Judge rejects call to dismiss murder charge in Gary-New Duluth shooting case
A jury should determine whether Kevin Weiss' shooting death was the result of an intentional act or a tragic accident, Judge Jill Eichenwald said.
A Hibbing man must stand trial on a murder charge in the shooting death of his ex-girlfriend's partner during a confrontation outside a Gary-New Duluth residence in December 2018, a judge ruled this week.
Brian Ross Shaw, 36, is accused of gunning down a childhood friend , 35-year-old Kevin John Weiss, after exchanging a series of threatening messages via Facebook. Shaw, however, maintains that it was an accident, with his shotgun discharging after he dropped it when he was shoved by Weiss.
Shaw initially was charged with second-degree manslaughter and was set to stand trial in January, but St. Louis County prosecutors last fall added a more serious count of intentional second-degree murder, citing forensic evidence that allegedly contradicted Shaw's version of events .
Defense attorney Matthew Benfield disputed the new murder charge, arguing it should be dismissed for a lack of probable cause. He said Shaw had no reason to kill Weiss, describing the defendant as "distraught and traumatized" over the victim's death.
Court documents indicate that Shaw drove from Hibbing to Duluth on Dec. 10, 2018, after the woman kicked Weiss out of the house and he returned, acting erratically and breaking a window. Shaw told police that Weiss threw several items at him, including a metal box that he deflected with the barrel of his shotgun, in the yard of the Reis Street residence.
The defendant, who is said to have amyotrophic lateral sclerosis (also known as Lou Gehrig's disease), stated that Weiss continued to advance on him and refused his commands to stay back. He told police that Weiss eventually shoved him, causing him to lose his balance, falling over and dropping the gun, which accidentally discharged when it struck the ground.
But the Minnesota Bureau of Criminal Apprehension said subsequent testing of the firearm's capabilities showed that account to be impossible. The firearm reportedly would only discharge if the safety lever was manually moved to the "fire" position and the trigger was pulled. Ballistics also allegedly showed that Weiss was struck by shotgun pellets in a downward trajectory.
Nonetheless, Benfield maintained that Shaw did not act with intent to kill Weiss.
The defense attorney offered four alternate hypotheses that he said could be borne out by the evidence: that it was a "terrible accident," that Weiss coaxed Shaw into shooting him because he wanted to die, that the shooting was a justifiable act of self-defense, or that Shaw's actions amounted to culpable negligence, rather than intentional murder.
"This case does not involve multiple shots, the defendant did not flee the scene and there is no evidence that the defendant intentionally pointed the gun at Mr. Weiss," Benfield wrote in a brief.
But prosecutor Nate Stumme cited the forensic evidence, along with Facebook messages exchanged between the two men prior to the incident.
The argument apparently started the day before, when Weiss had placed a Bluetooth device in his girlfriend's car. It did not work and the woman asked Shaw to remove it; he did so and kept the device, Stumme said. The argument continued Dec. 10, apparently also involving Weiss' relationship with another woman.
Stumme said Shaw sent multiple threatening messages to Weiss, including, "I got my shotgun and I want to use it," in the hours before the shooting. At one point, when Weiss alluded to having a death wish, Shaw allegedly responded, "Good."
Sixth Judicial District Judge Jill Eichenwald sided with the prosecutor in finding probable cause for Shaw to stand trial on the murder charge.
"In asking this court to consider these alternate hypotheses, (Shaw) is asking this court to make determinations on his credibility and the weight of the evidence, which is the purview of the jury," Eichenwald wrote in an order Tuesday.
The judge scheduled a final pretrial hearing May 28. A trial date has not been set.