Following jury trial, special judge amends charge from involuntary manslaughter

Last updated: March 28. 2014 2:30PM - 3769 Views
By - aworrell@civitasmedia.com



Russell Edgar Nelson, a beloved tow truck driver and a long-time owner of Russell's Garage in Hillsville, was killed May 25, 2013 after loading a disabled vehicle on the cab of his rollback truck. Nelson had loaded the vehicle and was attempting to get into the cab of the rollback when he was struck by a vehicle on the shoulder of the road at the 5.5 mile marker of Interstate 77 North, just south of Fancy Gap.
Russell Edgar Nelson, a beloved tow truck driver and a long-time owner of Russell's Garage in Hillsville, was killed May 25, 2013 after loading a disabled vehicle on the cab of his rollback truck. Nelson had loaded the vehicle and was attempting to get into the cab of the rollback when he was struck by a vehicle on the shoulder of the road at the 5.5 mile marker of Interstate 77 North, just south of Fancy Gap.
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The man charged with involuntary manslaughter in the May 25, 2013 traffic death of Russell Nelson pled guilty Thursday in Carroll County Circuit Court to an amended charge of reckless driving.


Jesse Tang, of Rural Hall, N.C., was originally charged with involuntary manslaughter after his vehicle struck and killed Nelson, long-time owner of Russell’s Garage in Hillsville. Nelson was getting into the cab of his rollback truck after loading a disabled vehicle on the shoulder of the road at the 5.5 mile marker of Interstate 77 North, just south of Fancy Gap, that morning, when he was struck.


After a four-hour jury trial Thursday, Special Judge Colin R. Gibb of Montgomery County amended the charge from involuntary manslaughter to reckless driving. Tang then pled guilty to the charge and Gibb sentenced him to 12 months in jail, all suspended, with a two-year probation period. Gibb also fined Tang $2,500 and suspended his license for a year with no restrictions, meaning he can’t drive at all the next 12 months. Tang was also ordered to enter into and complete a VASAP program.


After pleading guilty, Tang also addressed Nelson’s family for the first time. Tang told the family he was sorry and very remorseful for what happened. He went on to say he wished he could trade places, that if he had the ability he we would let his life go and take the place of the man he killed if he could do it.


“He was devastated by it. Tears were shed. He was clearly overwhelmed by the whole situation,” said Jay L. Tompkins IV, Tang’s defense attorney. “I think he can live with that and it looks like the Nelsons can too, and everybody can move forward.”


After a full court day that included two-and-a-half hours of jury selection and four hours of a jury trial, Judge Gibb dismissed the jury for the day and ordered them to return Friday morning. After the jury was dismissed, Tompkins made a motion to strike the case.


“For involuntary manslaughter there has to be criminal negligence and the Commonwealth has to show his behavior was gross, willful and wanton disregard for human life, which is a heavier burden than a mere accident,” Tompkins said. “The mere fact that a person dies doesn’t give rise to the criminality of it. Negligence and criminal negligence are two different standards.”


Both Tompkins and Commonwealth’s Attorney Nathan H. Lyons cited case law arguing for each side of the case. Gibb originally told both attorneys to submit copies and he would review them overnight and make a decision the next morning. Gibb called both attorneys back into court within the hour, however, with the decision to amend the charge to reckless driving.


Testimony


Lyons called Virginia State Trooper Jessie Tilson to the stand as the Commonwealth’s first witness. Tilson was the first officer on the scene at approximately 8:47 a.m. He testified that Tang drove a Volkswagen 4-door and that he was present, along with Trooper Alderman, when Trooper Charlie Delp took a statement from Tang.


“I came around the curve with the cruise set,’” Tilson said, reading from Tang’s statement. “When I saw him, I hit the brakes and started to slow. The next thing I know I hit the gentleman.”


Tilson said Tang also stated his cruise control was set on 70 miles per hour. The trooper also testified that the distance between a curve and the site of the crash was “possibly two tenths of a mile.” He approximated it would take a vehicle traveling 70 mph about 10 seconds to travel that distance.


Tilson then identified several photos for Lyons. One was of a Virginia “Move Over” sign near the 1.5 mile marker of I-77 north, about four miles prior to the crash site. Damage to Nelson’s tow truck included the mirror, toolbox and fender well, he said.


The tow truck was parked on the emergency shoulder of the interstate, Tilson said, with the disabled vehicle already on the rollback. He testified Nelson’s body came to rest 169.4 feet from the crash site. He said damage to Tang’s vehicle included the front of the car, the windshield, the hood, the front fenders and doors.


After obtaining consent from Tang to search the vehicle, Tilson said he found glass in the passenger’s seat, an open glove box and a cell phone charger plugged in.


During cross examination, Tompkins asked Tilson if he took pictures of the scene when he first arrived.


“No. I checked the body for a pulse and told the other troopers what we needed to do. The body was in the road,” Tilson said. “That’s why I positioned my car as I did, to keep people from looking.”


Tompkins asked about the Move Over sign at mile marker 1.5, adding there are lots of signs on that stretch of road, including a Welcome to Virginia sign, speed limit signs, and a sign noting that radar detectors are illegal.


Tompkins asked Tilson if he recalled seeing any emergency lights flashing on the tow truck.


“I don’t recall,” Tilson said. “I was more focused on the victim.”


Upon redirect, Lyons asked Tilson what the speed limit sign said Tompkins inquired about earlier.


“Sixty-five miles per hour,” Tilson said.


Next, Lyons called Kimberley Dickens of Welcome, N.C. to the stand. She testified she was traveling to a family reunion with her husband and daughter. The car acted up and her husband pulled off to the emergency lane. She said her daughter called 911 and Russell’s Towing was sent to help.


