Chiefs in the Chattanooga Police Department have failed to uphold an Internal Affairs charge of untruthfulness against Capt. Edwin McPherson, though several police officials said he blocked evidence in a murder case then later said he could not remember doing so.
The surprise finding was returned though two of the five chiefs on the panel making the decision had previously said they had reviewed the case and felt the charge should be sustained. Those include Assistant Chief Kirk Eidson and Deputy Chief Tommy Kennedy, who conducted the disciplinary hearing. Others on the panel were Chief Bobby Dodd and Assistant Chiefs Stan Maffett and Randy Dunn.
Chief Dodd said, "During a disciplinary hearing the panel of chiefs heard all the testimony and proof from witnesses in the investigation, as well as from Capt. McPherson and his attorney, then decided there wasn't enough proof to find him guilty.
"We handle our IA cases as closely as possible to a court hearing even though they are only administrative in nature. The IA investigators investigate the allegations and the IA captain makes a recommendation to either sustain, not sustain, justify/exonerate, or unfound the cases. Once that determination is made, the appropriate assistant chief will give a 10-day notice for an employee to appear at a disciplinary hearing.
"During the employee disciplinary hearing, the case is presented by the IA captain and all command staff members can ask questions about evidence or of witnesses in the case. The accused officer is also allowed to ask questions or have his questions/concerns presented by an attorney or labor group representative. We do not prejudge the cases and we definitely do not rubber stamp the findings of the IA investigation. We have to review all evidence presented, hear from all witness involved, and then decide whether there is enough proof to find someone guilty of the allegations brought against them.
"We do not take this part of our job lightly, nor do we make possible career-ending decisions against officers if the proof is not in the investigation."
The evidence was related to Capt. McPherson's niece, Myra Collier, who police say is a suspect in the June 29, 2010, slaying of 46-year-old Bernard Hughes and possibly "set it up." She has not been charged, but Harold Butler III, Unjolee Moore, Steven Ballou and John Simpson are awaiting separate trials. Simpson was set to go to trial next Tuesday, but his attorney, Mike Little, asked to come off the case for unspecified reasons.
Ms. Collier made a phone call to Capt. McPherson soon after the murder, it was stated.
Detective Michael Wenger said a couple of weeks after the slaying at the British Woods Apartments on Oakdale Drive a cellphone that had belonged to Butler along with the same type weapon used in the murder were recovered together.
He said he went to recover the gun and phone and was met by Capt. McPherson, who directed him not to take the cellphone. He said Capt. McPherson also placed a call to police higher-ups and he got a call from Sgt. Bill Phillips telling him he was not to take the phone. He said Sgt. Phillips said he had been advised by Assistant Chief Eidson to "leave that phone alone."
Defense attorneys in the case later got wind of the incident and they all filed motions to dismiss with Criminal Court Judge Don Poole, saying the phone may have obtained evidence favorable to the defense.
Detective Wenger said Capt. McPherson at one point told him that federal marshals were using the phone to track some individuals and later said the phone could not legally have been taken because it had been sold by Butler to another individual.
Capt. McPherson told investigators, "I would never instruct anyone not to recover what I believe is evidence in a case."
There was a court hearing before Judge Poole in which Capt. McPherson said he could not remember about the cell phone and there was later an Internal Affairs probe begun. Judge Poole later denied the motions, but said they might be reconsidered later.
A second victim – Timothy Westfield, 45, was shot in the hand during the incident.
Defendants include Moore, a former Brainerd High School track star who was convicted of carjacking in 2005 in U.S. District Court and served a stint in federal prison; Butler, who goes by the street name of “Bam”; Ballou, who has a lengthy criminal history and was once named to the Hamilton County Sheriff’s list of most wanted fugitives, and Simpson – known to his cohorts as “Cut Throat.”
Capt. Susan Blaine, who is over Internal Affairs, said IA took the case after the district attorney's office decided not to seek perjury charges against Capt. McPherson.
She said a review panel that includes three members of the police department from various levels as well as three private citizens recommended that the charge be sustained.
Here is the Internal Affairs recommendation:.
Allegation: Fact Finding – Untruthfulness - Sustained
Officer Involved: Captain Edwin McPherson 752/42762
I have reviewed the fact finding investigation conducted by Sgt. Larry Guthrie and recommend that the allegation of untruthfulness be sustained against Capt. Edwin McPherson. This allegation involves Capt. McPherson’s testimony in Criminal Court on 04/02/12 during a motion to dismiss hearing. During his testimony, Capt. McPherson stated that he had no recollection of telling Inv. Wenger not to recover a cell phone on 07/13/10 that was potential evidence in a murder case. Based on this IA investigation I feel there is sufficient evidence to indicate that Capt McPherson did order Inv. Wenger to not take the cell phone on 07/13/10. Inv. Wenger noted this in the report he made the night the cell phone was found and phone records indicate that Capt. McPherson is the one that made the call to then Lt. Eidson telling him to tell Inv. Wenger to not take the phone. I also feel there is sufficient evidence to indicate that Capt. McPherson remembered this incident based on a conversation Capt. McPherson had with Inv. Wenger and Inv. Narramore on the back lot of the Police Service Center on 03/30/12. During that conversation, Inv. Wenger & Inv. Narramore both advised that Capt McPherson made comments to them that he remembered the cell phone issue and making the decision not to take it and would just have to tell them that at the hearing scheduled for the following Monday, 04/02/12.
