KY - "Mildly retarded" hunter gets 15 years following shooting
Knox man gets 15 years following shooting
McDonald accidentally shot hunting partner; sentence comes from
possessing a firearm as convicted felon charge
The Times Tribune, Corbin, KY
7/29/08
By Brad Hicks / Staff Writer
A Knox County man was sentenced in United States District Court in
London Monday to 15 years in prison for possessing a firearm in the 2007
accident that killed his hunting partner.
Jimmy Ray McDonald, 48, of Gray, was arrested in October 2007 and
charged with possessing a firearm as a convicted felon. The charges stem
from an incident that occurred on Oct. 14, 2007 in which McDonald shot
the man with whom he was hunting.
According to an affidavit signed by Thomas Chittum III, a special agent
with the Bureau of Alcohol, Tobacco, Firearms and Explosives, Knox
County Sheriff’s Deputy Roy Gambrel arrived at the scene in the Bailey
Hollow area of Knox County. There, he found McDonald and Michael Myrick,
the victim’s father and McDonald’s best friend, trying to provide aid to
20-year-old Brian Myrick, who had suffered a gunshot to the side. Myrick
was transported to the hospital and later died as a result of the
gunshot.
Also according to the affidavit, McDonald told authorities in a
post-Miranda statement that he had accidentally shot Myrick with a
.22-caliber rifle after mistaking him for a squirrel. McDonald said
after he shot what he believed to be a squirrel, he heard Myrick yell
that he had been shot, and McDonald went to seek help. Police determined
the shooting was accidental.
In October 2007, McDonald was indicted on one count of possession of a
firearm by a convicted felon and one count of forfeiture of the firearm
which was in his possession at the time of the hunting accident. In
January, McDonald pleaded guilty to both counts on the indictment.
According to court records, McDonald was convicted in 1981 for theft by
unlawful taking over $100 and convicted in 1982 for second-degree escape
and third-degree burglary. He was also convicted in 1983 of being a
felon in possession of a firearm, and in 2000 was convicted for driving
a motor vehicle while his license was revoked or suspended for driving
under the influence, the affidavit stated.
At Monday’s sentencing hearing, McDonald’s attorney, Douglas Benge, said
McDonald has exhibited genuine sympathy for what occurred.
“Since I’ve met him in jail, he has cried virtually every single time
with the exception of the last couple of times,” Benge said.
Benge also mentioned McDonald’s poor upbringing in a remote area of Knox
County before asking for the minimum 180-month (or 15-year) sentence.
Benge said McDonald was forced to leave school at an early age, is
illiterate, had been living on less than $600 a month and had been
diagnosed as being mildly retarded.
“I just look at that and say ‘my God, he is in podunk Kentucky ... he
has no way out,’” Benge said.
An emotional McDonald also addressed the court, saying he did not
mistake Myrick for a squirrel, but rather fired at a squirrel and struck
McDonald, whom he did not see. He also said he was hesitant to go
hunting to start with.
“If I could have died to save the boy, I would,” McDonald said. “The boy
was more than just a friend. He was my nephew. If I could change
everything, this would have never happened. I would have never went
hunting. I just wish I could change things.”
Assistant United States Attorney Samuel Dotson said that while the
outcome of the hunting incident was tragic, it could have been avoided
if McDonald had followed the law.
“However, the fact remains he possessed a firearm when he wasn’t
supposed to,” Dotson said.
Benge objected to McDonald being sentenced under the Armed Career
Criminal Act, which would enhance his sentence due to prior convictions
for “violent felonies,” referring his 1981 and 1982 convictions.
Benge argued that these previous convictions should not be considered
violent felonies because the burglary conviction pertained to McDonald
stealing tools from an unoccupied outbuilding. As for the escape
conviction, Benge said McDonald threatened no one when he walked through
an unlocked door while previously incarcerated.
“My understanding is this gentleman was a trustee and had certain
privileges other inmates did not,” Benge said.
United States District Judge Danny C. Reeves overruled these two
objections, saying that with such crimes, the possibility for violence
exists.
“There’s an inherent serious risk to law enforcement and the community
as far as escape,” Reeves said.
However, Benge’s objection that the firearm was not possessed in
commission with any other criminal act was sustained. Benge said
McDonald had never been indicted on charges of reckless homicide.
“I haven’t satisfied myself that that gives rise to criminal
culpability,” Reeves said. “Without more, I just have a hard time making
a conclusion here.”
Before Reeves handed down a 180-month sentence, followed by a five-year
supervised release, he emphasized to McDonald that he was being
sentenced for possessing a gun while not being legally allowed to do so,
not because of the death of Myrick. McDonald was also ordered to forfeit
the firearm he was in possession of at the time of the shooting. Reeves
did take into account what he called a “significant” criminal history.
“This is a tragic case, there’s no doubt about that,” Reeves said. “The
facts of this case are unfortunate. It’s a tragic accident, but it’s one
that didn’t need to occur. While tragic, it could have been avoided if
you had not possessed the weapon.”
