Updated: Witness testifies James Breen shot his cousin, defense begins case

Sean Hiepler testified Tuesday when he and James Breen got into an argument over leaving a bar last year he thought they were going outside to have a fist fight but when they walked outside Breen pulled out an assault pistol and pointed it at his chest.

Hiepler, 24, of Mount Vernon, said he thought about rushing him and took a step forward but Breen stepped back and Hiepler's cousin, Cory Forbes, who was also outside, tackled Breen and shots were fired. Hiepler said the shots were fired as Breen and Forbes started falling down and the last shot was fired when Breen was on top of Forbes.

Breen, 28, of Cedar Rapids, is on trial for charges of attempted murder, willful injury causing serious injury, going armed with intent and carrying a dangerous weapon. He is accused of shooting Forbes, 28, of Cedar Rapids, three times with a Tec-9, a 9-millimeter semi-automatic pistol, outside of Rumors Bar and Grill Nov. 18, 2012.

Forbes was shot in the abdomen twice and once in the hip area, which caused permanent nerve damage to his bowels and colon, according to testimony.

The bench or non-jury trial should wrap up Wednesday. Sixth Judicial District Judge Ian Thornhill will render a verdict in this case. If convicted, Breen faces more than 50 years in prison.         

Hiepler said after the shots were fired he pulled Breen off Forbes and started punching him to get the gun. He then threw the gun away from Breen who got up and started running but Hiepler tackled him in the street and started punching him again.

“I was saying ‘You shot my cousin” and called him a punk bitch,” Hiepler said. “I was partly scared and angry.”   

Hiepler said the argument started over Breen wanting Hiepler's car keys. Breen said he needed to get his cell phone out of Hiepler's car but Hiepler told him it was unlocked. Breen continued to ask several more times for the keys but Hiepler wouldn't give them to him. Breen then said he wanted to leave but Hiepler wouldn't and Breen asked if he “wanted to take it” outside.

Hiepler said he saw Breen put the gun in his waistband earlier in the night before the three of them went out drinking but he didn't think about it when he and Forbes went outside with Breen. He just thought it was going to be a fist fight.

Linn County Attorney Jerry Vander Sanden asked if Hiepler if he had seen the gun before or did they talk about the gun but Hiepler said no.

On cross examination, Victoria Cole, Breen's attorney, asked Hiepler didn't he identify the gun to police as a .22 handgun.

Hiepler said he did. He didn't know what it was at the time.                                               

Cole asked why he didn't tell investigators about seeing Breen cocking the gun. Hiepler didn't mention it until his deposition, she said. 

Hiepler admitted he didn't tell investigators.

The defense also started its case Tuesday afternoon.

Cole in a brief opening said this was an accidental shooting that occurred because Breen was "extremely" intoxicated.

Prof. Paul Perry, chair of the Deparment of Pharmacy Practice at Touro University in Vallejo, Calif., testified Breen wasn't able to form specific intent to commit attempted murder because of his leval of intoxication. He reviewed Breen's medical records from his emergency room visit on Nov. 18, 2012 and witness depositions and law enforcement reports in making his opinion.

Perry said Breen BAC taken at the hospital emergency room Nov. 18, 2012 was .272, which was taken about 45 minutes after the incident, so based on his calculations of when the incident occurred he BAC was in a range of .280 to .287. The legal limit is .08. Breen's  level of intoxication could produce an alcoholic blackout, which affects "recent" memory - something that happened five minutes ago. Factors consistent with blackouts are the number of drinks a person has, a higher BAC and the rate at which the person consumed the alcohol.

Perry said as the alcohol level increases, it becomes more difficult to think or comprehend and abstract reasoning is also impaired.

Perry said in his opinion Breen couldn't form specific intent to commit attempted murder.

Cole asked how sure he was and he said "beyond a reasonable doubt."

On cross, Perry admitted he never talked to Breen. His conclusions were based on general studies concerning alcoholic blackouts. He didn't know Breen's tolerance level or if he was a social drinker or alcoholic.He also admitted that he didn't know the legal definition of specific intent in Iowa.

Vander Sanden asked if someone who is intoxicated with a .280 BAC can make a voluntary, intentional decision.

Perry said yes.

Vander Sanden asked if someone pulled out a gun and pointed it at another, wouldn't that be a "purposeful and deliberate" act.

Perry said yes.