After the hearing on 04/02/12, Inv. Wenger advised Sgt. Bill Phillips of the contradictory statements Capt. McPherson made at the hearing as opposed to what Capt. McPherson had said to Inv. Wenger and Inv. Narramore on the back lot on 03/30/12. Sgt. Phillips then advised the DA’s Office on this information. Neil Pinkston with the DA’s office advised that now that they had been informed of these contradictory statements that they would have to disclose this to the defense attorneys.
The defense attorneys then requested another hearing to dismiss based on this new information involving possible perjury by Capt. McPherson. I attended the new hearing on 07/16/12 and Inv. Wenger testified under oath of the contradictory statement made by Capt. McPherson. I was expecting to hear Capt. McPherson to testify also but he was not there and did not testify. I talked with one of the defense attorneys, Garth Best, to inquire if Capt. McPherson was subpoenaed for this hearing and he advised that they did not subpoena Capt. McPherson. Mr. Best advised they only subpoenaed Inv. Wenger because they felt Inv. Wenger could testify to the information they needed for this hearing. I also talked with Neil Pinkston after the hearing on 07/16/12 and asked if the DA’s office would be pursuing Perjury charges on Capt. McPherson and Mr. Pinkston stated that they would not.
Inv. Wenger stated during his IA interview that Capt McPherson walked up to Inv. Wenger as he was talking to Inv. Narramore on the back lot of the Police Service Center on 03/30/12 and brought up the motion to dismiss hearing scheduled for 04/02/12. Inv. Wenger said Capt McPherson told them “the reason I didn’t want ya’ll to take that phone was that it belonged to Antonio Watkins who had bought it from Harold Butler and I didn’t think we had a legal standing to take the phone”. Inv. Wenger said Capt McPherson then said “well I made a decision and I will have to tell them that”. Inv. Narramore confirmed that this conversation took place and confirmed what Capt. McPherson said on 03/30/12.
During Capt. McPherson’s IA interview, he denied making these comments to Inv. Wenger & Inv. Narramore on the back lot. Capt McPherson said he does remember talking to Inv. Wenger on the back lot, but that he only asked Inv. Wenger what was the deal with the cell phone. He said Inv. Wenger told him the defense attorney wanted to ask them about why the phone wasn’t taken as evidence once it was located on 07/13/10. Capt. McPherson said he asked Inv. Wenger if they were going to meet about this and Inv. Wenger told him what time they were meeting in the DA’s office. Capt McPherson said he told Inv. Wenger and Inv. Narramore that he didn’t remember anything about the phone.
After Capt. McPherson’s IA interview, Sgt. Guthrie contacted Inv. Wenger again about his conversation with Capt McPherson on the back lot and asked Inv. Wenger if there was any doubt that Capt McPherson told him that he did remember the cell phone incident during their conversation on 03/30/12. Inv. Wenger said there was no doubt.
I have been waiting to submit this IA case until Judge Poole made a decision on the latest motion to dismiss that was heard on 07/16/12 so it could be added to this IA case. Judge Poole advised he would take the motion to dismiss under advisement and would rule on it in a few days. I just checked with Neil Pinkston on 07/30/12 and Judge Poole still had not made a decision. Since the Judge’s decision will not affect my recommendation I will go ahead and send this IA case on up review. I will add Judge Poole’s ruling to this IA case when he makes his decision.
Summary of Investigation
On 06/29/10 a murder occurred at 4417 Oakwood Drive. Inv. Wenger of the homicide unit was assigned as the lead investigator. While on his way to the crime scene, Inv. Wenger was called by Capt McPherson and given suspect information. During the investigation Inv. Wenger identified Harold Butler, Jr as a suspect. Inv. Pickard of the fugitive division was assigned to track down Harold Butler. Inv. Pickard obtained a court order to track Butler’s cell phone. On 07/13/10 Butler’s cell phone was tracked to 2004 Curtis St. The fugitive division officers along with U. S. Marshalls and ATF agents responded to 2004 Curtis St but did not locate Harold Butler. They did find Butler’s cell phone in the possession of Antonio Watkins. Watkins had obtained the cell phone from Butler in a trade for some marijuana. Capt McPherson was working an extra job at the housing authority and heard the fugitive officers on the radio and responded to 2004 Curtis St. Inv. Wenger was notified that the phone had been found and he responded to 2004 Curtis St also.
