Double Murder-Trial Whydunit Not Whodunit
HOLLIDAYSBURG, Pa. (AP) – In 2009, three months after he was discharged from the Army because of posttraumatic stress disorder from serving in Iraq, Nicholas Horner robbed a sandwich shop, gunned down two people in cold blood, wounded a third and put a fourth life in grave danger.
Those facts won't be in dispute when a Blair County jury hears opening statements Monday, which is why his trial will be less of a whodunit than a whydunit. And the jury’s answer to that question – why did it happen? – could put Horner on death row.
Horner’s family firmly believes his PTSD was fueled not just by his high-stress work clearing roadside bombs, but by images of children killed by artillery shells that cleared the way for his unit. That is the reason Horner, now 31, would have robbed a Subway sandwich shop in Altoona for $130 he didn't need.
Horner shot to death 19- year- old sandwich maker Scott Garlick and wounded another clerk on April 6, 2009. As he ran down the street, possibly searching for a getaway star, he killed 64-yearold Raymond Eugene Williams, who was out collecting his mail.
“I believe Nick just had a flashback and I don't believe Nick even realized anything he was doing,” said his mother, Karen Horner, 56, of Johnstown. “Because it's totally out of character for Nick to even say anything to hurt anyone's feelings.”
But prosecutors have told most potential jurors that they will argue that firing a gun at a vital body part is evidence of deadly intent. If jurors believe Horner intended to kill his victims, he'll be convicted of first-degree murder and face either the death penalty or life in prison.
If jurors believe that either his combat trauma or the beers he downed after an afternoon spat with his nowestranged wife before the robbery kept him from forming what's legally called a “specific intent to kill,” he's likely to be convicted of second degree murder or less. That ensures a life sentence at most.
“I told one juror earlier today, `Either way, Nick's coming out of that prison in a body bag,”' and it's a question of whether it will be at the end of his natural life or by lethal injection, one of Horner's lawyers, David De- Fazio, said during jury selection in January.
That jury was scuttled when another of Horner's attorneys, Tom Dickey, filed an 11th-hour state Supreme Court appeal seeking to overturn a county judge's order barring Horner from presenting a mental health defense. The court refused to consider the appeal, so the judge ordered that jury scrapped and a new one selected last week and lifted a stay delaying the trial.
Dickey acknowledges that anything less than a seconddegree conviction in Garlick's murder would be unusual. That's because second-degree murder is defined as any killing, regardless of intent, during the commission of another felony, in this case, the robbery.
Still, Dickey hopes to convince the jury that Horner is guilty of third-degree murder or perhaps even voluntary manslaughter.
“It's not a whodunit,” Dickey said. “But there will be mental health evidence presented that may negate his ability to form a specific intent to kill.” That is not the same as the mental health defense Dickey sought to use. That would have allowed the jury to acquit Horner of the killings altogether if they thought his mental state kept him from knowing right from wrong.
“We want to get them thinking this guy's not your normal, standard bad guy. He's more sick than bad,” Dickey said. “You try to get the jury to overlook the obvious facts and focus on, ‘Why did this happen?”‘
A minimum sentence of life in prison is about all Horner's defense can realistically expect, said death penalty expert and Duquesne University law professor Bruce Ledewitz.
The judge barred the mental health defense in part because even a defense expert said alcohol could have played a role, and, under Pennsylvania law, voluntary intoxication cannot contribute to one's innocence.
Despite that ruling, Ledewitz said Horner could still be acquitted of first-degree murder if the jury is convinced Horner was having a flashback or was otherwise influenced by a PTSD-induced fantasy.
In order to have a specific intent to kill, “I have to know that I'm shooting at you in this world and not imagine that I'm shooting back at an insurgent,” Ledewitz said. “That gives enormous discretion to the jury.”
And even if Horner is convicted of first-degree murder, the PTSD defense can still be used to argue against the death penalty.
“It all depends on what the jury thinks,” Ledewitz said. “If they believe it, that's one thing. But if they think he's faking, that's another.”
Horner's family is convinced he isn't.
Horner's wife has said he often cried and talked of suicide, hid a loaded weapon in couch cushions while watching TV, and sometimes attacked her in his sleep or insisted on going from room to room with a loaded weapon to “clear” their home of unseen enemies. In the months before the murders, Horner spent much of his time alone in the basement and had to be coaxed upstairs for meals or even to play or color Easter eggs with his children, she said.
Horner's family argues that the way he entered the store – by banging on a rear door until an employee let him in, rather than walking in the front – is eerily similar to the way he was trained to enter buildings in Iraq to flush out insurgents . What Horner was thinking is anybody's guess, as he claims to remember mostly a female Subway worker handing him money but otherwise recalled only bits of the day he was arrested, according to court records.
“I just remember I was Tasered, then I was riding in the back of the police car,” Horner told one doctor who examined him.
The victims' families, and some in the community, have blamed the media for focusing on Horner's condition and not enough on the victims. The families have since asked the district attorney's office to shield them from media inquiries until the trial is over.
Horner isn't speaking either, though he summed up his position in a letter to the Altoona Mirror newspaper less than two months after the killings.
“I'm not looking for forgiveness or simphy (sic). I just want people to watch for PTSD cases,” Horner wrote. “There are so many of them. This needs to stop!”