For the week of November 7 - 13, 2001

Man cleared in 
shooting incident

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By GREG MOORE
Express Staff Writer

Apparently accepting a claim of self-defense, a Blaine County jury last week acquitted a local man of all charges stemming from an altercation at the Carey hot springs last March, during which he fired 10 rounds from a semi-automatic rifle.

Brian W. Tempel, 37, a resident of West Magic, had been charged with two felony counts of aggravated assault with a deadly weapon. The jury was also given the option of considering an alternative misdemeanor charge of exhibiting a deadly weapon in a threatening manner.

The jury, consisting of 10 men and two women, delivered its verdict Thursday, at the conclusion of a three-day trial.

Evidence in the case consisted primarily of testimony, much of it contradictory, from Tempel and the alleged victims, Steven John, 24, and Vernon Walczak, 29. Tempel admitted that he fired the shots, but said he fired high over the alleged victims’ heads to scare them off after they threatened him and threw rocks at him.

Blaine County Deputy Prosecutor Marilyn Paul told the jury that Tempel acted out of anger, not fear.

"His ego was bruised and he got out the big equalizer," she said.

According to testimony from witnesses, the altercation began after a large husky-type dog, belonging to another party at the hot springs, attacked Tempel’s brown Lab as they walked down to the pools from U.S. Highway 20.

Tempel drove the husky off, then demanded to know who the dog’s owner was and why no one was breaking up the fight between the two animals. Walczak said Tempel "was yelling obscenities, saying he would kill the dog, he would kill the guy, repeatedly."

Jenny Ottley, who had accompanied John and Walczak to the hot springs, said that when she objected to Tempel’s behavior, he called her a "motherf---ing bi---." She said she got out of the pool, walked up to Tempel and pushed him, fully dressed, into an adjacent pool. Tempel testified that Ottley also punched him in the face, a contention she denied.

Tempel testified that John then threatened to "kick his butt." He said he got out of the pool and started walking back to his truck, swinging a radio he was carrying at John as he passed. He said that either John or Walczak then threw a beer bottle at him, just missing his head, and began to chase him and throw rocks.

John contended it was Tempel who made the first threat to fight, "so I got in his face and told him to leave or he was going to get his ass kicked." Both John and Walczak denied having chased Tempel or having thrown anything at him while he was leaving.

However, Tempel said he feared for his life by the time he reached his truck. He said he told John and Walczak to back off and that he had a gun. He said that when they kept on coming, he pulled out a Norinco SKS assault rifle, which he used to hunt coyotes and regularly carried in the truck. He testified that he twice yelled, "I’m not kidding. I’m going to f---ing kill you." He said he fired 10 shots from the rifle in the span of about six seconds, aiming into the air.

John and Walczak, however, said the shots hit the ground about 10 feet from where they were standing, about 40 yards from Tempel, and about halfway between the parking area and the hot pools. They said they ran behind large rocks when Tempel began firing.

When asked by Paul if he was afraid, Walczak said, "Yes, I was—very afraid. I’d never been in a situation like that before. Feelings of—just death."

Immediately after the shooting, the alleged victims used a cell phone to contact the Blaine County Sheriff’s Office.

Deputy Matt Springer testified that he received a message about the call while in Carey. He said he headed toward the hot springs and saw Tempel’s truck driving toward him. He said Tempel pulled off the road even before he had turned his overhead lights on.

Springer said he took out his gun when approaching the truck, and that Tempel was not fully cooperative with the directions he gave him. Several jurors reacted visibly to Tempel’s obscenity-laced responses to Springer’s orders, contained in a tape of the encounter made by Springer and played in court.

Springer said he took statements from Tempel and from Walczak, who arrived at the scene shortly after Tempel pulled over. He said Tempel was placed under arrest and taken to Blaine County Jail.

The owner of the husky involved in the dog fight could not be located to help resolve contradictions in each side’s story.

Defense attorney Brian Elkins said he was pleased with the trial’s outcome.

"I think that the jury obviously had some problems with the credibility of the state’s witnesses, and they found Brian’s story more credible."

The prosecution witnesses’ version of events was undermined by the fact that jurors were informed that Steven John had four felony convictions—three for grand theft and one for residential burglary. By court order, the jury was not to be informed of two additional facts—that John was on parole at the time of the incident and that one of the conditions of his parole was that he not drink alcohol. Both John and Walczak maintained they were drinking cans of Coca-Cola at the time of the incident, while Tempel claimed they had bottles of beer in their hands, one of which was thrown at him.

Testimony about John’s parole came out during the trial, however, when Elkins asked Tempel what motive he thought the prosecution’s witnesses might have to lie about what they had been drinking. Tempel responded that John might have been trying to cover up a parole violation.

Judge James May halted Tempel’s testimony at that point, and cited him for contempt of court. However, he denied prosecutor Paul’s motion for a declaration of a mistrial, and instead ordered the jury to disregard Tempel’s statement.

The not-guilty verdict may have reflected the difficulty faced by the prosecution in proving its case beyond a reasonable doubt when it had little solid evidence to offer, but relied on testimony contradicted by the defendant.

One piece of evidence presented to the jury was a photograph of tire tracks at the site, indicating the rapid departure of a vehicle from a point where Sgt. Ron Taylor said he found 10 shell casings on the ground. Tempel told jurors that his truck had been parked facing west, and that he had grabbed his rifle in haste from the passenger side to protect himself when he reached the truck. Walczak, John and Ottley, however, maintained that the truck had been parked facing east, and that Tempel had taken the rifle from the driver’s side.

The photograph showed the vehicle to have pulled away heading east.

 

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