Dickens said Russell Nelson looked at the vehicle and said he thought it was a water pump or timing belt issue. He then loaded the Ford Taurus and made sure it was tight. The family decided to ride in their car on the back on the rollback.


“The last thing that happened was he had gotten up on the running board. He had started to open the door and came back to where the toolbox is at,” Dickens said. “He was reaching up to make sure it was tight and that is when he was killed.”


She said she remembered the rollback shaking a little. Lyons asked if see saw Tang’s vehicle strike Nelson.


“I couldn’t tell what color it was, but as the car struck him he was thrown up in the air,” Dickens said. “He was just like a ragdoll being thrown, like somebody angry had thrown a ragdoll down the road.”


Dickens testified that she observed traffic and there was no traffic beside or behind Tang’s vehicle at the time of the accident. After the accident, she said she immediately jumped out of the car from on top of the rollback to see if there was anything she could do.


“He landed on his side and part of his pants were pulled down where he landed so hard,” Dickens said. “I wish I had something to cover him up with. There were people going by taking pictures.”


Dickens said she checked for a pulse and there was none. She said it was a long time, probably 5-10 minutes before the defendant showed up. Lyons asked about her interaction with Tang.


“He just looked and said, ‘I’m sorry,” she said. “Then a few minutes later, he said, ‘I didn’t even see the vehicle.’”


Lyons asked if she remembered any other details.


“He was flying,” Dickens said. “If I had to guess I would say he was doing 80 miles per hour.”


Lyons next called Dr. Gayle Suzuki from the office of the Chief Medical Examiner in Roanoke. She testified Nelson had fractures of the right femur, right and left shoulders, rib fractures on both sides, a pelvic fracture and a fracture of his neck and left ankle. Those injuries are consistent with being struck by a vehicle and were the cause of death, she said.


Next to the stand was Natasha Spangler of Lexington, N.C. She was traveling with her parents for a family reunion when the car motor blew up. She testified Nelson came in the tow truck to pick them up. She saw him load the vehicle and adjust the chains to make sure it was secure.


She said she was looking at him getting ready to open the door to the truck when he was struck. Lyons wanted to know what she could tell about the traffic.


“He was able to move over into a different lane,” Spangler said, adding she didn’t see any other vehicles behind him or in front of him, but there possibly could have been one in the far left lane.


After the accident, she said she jumped out of the vehicle and called 911, then went with her mother to check on Nelson, who didn’t have a pulse. She said the defendant showed up about 10 minutes later and said “I’m sorry.”


Spangler said she heard no sounds of tires screeching prior to the accident.


“I saw Mr. Nelson get hit and thrown, and his vehicle kept going,” Spangler said.


As far as emergency lights, Spangler testified Nelson’s tow truck had lights flashing, including the flasher on top.


“And I’m pretty sure he had his hazard lights on,” she said.


On cross examination, Spangler told Tompkins she was watching behind the scene at the time of the accident. Tompkins said her attention must have been focused on Nelson and not behind the vehicle.


“I did look behind me for an instant to buckle my seatbelt,” Spangler said. “At that point I did see a black car approaching from the rear.”


Lyons then called James Dickens of Lexington, N.C., who was with Dickens and Spangler when their car motor blew up traveling northbound on I-77 that day. After Nelson loaded the vehicle, Dickens said he saw Nelson step up on a running board and it looked like he was getting ready to open the door.


“I was staring right at him and the next thing I know he was gone,” he said. “Then I spotted him in the air.”


Dickens testified that the lights were flashing on the rollback. He testified that traffic had been getting over into other lanes prior to the accident.


Lyons then called Alan Vaughan, a crash reconstructionist with the Virginia State Police. Vaughan testified that he didn’t find any skid marks at the scene, though he did find a striation mark on the fog line that separates travel lanes from the emergency shoulder.


“It was on the right lane where the tire made a quick turn, and that is pretty much the point of impact,” Vaughan said.


Vaughan testified that Nelson’s body was carried approximately 170 feet. He measured the distance between Nelson’s body and where Tang’s vehicle came to rest as 481 feet, making total distance from point of impact to Tang’s car 651.5 feet.


Vaughan said there were three points of impact, the first impact shattering the lug nuts and flattening the rollback’s tire and bending the rim. The second impact was a fender well that sideswiped a toolbox on the tow truck.


“The third impact was Mr. Nelson,” Vaughan said.


During cross examination, Vaughan told Tompkins there were no skid marks of any applied brakes at all. But would there be skid marks if Tang had his cruise control set, Tompkins asked?


“He could have applied his brakes and started to slow up and there might be skid marks,” Vaughan said.


Vaughan said he did notice Nelson’s emergency lights were on when he arrived. Tompkins wondered if the first impact of the collision could have pulled Tang’s vehicle in toward the tow truck. Vaughan said he couldn’t’ answer that, but Tang wouldn’t have had time to react anyway.


Vaughan’s testimony differed from the three witnesses who said they saw Nelson thrown through the air. He said Nelson’s body was carried on the hood for 170 feet before coming off the hood.


At that point, the Commonwealth rested its case and Judge Gibb dismissed the jury. Tompkins then made his motion to strike the case. Lyons argued it shouldn’t be struck, citing examples of similar case law where criminal negligence has been found. He added that in this case, the defendant failed to follow Virginia’s Move Over Law and that he was also speeding.


“By his own admission he said, “I had my cruise set at 70 miles per hour and I saw him,” Lyons said. “Witnesses said he was not following the speed limit, he didn’t move over, and you heard testimony that he had 10 seconds.”

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