Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, January 19, 1995 TAG: 9501190085
SECTION: CURRENT PAGE: NRV-9 EDITION: NEW RIVER VALLEY
SOURCE: KATHY LOAN STAFF WRITER
DATELINE: CHRISTIANSBURG LENGTH: Medium
Judge Ray Grubbs agreed and found Jerry Wayne McIver guilty of involuntary manslaughter.
McIver, 37, was charged with second-degree murder after Terry Lee Elswick died from head injuries sustained in a fight at Elswick's mother's home. Elswick was 31.
During his bench trial in October, McIver pleaded not guilty, and testified his friend's death was an accident that happened after McIver pushed Elswick away from him as they struggled.
The murder charge was reduced to involuntary manslaughter but a finding of guilt or innocence was delayed until Wednesday.
McIver's attorney, Robbie Jenkins of Radford, tried to convince Grubbs that McIver's actions were in self-defense and not aimed at causing Elswick's death - and that he should not be convicted of any charge.
It isn't who started the fight that matters, Keith said, but how it developed.
"When there is mutual combat and someone is slain contrary to the wishes of the person charged, that is involuntary manslaughter. I don't think Mr. McIver in any way, shape or form meant to do serious harm to Mr. Elswick," Keith said.
Grubbs sentenced McIver to 12 months in jail. McIver, who has been jailed since his arrest, has already served that time and was released Wednesday.
Elswick, McIver and other friends were together for several hours last January, drinking liquor and playing video games in a Christiansburg trailer park off Roanoke Street, according to testimony during the October trial.
The fight happened, according to witnesses, when Elswick came out of the bathroom and saw McIver holding a hunting knife to a friend's throat. McIver had been showing off the knife - a gift from Elswick's mother - and was horsing around with it, according to testimony. But Elswick apparently viewed the scene as much more threatening.
Jenkins argued that McIver only began fighting with Elswick after Elswick became angry, used foul language and began shoving and hitting McIver.
"This is not mutual combat," Jenkins said. " ... He is very upset about this. These men were all friends."
Grubbs said he took McIver's obvious remorse and lack of intent into account when deciding the case, but he believed McIver should be found guilty of manslaughter in the incident.
Now that McIver has served one year in jail, Grubbs told him he hoped he could begin to "address really what has brought on most of your problems, and that is alcohol."
"I'm sorry this whole thing happened," McIver replied.
by CNB