Kenan Gay’s fate should be in the hands of a jury Wednesday, one day after the 12 members visited the scene of his reputed crime.
Gay’s second-degree murder trial – from its judge to its lawyers, clerks and jurors – spent 30 minutes walking through what they’ve read and heard about for the past month: the patio and parking lot in front of Ed’s Tavern in Dilworth.
It’s there, in a 41-foot rectangle of concrete, brick and asphalt, where Gay’s guilt or innocence may lie.
At 10:30 p.m. March 3, 2012, Gay came through the bar’s front door, pushing Robert “Robb” Kingston as he went. Seconds before, Kingston had tried to kiss Gay’s girlfriend. Now as they left the bar, Gay said he had his hands on the drunken man’s back and shoulder as the two moved from the patio down to the small parking lot off Park Road.
During hours of emotional testimony Tuesday, Gay said he let go of Kingston there, never intending to hurt him.
Witnesses, including Alan Cole, the bar’s owner, maintain that the 6-foot-4 Gay shoved the drunken Kingston into the street, where he was struck by a passing car. Gay then ran.
Tuesday, the 25-year-old law school graduate walked back into his onetime favorite bar for the first time since Kingston’s death. At 4:20 p.m., he climbed the wooden steps in the back, just as he had two years ago with his girlfriend, Liz Wicker, whom he later married. This time, he entered the bar with his attorneys, Superior Court Judge Forrest Bridges, two prosecutors, four sheriff’s deputies, court personnel and the seven women and five men who make up his jury.
Inside, where drafts were half price, Matt Berlin was drinking with four friends, the only active table in the darkened tavern. Then the judicial entourage filed in, and nobody spoke.
“Everybody knew about the case so we knew what was going on,” Berlin said later. “It was kind of weird. They had a lot of police officers with them. But other than that, they were all very professional. Everybody walked by. They did their thing.”
Almost immediately, the entire delegation duplicated Gay and Kingston’s route through the tavern, appearing at the front door, congregating in the parking lot, making notes, observing steps and slopes, viewing the scene from all sides.
Police had blocked off the surrounding streets, so several of the jurors walked out and stood where Kingston died. Three female jurors made multiple trips from the front door to the edge of the street. Each of them paused and gazed out at the asphalt.
“Any time you can come out to the scene, you get such a clearer perspective than from looking at pictures or reading about it,” said Assistant District Attorney Anna Greene, one of Gay’s prosecutors. “In some cases, it’s more important than others.”
Gay stayed inside and largely out of view. But his earlier testimony drew a standing-room-only crowd to Bridges’ courtroom and dominated the last day of evidence in the trial.
Over two days and for more than four hours, Gay sat in the witness stand and stuck to his version of events. He cried when he talked about Kingston’s death.
He said he was embarrassed and humiliated when he panicked and ran, leaving Wicker behind at the bar.
But he said repeatedly that he was not angry or jealous when Kingston hit on Wicker again and again during the night. When he saw Kingston grab her and try to kiss her, Gay said he did not want to fight Kingston. Instead, his only thought was “to get him off of her.”
Defense attorneys David Rudolf and Sonya Pfeiffer then showed the packed and silent courtroom video footage taken inside the squad car after Gay’s arrest. Jury members saw a ghostly silhouette of Gay, alone in the cruiser’s back, his high-pitched sobs spilling over into the courtroom. In a second video, which Bridges blocked the jury from seeing, Gay recited the Lord’s Prayer again and again.
Why were you praying? Rudolf asked.
“Someone or something needed to be prayed for,” Gay said, his voice breaking.
“Were you praying for everybody involved?” Rudolf asked.
“Yes,” Gay replied.
In an hour and 15 minutes of cross-examination, Assistant District Attorney Jay Ashendorf challenged Gay’s version of events.
He homed in on how for more than an hour, neither Gay nor Wicker had complained to the bar owner or bouncers about Kingston’s behavior and how Gay had largely ignored his girlfriend for most of the night, spending time instead horsing around with his law school classmates.
In one key moment, the prosecutor played surveillance video of the attempted kiss that showed Kingston had left Wicker and was at least two strides toward the front door before Gay reached him.
Gay had earlier testified that Kingston was still clutching his girlfriend or only inches from her when he grabbed him. After watching the video, he admitted that he had been wrong.
Ashendorf bore in.
If your memory was wrong there, why should the jury believe what you say about when and where you took your hands off Kingston in the parking lot?
The questions kept coming. When you ran away from the bar, Ashendorf asked, did you think about Liz? Did you wonder if there was anyone back at the bar to take care of her?
No, Gay said, he had not.
Citing a lawsuit filed against Gay by Kingston’s parents, Ashendorf wondered whether Gay would lie to avoid losing hundreds of thousands of dollars in damages. Since Gay could be sentenced to up to 16 years, the prosecutor followed, would he lie to avoid prison?
No, Gay said, he would not.
In the trial’s final exchange, Rudolf came back to that point.
Given the way you were raised, he asked his client, “If you had done wrong, would you lie to those jurors after putting your hand on that Bible?”
“That’s not who I am,” Gay responded.
Ashendorf had the last word.
“Were you raised to run away from the scene of an accident?” he asked.
“No, I wasn’t,” Gay said.