The Texas Prosecutor, March-April 2016, Volume 46, No. 2

Charging capital murder in the SXSW tragedy

When Travis County prosecutors indicted a Killeen man for capital murder after he plowed his car through a crowd of pedestrians, injuring 24 of them and killing four, eyebrows across the country were raised. Here’s how they arrived at that charge—and a guilty verdict.

In the wake of one of the greatest tragedies to occur in Austin, it was reported on national news, “One minute of peril leaves two dead as a driver under pursuit crashes into a crowd of people at South By Southwest. People scattered in the street with serious injuries. Police rush to the scene performing CPR as ambulances were on their way.”
    The driver, Rashad Owens, 21, who was in Austin to watch fellow artists perform at South by Southwest (SXSW), the internationally acclaimed music and technology festival that floods the city every March, crashed through barricades and plowed through a crowd outside a nightclub injuring two dozen people and killing two at the scene. Two more people would die in the following days.  
    The pursuit began as a routine traffic stop on a vehicle traveling without headlights. That pursuit quickly escalated when Owens pulled into a gas station only to speed off down the wrong way of a one-way street, bypassing a barricade blocking vehicle traffic and accelerating to more than 50 mph down a road teeming with pedestrians. By the time his car broadsided a taxi (bringing his vehicle to a rest), the damage had already been done.
     A year and half after this tragedy struck the city, it took a jury of 12 citizens just three hours to convict Rashad Owens of capital murder. He was charged and indicted for this offense, along with the offenses of felony murder (evading arrest or detention in a motor vehicle), aggravated assault, and intoxication assault. How we arrived at the capital murder charge (and lesser includeds) begins with the events of the early morning hours of March 14, 2014, after Owens had left the venue where his friends performed. Owens was on hand to pass out CDs.
    Shortly after midnight, he left the club in a friend’s car and was supposed to pick up his brother. Officer Lewis Traylor, assigned to the downtown DWI unit, saw that Owens’ car was operating without its headlights, and he pulled beside Owens at a stoplight. When the light turned green, Owens—though in a straight-only lane—turned in front of the officer, and the officer initiated a traffic stop. Owens stopped at the next light and when that light turned green, he proceeded through the intersection and turned on his blinker to get in the far-right lane. Slowing his car and turning on his right blinker again, he approached a gas station, ostensibly to pull over for the officer. Instead, upon entering the gas station’s parking lot, he accelerated between the gas pumps and turned onto 9th Street heading the wrong way (9th Street is a one-way, east-bound street). He approached the intersection of 9th and Red River Streets, where both north- and south-bound avenues of Red River were blocked off to cars with temporary barricades and ropes.
    Red River is a very popular part of SXSW and has multiple venues for concerts. During the SXSW festival, the street is blocked to vehicle traffic so that pedestrians can have the run of the road. The crowd had grown in the previous hour because a popular performer, Tyler the Creator, who became well-known as the leader and co-founder of the alternative hip hop collective Odd Future, was about to take the stage at The Mohawk (a bar at 10th and Red River) and had tweeted that he was going to be letting some patrons in for free. And that’s when Owens was fleeing from Officer Traylor. Rather than abiding by the barricades, he turned north onto Red River and accelerated up the street and through the crowd of people. Between 9th and 10th Streets, he struck more than 20 pedestrians with his vehicle. He also struck a barricade at 10th and Red River, blocking that intersection. (See the image above for a bird’s-eye view of the area.)
    Even after all that damage and carnage, he continued to accelerate in an attempt to get away from the officer, who was following slowly and at a distance. As he approached 11th and Red River, he maneuvered around a vehicle in the left turning lane, veering into the right lane and striking a couple on a motorcycle and a bicyclist, propelling all three into the intersection. In that same intersection, Owens collided with a cab traveling west on 11th Street. That collision forced Owens’ vehicle off the road, coming to rest against a parked car. Once stopped, he leapt out of the car and ran up 11th Street, pursued by the officer on foot. The officer caught up to Owens and tazed him to subdue and capture him.
    The damage was massive: 24 people injured and four pedestrians killed (two of whom died instantly), not to mention dozens of others who witnessed the incident and have been emotionally and psychologically scarred by what they saw. Austin itself continued to reel from this carnage once news and videos of the horrific scene spread to media outlets around the world.
    About five hours after the crime, Austin Police Chief Art Acevedo declared that his department would be filing capital murder charges (among others) against Owens (that the defendant intentionally or knowingly caused the death of more than one individual in the same criminal episode), a decision that was disseminated widely and scrutinized by those who thought the charges overreaching. Initially, we prosecutors were not committed to the charge of capital murder but instead kept an open mind of all possible charges that could apply until we had a better picture of what we were looking at, what evidence was collected and preserved, and what we could ultimately prove.    

