Appeals court overturns shooting conviction

Friday, July 7th 2000, 12:00 am
By: News On 6

TULSA, Okla. (AP) -- An Oklahoma appeals court has ordered a new trial for a man convicted of shooting and wounding a Broken Arrow teen-ager in a case that led to tougher sentences for gun assaults.

The Oklahoma Court of Criminal Appeals in a 4-1 ruling found numerous errors in Jason Filion's conviction of assault and battery with a dangerous weapon in the May 13, 1998, wounding of Brandy Thurmond. It let stand his conviction on carrying a concealed weapon.

"It's just like getting punched in the stomach," Thurmond's father, Craig Thurmond, said Thursday. "It just takes all out of you. You lose all your energy when you hear something like that."

District Attorney Tim Harris said he was very disappointed in the ruling but would not criticize the court.

"This is going to be a very, very difficult thing for this family to undergo a second time," he said Friday.

The court said Filion, 24, was denied the right to a fair trial and his conviction must be reversed for a new trial. In its ruling issued June 30, the court said the trial court erred in not instructing the jurors on the lesser charge of reckless conduct with a firearm and on accident. It said there wasn't enough evidence to sustain a conviction on assault and battery with a dangerous weapon.

The court also said reversible error was made when the prosecutor repeatedly made comments meant to prejudice the jury against Filion and that Filion's defense was ineffective. Vice presiding Judge Gary Lumpkin dissented, saying the evidence in the case only supported the lesser charge for which the jury was given instruction.

Prosecutors originally charged Filion with shooting with intent to kill. Thurmond was shot in the head while she and other teen-agers and Filion were gathered outside her home.

Filion told the district court he pulled a pistol from his pocket to scare a passing car and it discharged. Prosecutors argued that Filion intentionally pulled back the slide mechanism on the .380-caliber semiautomatic pistol and pulled the trigger while the gun was pointed at Thurmond's head.

Thurmond walks with a limp and faces long-term learning, speech and motor-skill difficulties and susceptibility to seizures, family members say.

The jury gave Filion a 10-year prison term and a fine of $10,000 in March 1999. Harris said that because the jury convicted Filion of the lesser charge of assault and battery with a dangerous weapon that will be what he must be tried on in a retrial.

"We don't start from square one," he said.

Harris said he was surprised by the appeals court's order that the court erred in not instructing the jury on accident.

"I guess they're saying, ultimately the jury also can be given the option that this shooting was an accidental shooting," he said. "I can't find any evidence that would justify that, but from their opinion I can only assume that is what they're asking."

Harris said a retrial would be held as soon as possible.

Gov. Frank Keating signed the Brandy Thurmond Act in June 1999 to create a mandatory 10-year sentence for an attacker convicted of using a weapon in a violent crime.