The charges against a former Alabama middle school teacher and military veteran were upgraded from manslaughter to capital murder in connection to the death of an 11-year-old boy who was shot dead during a hunting trip in May.
Joshua Stewart Burks, 36, of Mobile, Alabama, shot and killed 11-year-old Troy Ellis on May 1 and injured Ellis’ father, local football coach Obed Ellis, who was treated at the scene and survived, according to local police. They were all part of a small party that went into the woods that Friday to hunt turkey, the Jefferson County Sheriff’s Office said at the time.
An Alabama grand jury heard the case on Dec. 10 and upgraded the charge against Burks to capital murder of a person under the age of 14, AL.com reported. Burks, who had previously posted $15,000 bond, was booked back into the Jefferson County Jail on Dec. 18, then released that evening after posting a $60,000 bond, according to the outlet.
A U.S. Marine Corps veteran and amputee, Burks taught at a middle school in Mobile County until he lost his job after the shooting incident.
The hunt day took place on Ellis’ land and the group consisted of him and his boy, Burks, and a third man, according to AL.com, which reported that the excursion was organized by a group that sponsors hunts for wounded veterans. The elder Ellis was acting as a guide that day.
A wrongful death lawsuit against Burks and Kyle Eugene Henley, who works with the nonprofit hunting organization America’s Heroes Enjoying Recreation Outdoors, was filed by the Ellis family in July and settled in October, AL.com reported. Among the suit’s claims is that Burks had taken numerous pain pills the night before and morning of the shooting and was “likely not capable of safely handling a firearm and certainly was not capable of making appropriate decisions with regard to handling a weapon.”
Birmingham attorney Tommy Spina, who is representing Burks in his criminal case, told Oxygen.com by phone on Tuesday that bloodwork he provided to the district attorney’s office does not establish his client had taken pain pills ahead of the hunt in May. He said he is unsure if that evidence was presented to the grand jury.
Spina added that his offer to have Burks testify to the grand jury was rejected.
“The burden of proof is on the state to prove that he acted intentionally,” he said. “Which is simply not the case.”
Burks intends to enter a plea of not guilty, Spina told Oxygen.com. The veteran will be eligible for the death penalty if convicted.
In a joint statement along with Mobile attorney Jonathan McCardle, who is also representing Burks, Spina expressed dismay over the decision to upgrade the charge.
"We are disappointed the grand jury saw the case differently than the Jefferson County Magistrate, the Jefferson County Sheriff's office, and the Jefferson County District Attorney’s office, all of which felt that the original charge of Reckless Manslaughter was appropriate in this case, based on the evidence," he wrote in the emailed statement.
"We are hopeful that the evidence will ultimately establish that what occurred that day was not an intentional act," the statement adds. "The events that occurred that day were devastating on many levels and our sympathies are with the family of the young man that lost his life in what we believe was a tragic hunting accident. We pray each day for the family of the deceased.“
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