The nearly month-long trial of two Redmond men, accused in a Bend man’s fatal stabbing outside a Redmond bar last January, neared its conclusion Thursday, in the same unusual, hybrid fashion as it began: Closing arguments for one defendant before a jury, the other presented just for the judge.
That’s because Eric Barbee, 22, has been undergoing a jury trial on 22 charges, including murder and attempted murder, in the slaying of Nicholas Wade Setzer, 22, last Jan. 5 in the alley behind Sweetwater’s Bar and Grill around closing time, while co-defendant (and brother-in-law) Thomas Chesney instead will have his fate decided by Deschutes County Circuit Judge Michael Adler.
Before the trial began in early October, a third defendant, Ronald Gonzalez, agreed to against the others, if asked, in a plea deal with prosecutors that included an “Alford plea” — not admitting to the facts of the charges, but legally viewed as a conviction – on two counts of second-degree assault, for injuries to two others that night, and one count of second-degree manslaughter, for the injury to Setzer.
The two other defendants have been in custody since their arrest, but Chesney was freed in January, under house arrest and other conditions, after posting 10 percent of his bail. (See earlier bend.com story, bendbugle.com/?p=6495).
Several bags of evidence, mostly the defendants’ and victim’s clothes from the fateful night, sat on the courtroom floor on Thursday, the second day of apparently three days of closing arguments.
Jacques DeKalb, one of Barbee’s two attorneys, was continuing his effort to show a theory that Gonzalez, not Barbee, was wielding a knife that dealt the fatal wound to Setzer’s neck, as Barbee and Setzer were “grappling” with one another in the alley area behind the bar.
“Some of Nicholas Setzer’s blood was found on this (Barbee’s) coat,” DeKalb said, but “a very minor amount,” which he said is consistent with the notion that Barbee’s coat had been pulled off him (by Setzer).
DeKalb later explained that shadows in the alley that night would have made it difficult if not impossible for the witnesses to see the knife he believes Gonzalez used to conduct the stabbing.
State refutes defense contention
As it turned out, though dozens of witnesses and experts were called to the stand, Gonzalez was not called to testify, and only a portion of his police statement was read into the record.
Deputy District Attorney Brandi Shroyer acknowledged in her rebuttal, “We don’t know exactly when Nicholas Setzer was stabbed,” but said the blood evidence makes it most likely to have happened in the alley, as there was “arterial spurting” found on the adjacent wall.
She also said there’s “no evidence at all that Ronald Gonzalez ever had a knife,” but several witnesses saw Barbee pull a knife as he left the bar that night, using it to threaten several people. She said he could hold it with the knife blade pointing down, still able to punch and fight, then to stab Setzer in the neck in a downward motion, then in the thigh in an upward motion, as medical experts showed.
“Eric Barbee inflicted all of the stab wounds on the three different victims,” Shroyer said. “He had the knife, and he inflicted the stab wounds. … Not a single witness put a knife in the hand of Ronald Gonzalez” And she said the overwhelming witness evidence was that Setzer was on the ground, with only one witnesses supporting the notion that Barbee had been pummeled and pulled to the ground.
Several witnesses saw Gonzalez and Chesney flighting with Setzer by the Dumpster, Shroyer said, later noting that the blade of the broken knife found at the scene tested to have Barbee’s and Setzer’s blood on it.
The idea that “Ronald Gonazlez was a madman out there, stabbing people, and doesn’t finish the job makes no sense,” Shroyer argued, also refuging the defense claim of “some sort of conspiracy of silence” among the group that had gone to Sweetwater’s to celebrate Nicholas Fisher’s 21st birthday.
As she’s said since the start of the trial, Shroyer pointed to evidence that Barbee “wanted to stick or stab somebody,” and starts spouting obscenities at the bar, such as that he’s “going to kill the m—–f—-r.” And she said Gonzalez responded, “I’m there,” and that Chesney said, “I’ve got your back.”
The defense raised the issue of how Barbee’s knife blade of 2 ½ inches could cause a fatal neck wound 5 ½ inches deep. Shroyer pointed to medical experts’ testimony that “the tissue in the neck is soft and can be easily compressed.
“You have to think about what kind of pressure, anger and vengeance had to be behind Eric Barbee’s thrust into Nicholas Setzer’s neck to cause that kind of wound,” the prosecutor told the jury.
