McElroy trial

Three witnesses testified Wednesday that Brandyn Preston may have been shot and subsequently died as part of an ongoing feud between two gangs in Fort Dodge.

Prosecutors in Webster County District Court said Derrick McElroy, 28, of Fort Dodge, fired a gun into a backyard birthday party at 1101 10th Ave. S.W. on May 8, 2011.

Preston, 19, was hit in the neck. He survived, but was paralyzed from the neck down. He moved to Tampa, Florida, to live with his mother and died there from his injuries in January 2012.

“No evidence shows that the bullet was meant to hit Brandyn Preston,” Jennifer Benson, assistant Webster County attorney, said in her opening statement. “You’ll hear evidence that the bullet was fired, intending to shoot someone, anyone at the party, and, unfortunately, Brandyn was the one who was hit.”

McElroy is on trial for first-degree murder in Preston’s death.

His attorney, Charles Kenville, of Fort Dodge, said the wrong man was arrested for the crime and he pointed the finger at another man.

“The entire initial investigation was focused on Deangelo Foy,” Kenville told the courtroom in his opening statement. “There was no other real suspect during those initial months of the investigation. Mr. McElroy’s name is not even brought up.”

Cierra Shivers, of Fort Dodge, said that on the night of the shooting she was having a bonfire party at her home at 1101 10th Ave. S.W. to celebrate her roommate’s birthday.

Preston, along with his cousin, Devon Kirby, of Fort Dodge, were there.

Shivers described the party as originally just having a handful of people, but after the bars closed at 2 a.m. a large crowd showed up.

“It got out of my control,” she said. “There was a lot more people than I expected to come.”

At some point, as the crowd grew larger, Shivers said she thought she heard gunshots and ducked. She described hearing a whistling sound, which led many at the party to say that it was fireworks and not gunshots.

Shivers said she heard a “popping” sound about 10 minutes later.

“I didn’t respond until I seen Brandyn stand up out of his chair and he fell over the back of the chair,” Shivers said.

A baseball cap Preston had been wearing fell off when he hit the ground.

Preston’s cousin testified that he thought the sound was firecrackers. He was sitting next to Preston when he fell over backwards.

“I said, ‘Brandyn, get up,'” Kirby said. “He wasn’t responding to me.”

At the time, Kirby didn’t realize Preston had been shot. He and others thought Preston was drunk.

It wasn’t until Preston’s sister, Samantha Voigts Spencer, of Fort Dodge, drove her grandmother’s van to the scene to pick up Preston that Kirby discovered a hole in his cousin’s neck.

Through tears, Voigts Spencer described in court how she drove Preston to Trinity Regional Medical Center in minutes.

“They came out with a wheelchair and I said he was too tall for a wheelchair,” she said. “They came back and laid him on a stretcher and we waited.”

The bullet was lodged in Preston’s spine and wasn’t recovered until after he died because it was too risky.

When it was recovered, it was determined that is was shot by a .22-caliber Ruger rifle, according to Benson’s opening statement.

Shivers, in her testimony, said McElroy was a member of the Bloods gang.

“They had a saying, Blood Gang, and they were representing themselves as members of the gang,” Shivers said.

She said McElroy would often flash a hand signal associated with the gang.

According to Shivers, there was also a sub-group of the Bloods known as the Jack Boys. The Jack Boys were comprised of boys who were in high school and younger.

Under questioning by Doug Hammerand, assistant Iowa attorney general, Shivers said that at the time of the shooting the gang was having a feud with another gang that she classified as the “blue group,” because of the color associated with them.

The Bloods and Jack Boys were known as the “red group.”

“You told law enforcement about the two groups and the defendant being a part of the Bloods and Jack Boys when interviewed,” Hammerand said. “Is that correct?”

“Correct,” Shivers said.

“Did the Jack Boys have the same colors and hand signals as the Bloods?”

“Yes.”

Under cross examination from Kenville, Shivers said she did not know what the feud was about or what role McElroy may have had in it.

Preston himself was not involved in any gangs, according to multiple witness testimonies.

When the trial resumed after lunch, Larry Hedlund, a former supervisor with the Iowa Division of Criminal Investigation, said a Ruger .22-caliber automatic rifle was recovered the day of the shooting from the home of Percy “Ike” McElroy, Derrick McElroy’s grandfather.

Ike McElroy’s house was about one and a half blocks away from the house where the shooting occurred.

Investigators also found a plastic bag full of .22-caliber shells in a retaining wall in an alley near Seventh Avenue North and Eighth Avenue North near the home of Diana Foy.

That is where Deangelo Foy lived.

Under cross examination from Kenville, Hedlund said investigators searched the Foy home to see if they could find any evidence related to the shooting.

“You felt that there was likely evidence of a shooting?” Kenville asked.

“I felt it was possible,” Hedlund said.

The first witness on the stand Wednesday was Preston’s mother, Kimberly Wood. She testified that Preston was a high school basketball standout in Missouri and, at 6-foot 7-inches tall, hoped to play for Iowa Central Community College in Fort Dodge. He had moved to Fort Dodge from Missouri without her knowledge, presumably to be closer to his father, Patrick Preston, and other family members, she said.

She described him as “silly, obnoxious at times, funny, loving, gracious.”

She recalled for the court her reaction to getting the phone call telling her Preston had been shot.

“I just fell to the floor because he was my baby.”

Wood flew to Des Moines where Preston had been airlifted to Iowa Methodist Medical Center. After about a month there, he was transferred to a rehabilitation center in Nebraska before being sent home with his mother to Tampa. After the shooting, he was never able to breathe without a ventilator.

Judge Kurt Wilke addressed the court in the afternoon. He acknowledged that while proceedings would be emotional, “the last thing we want is a mistrial.” He warned that there could be no commentary between the lawyers and the spectators, or he would have no choice but to have the offender or offenders removed from the courtroom.

His caution appeared to be prompted by an earlier exchange in which Kenville apparently heard an utterance from one of Preston’s family members, who were sitting the in front row. Kenville turned toward the spectators and audibly referred to them as “the peanut gallery.”

Dr. Edward Touney, an emergency department physician at Trinity Regional Medical Center, examined Preston after he was transported to that hospital right after the shooting. Touney said Preston was in critical condition and that the primary concern was to help him breathe.

Other testimony Wednesday included Christina Schlief, who had been involved in an intermittent relationship with McElroy, and Fort Dodge police officers Bryan Slama and Don McLaren, who had responded to a loud party call at Shivers’ house the night of the shooting.

Hedlund will continue his testimony today at 9 a.m.