speak about the strength of the state's evidence.
"As a prosecutor, I have an ethical obligation to only proceed in a case if I feel I can prove it beyond a reasonable doubt," she said. "Since we charged the case, there have been no surprises."
Prosecutors are expected to rely heavily on Kelly and a second witness, who say they saw Evans shoot Vick, as well as video surveillance that showed Evans outside the bar where the incident began. Vick's partner, Sgt. Joe Strong, who accompanied Vick that night, also is expected to testify. Police have recovered the handgun used in the shooting and have run a battery of tests on it.
To get a conviction on the first-degree murder charge, which carries an automatic life sentence, prosecutors must prove Vick was intentionally killed while engaged in the performance of official duties. The prosecution need not prove the defendant knew Vick was a peace officer.
To convict on the second-degree murder charge, which typically carries a 25-year sentence, prosecutors must prove only that the defendant intended to kill Vick.
Vick and Strong had been working undercover investigating prostitution at four local taverns when they walked out of Erick's Bar on East Seventh Street about 2 a.m. May 6. Authorities say the officers confronted Kelly and Evans. Kelly told police it was because he was urinating in public. All four men had been drinking, and at least three carried guns.
The police sergeants left in separate unmarked cars. But as Strong stopped in front of Erick's Bar, Kelly stepped in front of the officer's car and started a second confrontation, according to the criminal complaint in the case. Strong reported calling Vick for backup after seeing Evans rejoin Kelly.
In an alley near the bar, prosecutors allege, Evans shot Vick, 41, three times, killing him. Strong, who was behind Vick, pulled his handgun and fired at the two fleeing men but missed. It's unclear whether either Vick or Strong identified himself as a police officer. Police said investigators found Vick's gun still in its holster.
Evans and Kelly were arrested later that morning. Both men initially denied being involved with the shooting. But a day after his arrest, Kelly fingered Evans as the shooter. Kelly led police to the discarded .38-caliber revolver police determined was used in the shooting.
A man also came forward and told police he witnessed the shooting while driving by the bar. His description of the shooter's clothing matched what Evans was wearing that night.
But legal experts said the prosecution's case is far from seamless. Vick's intoxication coupled with questions about who started the confrontation outside the bar, how it escalated into violence and the credibility of Kelly's testimony could cast doubt in the minds of jurors and fuel an argument of self-defense.
In Minnesota, a person may kill in self-defense if he or she reasonably believes there is an imminent threat of death or great bodily harm and there is no opportunity to flee.
"The jury is going to be making the call if the perception of the person is reasonable," said professor John Sonsteng, who teaches criminal law at William Mitchell College of Law. "If you know that you can flee in complete safety, then you have to do that."
According to Minnesota law, jurors will be instructed that the average person must agree that fatal force was a reasonable exercise of judgment in the case.
"A person in the right circumstance can empty an entire gun into someone and a jury can find him not guilty of murder because of self-defense," said John Leunig, a defense attorney who in 1997 won an acquittal in a Hennepin County murder case arguing self-defense.
Vick's pursuit of Evans and Kelly and his intoxication could bolster a self-defense strategy.
"Intoxication can cause a person to do things they might otherwise not do," said defense attorney Howard Bass, who successfully argued self-defense for a man accused of fatally stabbing a student in downtown Minneapolis in 1999.
Dakota County Attorney James Backstrom, who is not involved with the case, said a thorough prosecutor who dissects the sequence of events for jurors could defeat a self-defense claim.
"You are going to make the jury understand this was not a reasonable action under the circumstances," Backstrom said.
A self-defense argument carries pitfalls. Defense experts said the strategy can plant an expectation among jurors that the defendant will testify, which is a risk. If Evans takes the stand, the prosecution may be able to ask him about his 1991 conviction for attempted murder in Illinois.
The defense also is expected to question whether Vick's actions were part of his official duties.
Vick was drinking with his partner and two women minutes before the shooting. Police and prosecutors have said he was undercover and on duty, but Samuel O'Neal, a bartender at Erick's, told a defense investigator that Vick identified himself as an officer when some bar patrons caused a ruckus and helped the bartender eject the troublemakers.
Legal experts say the defense will try to cast doubt that Vick was acting in an official capacity at the bar and when he left it. According to police, Vick started his shift at 11 a.m., which means he would have worked about 15 hours.
"I think that's absolutely fair game," Bass said. "Why is he intoxicated if he's on duty?"
Some of the physical evidence raises problems for the prosecution. Police found gunshot residue on Kelly's hands but found none on Evans.
Witness accounts could also trouble prosecutors. Less than two hours before Vick's death, Renee Devens, a bartender at Cab's Pub and Eatery, said she saw Kelly, not Evans, with a gun matching the description of the murder weapon tucked in his sock. Devens said Kelly was "acting crazy and as if he was high on drugs."
Legal experts agree that Vick's standing in the community as a decorated, 16-year police officer could affect jurors.
Evans' defense team sought to move the trial out of St. Paul because of Vick's portrayal by the news media as a fallen hero. Ramsey County District Judge Kathleen Gearin denied the request, but Malone-O'Neill said she would revisit the matter if it appears an impartial jury cannot be selected.
"All the time, the way a victim can be characterized can be helpful or harmful depending on the situation," Leunig said.
Shannon Prather can be reached at sprather@pioneerpress.com or 651-228-5452.
Arguing self-defense
To claim self-defense in Minnesota, the defendant must not have been the original aggressor. The defendant must have first declined to carry on the fight and have honestly tried to escape from danger. The defendant must then meet three conditions:
1. The killing must have been done in the belief it was necessary to avert death or great bodily harm.
2. The defendant's perception of the danger must be reasonable under the circumstances.
3. The defendant's decision to use force must align with that of a reasonable person, based on the perceived danger and the lack of other alternatives.
All three conditions must be met. The prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. 
