The Austin Chronicle

UPDATED: Driver Says He Heard Shots, But Didn't See Police

By Jordan Smith, June 5, 2013, 12:58pm, Newsdesk

UPDATE: Under pointed cross-examination, Leyumba Webb testified that if someone had been standing in front of his car on the night of May 30, 2011, at the time he pulled away from the curb, that person could've been injured. "Probably," he said, "but I didn't see anyone standing there."

But that wasn't the question, Robert Icenhauer-Ramirez drilled back at Webb, now 18. The question was would that person have been in danger.

That is among the questions at the heart of the defense to the federal civil rights case brought against APD Officer Nathan Wagner for the shooting death of Byron Carter that night, which is being tried this week (and part of next week) in federal court: Were Wagner's action, firing into the moving car, objectively reasonable if he believed he and his partner were in danger of being run over?

Icenhauer-Ramirez has challenged every aspect of Webb's story, pulling out inconsistencies in his timeline. Nonetheless, Webb remains firm in his assertion that he did not intend to hit anyone and that he did not see anyone standing near the car before he began pulling away from the curb. After he heard his friend Carter tell him, frantically, to "go" (see below) he did so, glanced toward the right where saw something dark, then heard shots being fired, he maintains. It was "go, glance, shots, and blank out," he testified.

From there Webb said he drove "back streets" trying to get help. Asked by Icenhauer-Ramirez why he didn't go to APD HQ, just across the highway, or to Brackenridge Hospital, just roughly four blocks away, Webb said he wasn't thinking clearly. After you've been shot at, he said, "your head's not even going to be thinking right."

Webb ditched the car several blocks away, on Olive Street, and continued moving North on foot. He tried to get several people to help him – including passengers in a car who he apparently told he'd been robbed – but no one came to his aid. He finally laid down on the ground, bleeding, outside UT's Disch-Faulk Field. There he said he was eventually asked by paramedics whether he'd been shot. He testified that he told them yes, but nothing else. Icenhauer-Ramirez challenged him on that point; presumably, he has a witness to contradict Webb's account.**

Judge Lee Yeakel released everyone to lunch at noon and Webb will continue to testify this afternoon.

Meanwhile, in other developments, Icenhauer-Ramirez's bid to put into evidence via Webb information that a bag of crack had been found behind where he ditched the car on Olive – with the dead Carter in the passenger seat with a moderate amount of cash in his lap and on the floorboard – was denied by Yeakel. Icenhauer-Ramirez wants the evidence admitted as a means of furthering the defense theory that Webb and Carter did see cops standing next to their car while they were still parked and then fled the scene because they had drugs, and cash from drug deals, in the car.

Yeakel said that the fact that cash was in the car was already in evidence, but later denied Icenhauer-Ramirez's attempt to suggest that Carter or Webb had made that money selling drugs Downtown the night they were killed. And he denied completely the ability to introduce, at least for now, any reference to the cocaine. Indeed, Adam Loewy, who is representing Carter's family in their suit, noted that there is no evidence putting the drugs in Webb's hands – and the teen was never charged with any crime in connection with the events of that night, he said. Yeakel concluded similarly, ruling that speculation about the cocaine was "too remote," with nothing linking it to Webb, and that to allow it in would be prejudicial to the Carter family's case. "The cocaine's out," he said, "the money's in."

Finally, in brief testimony this morning, Rachel Davila, who lives in the apartment complex on East Eighth just next to where Webb and Carter were parked and where the shooting took place, testified that she heard yelling that night followed by gunshots. When she looked out her fourth floor window to the street below she said she saw several figures that she could not make out and saw "fire" coming from a gun. She could not recognize any of the figures as police officers, she said.


Leyumba Webb was leaning back in the driver's seat of his girlfriend's car and looking slightly up, letting the air conditioning cool his face and chest, when he heard his friend, Byron Carter, tell him to "go," he testified in federal court this morning. "All I remember is hearing, 'go,'" he said. "'Go,' like we were in danger...we were in danger, sir."

Moments later, as Webb tried to navigate the car out of the parallel parking spot on East Eighth Street where he was parked, gunfire rang out. "I just went, sir," he said during questioning Wednesday morning as part of the civil rights suit brought by Carter's family against Austin Police Officer Nathan Wagner who fired five rounds into the car that night. Wagner said he did so to stop the car, which he believed had hit his partner, Jeffrey Rodriguez. One shot, the first, hit Webb in the right arm; four bullets struck Carter – including in gut, thigh, and back of the head – and he died.*

At issue is whether Wagner used excessive force that night, violating Carter's civil rights and resulting in his wrongful death. Wagner maintains that his force was "objectively reasonable" in light of what he perceived as an imminent threat to his, and his partner's, life.

But Webb testified today that he never did see Wagner, who was standing to the front of the car, in the street; Rodriguez was a few paces ahead and further into the street, but roughly parallel with the passenger side door, according to diagrams of the scene shown to jurors. He'd never been shot at before and he was scared, he testified. "I blanked out" and started driving away, he said, but he didn't see anyone near the car – nor did the car hit anyone, he said. "No, sir, not at all."

*A previous version of this post incorrectly stated that Webb had been shot in the left arm. In fact, it was hit right arm that was hit, he testified today.

**A previous version of the post read that Icenhauer-Ramirez might have an EMS witness to contradict Webb's account. In fact, it appears that the lawyer wanted to be able to introduce into testimony statements that Webb's mother may have made to APD Chief Art Acevedo while at the hospital after her son was shot. Yeakel declined to allow that since neither Webb nor his mother are party to the suit and any statement she might have made would have no bearing on the claims raised by Carter's family.

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