Why not intoxication manslaughter?
Traditionally in auto-pedestrian collisions, charges such as manslaughter, intoxication manslaughter, aggravated assault, or intoxication assault are common because the driver’s acts are reckless. But this case was different. Though it is hard to fathom that someone would knowingly use a vehicle in this manner, it was even harder to ignore that Owens knew what he was doing that night. For starters, he intentionally fled from police. Granted, that doesn’t establish that he meant to kill someone, but his intent to flee police was clear, and his driving facts were calculated. From the moment the officer encountered Owens on the I-35 frontage road, Owens’ responses—that is, that he sped off and squeezed around a barricade—proved to us that he was cognizant of his surroundings and capable of maneuvering the vehicle in tight spaces. In various admissions after his arrest, he told officers that he ran because he was scared.
    As far as an intoxication-related charge went, Owens did indeed show signs of intoxication, such as odor of alcohol on his breath, slurred speech, and a portable breath test registering the presence of alcohol. Results from a consensual blood draw and subsequent search warrant draw were .09 and .07, respectively. The blood test also showed marijuana in his system. But despite this evidence of intoxication, Owens’ actions (displayed on video from the pursuing officer’s dash camera) and his statements in the back of the patrol car (also recorded on-camera) demonstrated that he knew his actions were likely to cause the deaths of those he struck.
    The patrol car’s video showed that when the officer turned north onto Red River, the defendant was already plowing through a crowd of people. The officer, who was not right behind Owens but at a noticeable distance, carefully wove between those who had been hit. Also noticeable on the video is that the defendant never braked. Later, once he was in the patrol car, Owens acknowledged striking the pedestrians in different ways, and many times he expressed regret. He hoped no one had died, but it sounded less like sympathy for the victims and more like he couldn’t bear to have that grief on his hands. At one point, he even stated that he should’ve just stopped the car.
    To prove capital murder the way we alleged it, we had show that Owens intentionally or knowingly caused the death of more than one individual in the same episode. Our strategy was to disregard the “intentional” aspect of mens rea (it was clear that Owens did not target or seek out these individuals to kill them) and focus instead on Owens “knowingly” causing their deaths. More specifically, we had to prove that he knew death was likely to occur from his actions (of driving more than 50 mph down two city blocks open only to pedestrians). The question then became whether we could show through his actions that Owens knew he was causing the death of the pedestrians he hit. Even as he drove down Red River Street, he drove in a relatively straight line, as evidenced by the blood path down the street, and made little to no attempt to avoid hitting anyone. And not only did he never apply his brakes, but he also accelerated to speeds over 50 miles an hour. These facts added to our suspicions of his deliberate driving.
    After evaluating all his driving facts and measuring them against any comments or excuses, we felt that going forward with capital murder charges was appropriate.

