FORT SMITH -- The work supervisor of a man killed by police in 2009 was on the phone with him and heard him tell police he wasn't holding a gun moments before he was shot, he told a federal court jury in an excessive force trial Wednesday.
James Wiltse, manager of Ashley Furniture in Fort Smith where Eric Berry was a top salesman, testified Wednesday that he heard police officers yell at Berry to put his gun down and Berry respond that he "put it on the table."
Then-Fort Smith police officer Brandon Davis testified Tuesday that he shot Berry on Nov. 11, 2009, because Berry was pointing a gun at him and other officers, and he was concerned that Berry was about to shoot at them. A second officer on the scene that day, Rory Calhoun, testified Wednesday he also saw Berry pointing the gun at them.
Wiltse and Calhoun were two of seven witnesses who testified in the second day of the civil trial over allegations by Berry's widow and father that Davis used excessive force in killing Berry and that Fort Smith failed to properly train and supervise Davis, a failure that caused a violation of Berry's Fourth and 14th Amendment constitutional rights.
Wiltse testified that he talked to Berry twice on the day he was shot, once about 9 a.m. when Berry was supposed to be at work and again around 11 a.m.
In the first call, he said, Berry was angry with his wife, Connie, because she had gotten into his Facebook account and wrote that he was a drug dealer, drunk and a wife beater, and some store customers saw it and were upset.
When Wiltse called around 11 a.m., Eric Berry told him it was too late, that the police were outside the house. Video and photos of the scene shown to jurors Tuesday show Berry's cellphone on a plate at the dining room table where Berry was sitting when he was shot.
He said he heard silence then a loud noise, apparently the sound of something falling over and breaking, when Davis pushed open the front door. He then said he heard someone yelling for Berry to put the gun down.
"He said the gun was down, it's on the table," Wiltse testified he recalled hearing on the phone.
When he heard the voice tell him again to put the gun down, he said he heard Berry reply that he had a license for the gun and to get out of his house.
On cross-examination, jurors listened to the audio recording of Wiltse's interview with a Fort Smith police detective the day after Berry's shooting.
In that interview, the city's attorney, Colby Roe, pointed out that Wiltse never said he heard Berry say the gun was on the table, only that he yelled out that he had a license for the gun.
Wiltse said he then heard some loud noises and what he thought was Berry grunting. He didn't testify he heard the two shots Davis fired at Berry.
Connie Berry also testified Wednesday, saying she was commanded by Davis to open the door to her home for the officers but didn't want to because she was afraid the police would shoot her. She also said she didn't want her husband to go to jail.
She said she was concerned about Davis. When telling her to open the door, "His face tightened up. He was in a stance."
She said she felt she had no control of the situation with Davis standing in front of her and Calhoun and another officer, Brandon Lowdermilk, behind her.
"I felt like an animal with a pack of wolves around me," she said.
In a recorded interview with Fort Smith police detective Adam Creek later on the day Eric Berry was shot, Connie Berry said the events of the day had been building for six months.
She said Eric Berry had been on diet pills and steroids from a doctor in Roland, Okla., and painkillers and muscle relaxers from friends at work along with alcohol.
She said he became violent with her, throwing her against walls, kicking her and threatening her. He also threatened her son because he stood up for her, she said.
On the morning of his death, she said, he entered her bedroom about 7:15 and head-butted her twice while she was still in bed, then put a pillow over her face to smother her. She told Roe that she believed he was just trying to scare her, and she was not afraid he was trying to harm her.
She said she kicked him away, and he left the room. She went to the police station later that morning for help, although she said she didn't want Eric Berry arrested.
She returned home, but when she opened the front door, Berry was standing at the door pointing his .45-caliber handgun at her forehead, she said. She ran to a next-door neighbor's house and called 911. Davis, Calhoun and Lowdermilk showed up minutes later.
Also testifying Wednesday was Eric Berry's father, J.W. Berry of Broken Arrow, Okla.
He said as co-personal representative of Eric Berry's estate, he calculated nearly $1.37 million as the loss of the income his wife and two children could have expected him to earn during his life if he had not been killed.
At age 41, he said, actuarial statistics showed he could have been expected to live 41.38 years longer, with a working life of 37.4 years.
Testimony continues at 9 a.m. today.
Metro on 05/07/2015