The closing arguments are upon us.
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Published: Aug 16, 2005
Modified: Aug 16, 2005 2:26 PM

By CINDY GEORGE, Staff Writer

RALEIGH -- It could come down to whether jurors believe the shots that rang out at a tailgate party sounded like this: Bang-bang.
Or like this: Bang. Pause. Bang.

That pause, no matter how brief, could determine whether jurors decide that Timothy Wayne Johnson intended to shoot Kevin McCann and 2nd Lt. Brett Harman -- or that he was simply responding to separate physical attacks by the victims.

The closing arguments in Johnson's double-murder trial Monday focused on that distinction. Forethought and planning are key factors in whether the jury will be compelled to find Johnson guilty of first-degree murder, guilty of a lesser offense, or not guilty.

Last Labor Day weekend Harman and McCann were killed in a tailgate area near Carter-Finley Stadium. The shootings came after Johnson's younger brother, Tony, had scuffled with the men and they had a second encounter -- with Timothy and Tony Johnson. The second meeting ended in gunfire and chaos.

Harman was a Camp Lejeune Marine who was soon to leave for Iraq, and McCann was a Chicago businessman. Both were 23.

Prosecutors said that Johnson acted with little regard for the consequences of his actions. Defense attorneys said he acted without thinking and shot only after he was provoked.

A 12-member jury will receive instructions this morning.

Johnson is charged with two counts of first-degree murder for shooting McCann and Harman at last year's N.C. State University football season opener.

On each count, the jurors will choose from four options: first-degree murder, second-degree murder, voluntary manslaughter, and not guilty.

Johnson, 23, has admitted he was the shooter but has pleaded not guilty. If he is convicted on either charge of first-degree murder, he faces life in prison or the death penalty.

All day Monday, four lawyers outlined an episode that took two lives, ruined two others and destroyed three families.

Wake Assistant District Attorney Jeff Cruden's mantra was that this is not a case of self-defense. He said Harman and McCann were heroes of a crowded tailgate scene, trying to protect people from Tony Johnson -- who was picking fights and driving erratically. Cruden said Tony Johnson then lured the victims back to Tim Johnson, leading them to a trap where he knew Tim had a gun.

He also said Tim Johnson's testimony that he was drunk and high, and his medical records outlining his attention deficit hyperactivity disorder, held "very little" weight.

In his 80-minute speech, Cruden said repeatedly: "The only thing necessary for evil to succeed or triumph is for good men to do nothing."

"They were good men. They weren't going to do nothing," he said later of the slain men. "Don't be swayed by sympathy for a young man who's done a terrible thing."

Next, the defense attorneys made back-to-back arguments.

Brad Bannon argued that Tim Johnson acted in defense of himself and his brother and said his capacity was diminished at the time of the shootings. He said those arguments were neither excuses nor "fancy lawyer tricks."

Rather, those factors left Johnson unable to plan and carry out murder -- something to which the defense's psychologist testified and something prosecutors did not rebut, Bannon said.

Bannon said Johnson shot Harman when Harman tackled Tony Johnson. Then, when McCann grabbed Tim Johnson, he shot again, Bannon argued, fearing that McCann would wrest the gun from him.

Defense attorney Joseph B. Cheshire V said responsibility for the shootings is shared between Tim Johnson and the victims -- both of whom had blood-alcohol levels above 0.08, the legal limit for drivers. He also said the victims took the law into their own hands, using a "violent attack" to stop the erratic behavior of Tony Johnson.

Cheshire said the victims didn't go when Tim Johnson said he would handle Tony and asked them to leave.

Cheshire said that Harman and McCann wanted a "sport fight," fueled by their "manly pride."

"Tony Johnson was an easy target," Cheshire said. "They weren't going to let that challenge go by."

Cheshire's appeal brought tears to Tim Johnson's face as his mother wept.

Wake prosecutor Susan Spurlin made the last argument, saying that Johnson was guilty of twice committing first-degree murder. She argued the shootings were "one continuous transaction" -- not two separate acts.

"They cannot be more interrelated," she said.

McCann's mother, Jane, dabbed her nose with a tissue and his father, Dennis, cried and wiped his face with a handkerchief.

Staff writer Cindy George can be reached at 829-4656 or cgeorge@newsobserver.com.
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Adam Gold is on his way to see the Justice of the Peace today. Let's hope he doesn't get caught up in the mayhem.

P-Out