Defense Rests In N.C. State Tailgating Trial

Timothy Johnson, 23, of Tarboro, is charged with two counts of first-degree murder in the Sept. 4, 2004, shootings of Kevin McCann and 2nd Lt. Brett Harman, a Camp Lejeune Marine. Both victims were 23 and from the Chicago area.

His younger brother, Tony Johnson, also is charged with murder and has a trial scheduled for October. Each brother could receive the death penalty if convicted.

In court Thursday, experts for the defense and prosecution offered very different opinions about Timothy Johnson's mental capacity.

"In my opinion, Tim Johnson lacked the capacity to form the specific intent to murder Brett Harman," said psychiatrist Dr. Moira Artigues, a witness for the defense.

But Dorothea Dix psychiatrist Dr. Nicole Wolfe, who examined Timothy Johnson at the request of the state, said she believed the suspect could form the specific intent to kill.

"Particularly in this case, there was not just one victim, there were two," Wolfe said.

At issue is criminal intent -- which is standard for first-degree murder. Without it, the jury can only find Timothy Johnson guilty of only a lesser degree of murder or not guilty.

"I do not believe that he had the capacity to carry out and plan the murder of Kevin McCann," Artigues said.

"He got a gun," Wolfe said. "He pointed it at the victim and fired. He told me he knew the GLOCK had cop killer bullets in it."

The defense contends that Timothy Johnson is impulsive due to a rough home life, a learning disability and substance abuse.

"He was scared to death," Artigues testified. "There was a great deal of fear. There was also anger, frustration at not being able to get things to stop."

On Wednesday, defense witnesses testified that Timothy Johnson acted impulsively out of an urge to protect his younger brother.

The shootings happened during a seconds-long fight in a tailgate area near Carter-Finley Stadium. Harman was shot when he tackled Tony Johnson, and McCann was shot when he grabbed Timothy Johnson.

Timothy Johnson described the fight in his own testimony Tuesday, saying he fired the gun because he was afraid for his brother and did not intend to kill anyone.

Dave Cloutier, a use-of-force expert called by the defense, testified Wednesday that decisions to use force can be influenced by drugs, alcohol or fear.

He said Timothy Johnson's actions were triggered by the presence of multiple individuals in the victims' group, profanity, boisterous conduct, perceived physical ability and the confining environment.

Cloutier also said the way Harman and McCann approached the brothers' tailgate area -- crouching, posturing and positioning in techniques similar to those they may have used as high school and collegiate wrestlers -- could be interpreted as pre-attack moves.

But prosecutor Jeff Cruden suggested in cross-examination Wednesday that Timothy Johnson did not tell Cloutier the truth about the day of the shooting, and that he himself exhibited the pre-attack cues Cloutier described.

Forensic psychologist Roger B. Moore Jr. testified that Timothy Johnson shot Harman to protect his brother, and impulsively shot McCann. He said he did not believe Timothy Johnson was able to form a specific intent to kill either victim.

He also said Timothy Johnson's marijuana use and attention deficit hyperactivity disorder undermined his "flexibility of problem-solving," while his rational thoughts and impulse control were hampered by the fact that he had been drinking.

Prosecutor Susan Spurlin reiterated that Moore relied on Timothy Johnson's version of what happened, and noted that, on a personality test, Johnson scored higher on aggression and repressed anger indicators.

Family members of the victims have watched the entire trial from the audience in the courtroom. They believe Timothy Johnson knew what he was doing and should be held responsible for his actions.

"His entire life has been a collection of bad mistakes and I'm just sorry Brett and Kevin came across this kid," Rob Harman, Brett Harman's brother, told a throng of television reporters Thursday.

Closing arguments are expected Monday. The jury could begin deliberating as early as Monday afternoon.

Log on to WRAL.com Monday, Aug. 15 for live coverage of the closing arguments in the Timothy Johnson trial. Or watch live on the WRAL NewsChannel beginning at 9:30 a.m. Tune in to digital cable channel 256 or over the air at 5.2.