Who fired first in Kenly is disputed

A shotgun shell was found. But witnesses had said the victim never fired at a deputy

SMITHFIELD -- Investigators seized a spent shotgun shell from the home of a Kenly man who was fatally shot there by a Johnston County sheriff's deputy late last month. An attorney for the dead man's family says this doesn't prove who fired first.

A search warrant returned Tuesday by the State Bureau of Investigation lists the empty casing, left after a gun is fired, along with a Mossberg 12-gauge shotgun, an unfired shell and other items. The search warrant also said Deputy Sgt. J.K. Garner fired the shot that killed Reggie Witcher, 54, from the front porch of the home after Witcher fired at him from inside about 9 p.m. Nov. 22.

The finding of the lone shotgun shell appears to bolster the account by sheriff's officials that Witcher fired the 12-gauge at Garner and another deputy from inside his home before Garner returned fire, killing him. But Wayne Mooney, a neighbor who was at Witcher's house that night, has said Witcher never fired the shotgun; instead, Witcher was going to put the gun away when he was fatally shot, Mooney said.

A Raleigh lawyer hired by Witcher's family to investigate the shooting said the spent shotgun shell doesn't prove Witcher shot at the deputies. Attorney Richard Hunter said Witcher kept the shotgun for hunting and home defense and sometimes shot the weapon at a target in the backyard of his home in a rural area outside Kenly.

"He had shotguns for protection," Hunter said. "He wanted to make sure his home was safe."

Also, Jenny Mooney, the neighbor whose injuries prompted the initial 911 call answered by paramedics that night, found a spent shotgun shell in the yard earlier that day, Hunter said.

It is not clear from the warrant whether the casings were found in Witcher's home or elsewhere on his property.

Tapes of calls to 911 released Tuesday show Garner and Deputy A.J. Case went to Witcher's home on a Saturday evening after EMS workers answering a call there reported a woman had been assaulted and someone at the scene had a gun.

Earlier that evening, Wayne Mooney called dispatchers when his wife fell down a set of steps outside the home and could not be roused. The Mooneys had gone to the home to celebrate the birthdays of Reggie and Belinda Witcher, Mooney said in an interview the day after the incident.

Mooney was recorded calling 911 at 8:22 that night, slurring his words while telling the dispatcher his wife had fallen and was barely breathing. He said that the group had been cooking a pig and drinking that day.

The EMS crew that responded called for backup from deputies, saying "a large, belligerent crowd" at the Witcher home was "extremely intoxicated."

Just after 9 p.m., Case, the sheriff's deputy, told dispatchers that a man had been shot in the head and that an officer had been shot. Garner then radioed he had not been badly wounded. The search warrant said he was hit in the face by glass and debris from the shotgun blast.

"No pulse, no breathing," Garner said of Witcher.

The deputies also asked for an EMS crew to return to the scene, which appears to contradict statements by a Sheriff's Office spokeswoman that paramedics were still at the Witcher home when shots were fired.

Hunter said Belinda Witcher, 51, arrested for interfering with a police investigation, was handcuffed and thrown on the driveway, suffering bruises to her right elbow and left cheek. She spent the night in jail unsure of what had happened to her husband, Hunter said.

The tapes of the two 911 calls were released under the order of Superior Court Judge Tom Lock, who had sealed them last week at the request of Johnston District Attorney Susan Doyle.

The Sheriff's Office has refused to respond to further questions about the incident, citing the ongoing SBI investigation -- routine for cases in which officers use deadly force.

Garner and Case are on administrative leave with pay pending the outcome of that investigation.