Trial for capital murder and felony murder
We decided that the best course of action was to try only the capital murder case (Count One of the indictment) and the felony murders (Counts Two through Five, one for each deceased victim). We felt confident pursuing the felony murder charges on the basis of Owens’ evading in a vehicle as well as the element of “committing an act clearly dangerous to human life.” That second element seemed pretty evident given that Owens had struck 28 pedestrians with his car. (Depending on the results, we would wait to dispose of the aggravated assault charges at a later time.)
    The ultimate question for the jury was whether Owens knew his actions would cause the death of more than one person. With the way we indicted the capital murder charge—that Owens caused the death of more than one individual in the same criminal act—there would be no lesser-included charge that would apply to the facts. If jurors felt that he did not know his actions would cause that specific result (believing instead that his actions were reckless, not knowing), then they would simply vote “not guilty” and then consider the felony murder charges.
    Our approach during trial was to put the jury in the pedestrians’ (victims’) vantage point that night. We wanted jurors to see exactly what the witnesses, officers, and even what Owens saw as best we could. Approximately 50 witnesses, some of whom were themselves victims, testified to what they witnessed that night—what they saw and most importantly what they heard. The sounds from the night in question—Owens’ vehicle striking pedestrian after pedestrian as he made his way up the street—were seared in their memories. Witness testimony about these ugly sights and sounds was key to combat the defense theory that the street was dark and streetlights were not illuminated so Owens couldn’t see what he was doing.
    Witnesses—victims, festival workers, emergency personnel, and law enforcement—also detailed the aftermath and chaos of the scene as dozens lay wounded until paramedics could arrive. Their descriptions, such as the street looking like a war zone, like a bomb went off, and bodies lying everywhere, dominated the eyewitness testimony. Jurors viewed photographs of the aftermath that included bloodstains on the pavement, sand from the barricade that was demolished, and shoes and other clothing items tossed about the street. Eric Sagotosky, an aspiring filmmaker, had begun recording on his handheld camera just as Owens’ vehicle had plowed through the crowd in front of The Mohawk. Even though he was unable to record the vehicle actually striking the crowd, he did record (and the jury was able to view) the immediate chaos on the street and the final resting place of the victims after they were struck.
    After eyewitnesses testified, we proceeded to disprove any possible defense regarding Owens’ mental state. We called paramedics who testified that they checked him out that night and there were no signs of stroke or seizures. We called the DWI officer who pursued and arrested Owens; the two had an extensive conversation that evening, and he testified that the defendant was completely responsive to the entire thing. Also as part of that DWI officer’s testimony, we played a portion of his in-car video where the defendant was in the backseat by himself saying things like, “I hope I didn’t kill nobody” and “Sir, all I care about is me not killing nobody,” as well as begging over and over that no one die. We felt that these statements needed to go before the jury so they could evaluate whether Owens knew that his actions could have caused the death of an individual. We even called the nurse and doctor who treated him at a local hospital to testify about their observations and evaluations of Owens, which assisted in determining his mental state. (He was sent there after his arrest to be treated for minor abrasions on his legs and hands.) Both professionals testified that he was lucid and conscious, even to the point of being selective about which questions he would answer.   
    Next we focused on the working condition of the car. We called mechanics to assess its state to make sure that the braking system was in working order and that this particular vehicle had no recalls associated with it. It was in fact in good working condition.

