Witness says he never used pepper-spray can as big as one displayed
By Ed Meyer
Akron Beacon Journal
AKRON, Ohio — It is a tall, black, 16-ounce canister with a black handle and a yellow push-button trigger on top.
Prosecutors in the murder trial of Summit County Sheriff’s Deputy Stephen Krendick have alleged that it was the instrument — a can of pepper spray intended for riot conditions — most responsible for the 2006 death of inmate Mark D. McCullaugh Jr. during a struggle in the county jail’s mental health unit.
Until Wednesday — the first day of eyewitness testimony about the struggle — the can was described only in pretrial records.
But Cuyahoga County Assistant Prosecutor John R. Kosko, lead counsel in the government’s case against Krendick, pulled it out of its evidence bag in court and showed it to the judge who will decide the deputy’s fate.
The short, simple display occurred with sheriff’s Deputy David Kiser on the stand — the first deputy to testify in the trial.
Kiser said he had never used, nor even handled, such a large can of pepper spray in 12 years with the agency.
Then Kosko took the display to the next level, using it to focus on Krendick’s alleged involvement in the struggle.
Kiser testified that minutes before the pepper spray was emptied into McCullaugh’s cell, he also was in the cell with McCullaugh and at least four other deputies who had hold of the inmate as he leaned over his metal bunk with his knees to the floor and his hands cuffed behind his back.
A jail nurse was injecting McCullaugh with a two-drug cocktail in an attempt to calm him, and Krendick, according to Kiser, was standing on top of McCullaugh’s bunk.
When Kiser saw that, he said, he walked out of the cell.
Asked why he would leave the cell, Kiser replied: ''There was nothing more I could do. He was secured.’'
After leaving, Kiser said he did not actually see Krendick shooting the can of pepper spray into the cell. But in Monday’s opening statements, Kosko said Krendick emptied it through a cell-door flap while McCullaugh was cuffed and shackled in a hogtied position.
Kosko told the judge that McCullaugh ''already had been beaten repeatedly in the face and the head . . . [with] seven broken ribs’’ and was left that way by the deputies for several minutes.
''Possibly, judge, at this point, if that’s all that occurred, maybe we would not have been here,’' Kosko added. ''But that’s not all that occurred.’'
What happened next, Kosko said, is that Krendick used the entire 16-ounce can of pepper spray on McCullaugh.
The county’s chief deputy medical examiner, George C. Sterbenz, testified earlier this week that McCullaugh, 28, died of asphyxiation from a combination of chemical, electrical and mechanical restraints affecting his airways.
Sterbenz said McCullaugh’s windpipe, in particular, was ''severely burned’’ when he inhaled the pepper-spray fumes — and that he died within minutes of doing so.
Deputy enters cell
In his testimony Wednesday, Kiser said his involvement in the struggle began at 6:35 p.m. Aug. 20, 2006, when he responded to a call about an ''agitated inmate.’'
Krendick and Deputy Brian Polinger, who also was indicted in the case on one count of reckless homicide, responded with him, Kiser said, and they entered the cell together.
''The cell was dimly lit and it was hard to see. The floor was wet, with what I’m not sure. It was very hot in there and smelled bad,’' Kiser said.
According to previous testimony, McCullaugh had cut himself, smeared blood, feces and urine throughout the cell and scrawled numbers with his blood in a Bible.
Kiser said that when he first saw McCullaugh, he was on his side on his metal bunk with a bloody sheet wrapped around him.
‘Make them leave’ After Kiser told McCullaugh that he was going to be moved to a clean cell, Kiser said the inmate replied: ''Oh, dear Father, please make them leave.’'
Kiser said he then tried to grab the sheet and pull it away and that McCullaugh, naked, became agitated, shaking on his bunk at that point.
After McCullaugh refused to cooperate, Krendick used his Taser stun gun, Kiser said.
It apparently had little effect, so Krendick shot McCullaugh in the back with the Taser.
That jolt, Kiser said, touched off a fight.
''Mr. McCullaugh jumped up and started swinging wildly’’ and punched Krendick in the chest, Kiser said.
Kiser said he tried to take McCullaugh down with a leg strike to the left thigh, but it had no effect.
McCullaugh then ''spit directly in my face,’' Kiser said.
Kiser said he left the cell at that point to wash his face and, while doing that, saw other deputies responding to a call of ''officer in trouble’’ and running into McCullaugh’s cell.
He said he did not know how many ran into the cell.
Questions on restraints
Krendick’s lawyer, James M. Kersey, used Kiser’s testimony in cross-examination to apparently make points on the defense’s theory about what happened in the struggle.
Already having disputed the prosecution’s contention that McCullaugh was hogtied when he was pepper-sprayed, Kersey questioned Kiser at length about whether he saw McCullaugh in that position.
Kiser said he saw the inmate restrained only in handcuffs.
Other deputies called as prosecution witnesses were waiting outside of court to testify, but Kiser was the only one to take the stand before Wednesday’s proceedings adjourned.
Copyright 2008 Akron Beacon Journal