Jurors burned the midnight oil Friday deliberating deep into the night before finding Floyd Kirby guilty of shooting a fisherman in the lake behind his home.
Kirby, 76, faces three to six years on two aggravated assault counts and one misdemeanor reckless endangerment count on which jurors convicted him following six hours of deliberation Friday night. Jurors arrived at the verdict around 11 p.m., opting to acquit the elderly Vietnam veteran on the top charge of attempted first-degree murder in the case of the injured fisherman Ken “Stubby” Murray.
Murray was hit with buckshot pellets in the shoulder, arm and torso as he and friend Stan Owenby fished on Harvest Farms Lake on the morning of May 10, 2011. While owning a lot on the lake four doors down from Kirby, the men were fishing behind the Kirby home when the man squeezed off four shots with a shotgun, one of those shots having buckshot, the others delivering bird shot.
During his testimony Friday, Kirby maintained that while he had walked down toward the lake to warn the fisherman to “read and heed” his no trespassing sign as it pertained the water behind his house, he did not know the boaters were still down range when he opened fire on black birds in the trees.
“I pointed out my sign,” testified the feisty 76-year-old, who said he posted the area as no trespassing after his dog was killed by boaters and his dock vandalized. “Anybody who went to school should know that.”
Kirby said he had been shooting a 22-caliber pistol to scare off the birds just before he saw the men on the boat behind his house. The gun jammed and caught fire, Kirby said, noting that is when he resorted to the shotgun.
“My hand was on fire,” Kirby said, noting after warning the men to leave he walked up to his garage and put his hand in water to cool it off before getting his single-shot shotgun to run off the black birds. Kirby admitted he may have accidentally grabbed a buckshot shell along with the bird shot when he pushed the shells into his pants pocket. It was the single buckshot round which wounded Murray.
Kirby maintained he had trained the ducks on the lake to walk up and get the feed he placed out for them when he would whistle and beat on a metal pan. He used the guns to keep black birds away from the feed. Kirby said he would have never opened fire had he known the men were still on the lake, noting his view was blocked by the heavy foliage between him and the boat.
“I let go,” Kirby admitted saying he fired four shotgun blasts at the birds denying he was trying to harm the men. “My target was blackbirds not two people on the boat.”
Kirby’s long and somewhat wandering answers to questions came after his son told the court the family plans to put both Mr. Kirby and his wife in assisted living homes after his legal matter is resolved.
Prosecutor Randal Gilliam questioned how Kirby could not hear the men shouting for him to stop shooting. Kirby resisted the question saying the breeze on the lake made it hard to hear anything.
“You need to get some IQ,” Kirby told Gilliam, saying he heard nothing until after he fired the last shot. Kirby acted indignant his version of events was being questioned.
In the end, jurors opted to convict Kirby on two felony assault counts for wounding Murray and the threat of serious bodily harm to Owenby. They also opted to convict on the charge of misdemeanor endangerment since the gun was discharged in a manner that placed the public in danger.
While facing three to six years when he comes up for sentencing Feb. 6, legal experts suggest it is highly unlikely he will get jail time given his age and lack of criminal record.