Accident reconstruction
At this point in trial, the jury had seen the video of the defendant driving his vehicle past a barricade into a large crowd of people thru the officer’s dash-cam video. We had proven that he didn’t suffer any medical problems and that his vehicle’s braking system was in fine working condition. His own statements to police showed that he knew had hit a bunch of people. Our final way to put the jury in the defendant’s car was through the Austin Police Department’s accident reconstruction expert, Rich Harrington. Harrington extracted data from the car’s Airbag Control Module (commonly called the “black box”), which yielded information for every half-second up to five seconds prior to impact with the motorcycle. This info included the car’s speed, any braking, throttle position (how far the accelerator was depressed), and steering input (see the visual he constructed, below as an attachment). Harrington determined how fast Owens was driving at the point of impact with the motorcycle and bicycle (hitting three victims at 53 mph) and when he struck the cab (47 mph). Harrington also testified that after Owens had hit more than 20 people and a barricade, the defendant’s speed was still 41 mph. He then accelerated to 53 mph, with the throttle reaching 99 percent (the percentage of how far the gas pedal is pressed down—100 percent is “flooring it”). Steering data showed that Owens maneuvered the car out of the left lane and around another vehicle, striking the motorcyclist and his passenger as well as a bicyclist. The two people on the motorcycle died almost instantly.
    With the help of surveillance video from a parking lot between 9th and 10th Streets on Red River, Harrington determined the vehicle’s speed to be 55 mph before it ran into the big crowd in front of The Mohawk bar. He was also able to use blood drops on the street to plot points of evidence on a map (see it, below; blood drops are in red), an influential visual aid showing that Owens traveled in a straight line down the street, never attempting at any time to avoid pedestrians. Rather, he drove right through them. This wasn’t a situation where the defendant hit only one group of people. He was striking person after person after person before he got to the large crowd in front of The Mohawk at Red River and 10th Street. He then struck the large crowd.

Closing arguments
To close, Amy began with a detailed list of acts the defendant committed throughout the evening. She outlined Owens’ controlling his vehicle in a deliberate way to his direct responses to law enforcement and medical personnel, laying the groundwork to rebut any possible defense claim that he didn’t know what he did, either because of his intoxication or other reasons. She also stressed the high speeds Owens had used throughout the destruction and noted that intoxication played a small role, if any, in this case. (As we all know, voluntary intoxication is not a defense to a crime, but the defense alluded to his intoxication and hinted that even though it’s not a legal defense, the jury should consider it when determining his state of mind.) His direct responses, calculated driving, and even the manipulative way in which he answered law enforcement’s and medical personnel’s questions quashed any ideas that he was drunk and didn’t know what he was doing. About the only way intoxication played a role was as his motivation to evade the police officer in the first place.
    Marc gave the second half of closing and rebutted the defense argument that “this was just an accident.” They also alluded to the fact that the street was poorly lit and the defendant did not have his headlights illuminated—therefore, he didn’t know what he was hitting.  Pounding on counsel’s table to illustrate the sounds of bodies hitting the hood of Owens’ car, Marc asked jurors to imagine that sound but much louder—that was what the defendant would’ve heard at least six times before he hurtled into the crowd in front of The Mohawk that night. Even after hearing that awful sound, the defendant didn’t stop, slow down, or pull over—instead, he sped up. He played one of the defendant’s statements for the jury (“I should’ve just stopped”) to argue that the defendant knew exactly what he had done. At the end of closing, Chavez asked jurors not to do what was easy but to do what was right, to hold Owens accountable for causing the deaths of four victims.
    After hearing all the evidence and argument of both counsels, the jury took merely three hours to render a guilty verdict on both the capital murder as well as the felony murder charges. (The judge asked them to render verdicts on all counts; however, he did not read the verdicts of felony murder, nor did he assess punishment on those counts.) Owens was subsequently sentenced on the capital murder charge to life in prison without parole.

Reflection
Our decision to go forward with capital murder charges was criticized and critiqued by many. We realize that traditionally, automobile collisions involve lesser charges, often because we don’t want to believe that a person would knowingly run over people with his car. But this was a very rare case with a defendant who was willing to do whatever it took to flee an arresting officer—even plowing through a crowd of people. He knew what he did, and more importantly he knew that he was likely people by his actions.
    With a tragedy like this one, there are no winners. Lives were lost needlessly, and other lives were affected forever—but we felt justice was served when the jurors decided to hold Rashad Owens accountable for his complete disregard for others’ lives when he did anything he could to escape law enforcement. The victims’ families will never get their loved ones back, but they had their day in court, and we hope that with this verdict, they will have the closure they so richly deserve.

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