Inv. Wenger had intended to confiscate the cell phone belonging to Harold Butler as evidence. Once on the scene at 2004 Curtis St., Capt McPherson approached Inv Wenger and told him that he could not take the cell phone. Inv. Wenger documented this in his initial supplement and verbally to his supervisor, Sgt. Bill Phillips. Capt McPherson called then Lt. Eidson also during this time. This is confirmed by Capt McPherson’s cell phone records. A/C Eidson said he cannot remember the conversation. Sgt. Bill Phillips said he received a call from Lt. Eidson instructing him to call Inv. Wenger and tell him to leave the cell phone alone. Sgt Phillips did call Inv. Wenger and relayed the message to him. The homicide division had been very busy during this time and both Sgt. Phillips and Lt. Eidson were asleep when called.
The only documentation of this event was in Inv. Wenger’s initial supplement. Capt McPherson did not do a report documenting the incident. All the fugitive investigators that were on the scene were interviewed and none of them remember anything about the cell phone and none said they were part of any conversation about the cell phone. Inv. Pickard did not document anything about the cell phone in his report.
Four suspects were charged with murder in this case. In March 2012, all defendants filed motions to dismiss based on an allegation that the police department lost and/or destroyed evidence (the cell phone). Capt McPherson had made statements after learning about the motion that he did not remember the cell phone and did not remember giving Inv. Wenger the order to not take the cell phone. However, on Friday, 03/30/12, Capt McPherson approached Inv. Wenger and Inv. Narramore on the back lot of the PSC and began talking about the case. Both Inv. Wenger and Inv. Narramore state that Capt McPherson told them that he didn’t feel like we could take the phone that evening because it had been bought by Antonio Watkins. They also stated that Capt McPherson told them “So I made a decision; I’m just going to have to tell them that.” When asked about this in the IA interview Capt McPherson denied telling Inv. Wenger and Inv Narramore this.
When Capt McPherson met with ADA Neal Pinkston before the hearing on 04/02/12, he told ADA Pinkston that he didn’t remember giving the order to not take the cell phone and that it would not have been his decision to collect the phone or not because he is not major crimes.
During Capt McPherson’s testimony in the hearing he was asked “Do you recall ordering Inv. Wenger to not recover a cell phone in which he believed was evidence in this case?” Capt McPherson responded “I don’t recall ordering anybody to do anything of that nature.” Later Capt McPherson was asked “so your position is you don’t remember telling Inv. Wenger to not recover a cell phone on 07/13/10?” Capt McPherson responded “That is possible, because there was so much going on on the scene out there, but he doesn’t work directly for me, and my specific task if I were to have been involved is to locate bodies and any evidence would be referred to them”. Then he said “I said I don’t recall because I wasn’t directly involved in the case, as far as investigating it, but it’s possible,” When Capt McPherson was asked “Do you recall having a conversation with then Lt. Eidson on 07/13/10?” Capt. McPherson responded “I can’t say or deny that we have spoken, but at the time it was irrelevant to me.”
During Capt McPherson’s IA interview he stated that he does not remember giving Inv Wenger an order to not take the cell phone. Capt. McPherson was then asked if he made a phone call to someone in the homicide chain of command and requested that the cell phone not be taken. He said he has no documentation of something that happened two years ago. Capt McPherson stated that if he had instructed that the phone not be taken it would have been because one of his officers asked him to. Capt. McPherson was then asked him if he remembers any of his officers asking that. He said no. None of the fugitive officers said they made such a request to Capt McPherson.
ATF Agent Warren Smith was on the scene at 2004 Curtis St on 07/13/10 when the cell phone was recovered. Agent Smith was interviewed by Sgt. Guthrie on 06/19/12 and he stated he did not hear Capt McPherson give the order to not take the cell phone but he did have a conversation with Inv. Wenger on the scene that night where Inv. Wenger told him that Capt McPherson had ordered him to not take the cell phone.
In conclusion, there is creditable evidence that Capt McPherson did give Inv. Wenger an order to not take the cell phone on 07/13/10. Inv. Wenger reported this to his supervisor and documented it in his initial supplement report. Also, Inv. Wenger had a conversation with ATF agent Warren Smith on 07/13/10, about the order given to him by Capt McPherson. There is also evidence (Capt. McPherson’s cell phone records) that indicate Capt McPherson made the phone call to Lt. Eidson in the homicide chain of command to have Inv. Wenger not take the cell phone.
There are statements from both Inv. Wenger and Inv Narramore that on 03/30/12, Capt McPherson made comments to them that he was familiar with the cell phone and that he did make the decision to not take it.
There is a statement from ADA Neal Pinkston where Capt McPherson told him he did not recall giving Inv. Wenger an order to not take the cell phone. And there is court testimony where Capt McPherson testified that he did not recall giving Inv. Wenger an order to not take the cell phone.
It should be also be noted that Capt McPherson was subpoenaed and received an email from ADA Neal Pinkston on 03/14/12. The email contained a copy of the motion to dismiss which contained a statement that “Detective Wenger states in his report that he was instructed by both Lt. McPherson and Sergeant Phillips to refrain from recovering the cell phone of Harold Butler from Antonio Watkins.” (This email has been placed in this case file.)