And she said the witnesses who came forward, including the bar employees, had nothing to gain and much to lose – noting at one point that Sweetwater’s later closed down. “They came in here and told you what they saw and heard,” she said.
While the defense claims “everybody was out to get Mr. Barbee,” Shroyer said, numerous witnesses saw him with a knife, and all described him as “rude, obnoxious, aggressive and finally, assaultive to the point of death.”
“Attitudes, words and actions – Eric Barbee had it all that night,” she said, adding that “the evidence showed that he committed every one of the 22 counts he’s been charged with. Find him guilty.”
Jury leaves as focus shifts to Chesney
Adler then excused the jury until Friday so he could hear the closing arguments in Chesney’s case.
Shroyer went first, claiming Chesney “went to help his brother-in-law,” Barbee in the altercation with Setzer, having gone to the bathroom while the others left, then rushing out, leaving behind his sweatshirt and credit card in the bar. And she said some witnesses reported he dove behind a car and hid when police arrived.
Chesney’s attorney, Patrick Flaherty, voiced an objection that led to more legal arguments when Shroyer said doctors had testified that Setzer could have received life-saving medical treatment, had Chesney not joined in the fight.
The defense lawyer called that “completely irrelevant” and said the state already had presented, at a hearing on a failed motion of acquittal, its theory of what happened – that Chesney was an accomplice who aided and abetted in the fatal stabbing by Barbee.
“There’s no provision in Oregon law for a person to be an accomplice to a reckless act,” only an intentional one, Flaherty said. But Shroyer disagreed, saying, “You can be an accomplice to something as minimal as reckless driving, by saying, `Go faster! Go faster!’”
Fellow Deputy DA T.J. Spear tried to convince Adler that the state had not precluded additional theories of the crime, but the judge listened to, then played in court previous discussion of the matter before making his ruling.
Flaherty, who called no witnesses for the defense in the joint trial, said, “All along, your honor, this has been about intentional conduct.” And he urged the judge to prevent the state from “coming in at this late stage” with a new argument about the crime: “It’s gamesmanship – that is what’s happening here, and the court should not tolerate it.”
Chesney’s attorney said during a break that he offered no defense witnesses sbecause “there isn’t anything to defend,” and called the state’s case a “travesty.”
Adler sided with the state on one issue and with the defense on another. “The state made very clear” the nature of the state’s case against Chesney, he said, basing its charge on “accomplice liability,” not on Chesney himself hitting and wounding Setzer “and delaying medical care that could have saved his life.”
But the judge said the state can argue that Chesney is guilty of mansalughter, if the court can find beyond a reasonable doubt that he was aiding and abetting Barbee in a “reckless act of extreme indifference to human life.”
Defense lawyer takes on state’s case
Flaherty, in his closing arguments, said the “only question” before Adler is, “Did Thomas Chesney act with a conscious objective to promote or facilitate a knife attack?” And that the judge must look at the evidence “not in the light most faborable to the state,” but in light of his own logic and common sense, as well as the “the law regarding self-defense.”
The defense lawyer said Adler must “find the state has proven beyond a reasonable doubt … that Eric Barbee did not act in self-defense,” and that Chesney didn’t either.
“I’d submit that several of the witnesses sat right up here (at the witness stand) under oath and lied about what happened at Sweetwater’s on Jan. 5,” and they weren’t mistakes,” Flaherty said.
He recounted the words of a witness who was riding with a Redmond police officer, who recalled Chesney saying, “I didn’t mean to be in there. I was defending myself. I was getting beaten up. I was trying to go home.”
Flaherty said Chesney wasn’t showing anger but was being cooperative with police, sitting down to talk with officers.
“Is that what a killer does?” he asked. “Is that an angry man? Is that what a gangster does?”
“Quite frankly,” Flaherty said, “it’s a ludicrous concept in this case, that you or any human being could find anything other than there was a bar brawl at Sweetwater’s, and somebody died.”
And the defense lawyer pointed to an allegedly contaminated crime scene and numerous items not introduced as evidence, to allege the state couldn’t prove its case, such as his client’s statement to police, video “walk-throughs” of the scene, and a blood test that he said would have shown his client was drunk, not on methamphetamine.
Regarding the police interview, Flaherty said, “They deprived you of that, because they know the evidence demonstrated Thomas Chesney’s innocence.”
“The state has not come close to proving beyond a reasonable doubt that Thomas Chesney was not acting in self-defense,” Flaherty said.