NEWPORT NEWS, Va. (WAVY) — Two Newport News officers charged in connection with the fatal shooting of a man at a condo last December were granted bond Friday.
Sergeant Albin Pearson, who is charged with second-degree murder, was granted a $200,000 bond. Officer Dwight Pitterson, charged with malicious wounding, was given a $75,000 bond.
A probable cause document obtained by WAVY News 10 reveals more information about what happened leading up to, during, and after the fatal shooting.
The document outlines several issues with the officers’ response to the situation, which ended with the death of 43-year-old Henry Kistler Berry III inside his condominium on Dec. 27 last year.
During an initial news conference following the incident, police said the officers had gone to the condo to charge Berry with falsely summoning law enforcement. The probable cause document, however, says no warrants — or search warrants — were obtained.
Generally, without a search warrant or arrest warrant, the document said officers — and Pearson — had no legal basis to enter a residence at that time.
Also, officers did not have the ability to arrest Berry without a warrant for falsely summoning police.
“It is important to note there was no search warrant for Mr. Barry’s house. There was no arrest warrant for Mr. Barry for any crime. It is important to note that a calm and polite Mr. Barry said ‘I do not want to come outside’ in much the same tone that I just said that to you right now,” special prosecutor Brandon Wrobleski said in court Friday.
However, Pearson’s attorney, Tim Clancy, suggested during a hearing Friday that his client was concerned Berry was gaining control of the situation and would hurt the officers.
Clancy recounted Pearson’s answer when he was asked what was going through his mind during the struggle: “That he is going to he is going to get control of me. He is going to get control of my gun. He is going to keep hurting one of the officers. He is going to shoot one of the officers with the taser and we cannot stop him.”
Berry initially called police in the afternoon Dec. 27 reporting he hadn’t seen his son since before Thanksgiving and did not know where he was.
Pearson and Pitterson were the initial officers to respond to the home around 4:30 p.m. During that time, Berry met with the officers on the sidewalk outside his house and showed them a recording of a Facetime call with his son that Berry believed showed a bruise around the boy’s eye.
Before the officers arrived at Berry’s home, they had called Berry’s ex-wife, who said the boy was safe and was living with her, her other children and new husband in another state. She said the child in question and herself also had a protective order prohibiting Berry from contacting them except for one Facetime call every Saturday at 11 a.m. She also asked officers not to disclose where they were located.
During that interaction, the probable cause document says Berry was calm and polite. He showed confusion about where his son was and asked for help from police finding him.
With the information from Berry’s ex-wife, officers informed him that the video didn’t show anything criminal in nature and that his son was safe. Pearson told Berry that he would be charged with falsely summoning police if he called police again about his son.
The officers also urged Berry to go to the courthouse once it reopened — at 4:30 p.m. on a Friday, the courthouse was set to close soon — to get more information about his son’s whereabouts. The officers said they couldn’t tell Berry where his son was.
Later that evening around 8 p.m., a dispatcher contacted Pitterson and informed him Berry had been calling again asking for police to perform a welfare check on his son. He also asked a different officer — not Pitterson nor Pearson — be sent out to view the video of his son that he believed showed a black eye. The dispatcher said Berry had called 911 five times in a 10-minute period.
At that time, Pitterson and Pearson were unaware that Berry had also called Fairfax Police dispatch multiple times because he believed his son may be there with grandparents. Those dispatchers told him he would need to contact Newport News Police first, who would send a “teletype” message if there was sufficient evidence to perform a welfare check on his son.
Pitterson and Pearson assigned themselves to the call to Berry’s house again, even though the dispatcher had said he did not want them to respond.
Pearson asked another officer, a woman trained in crisis intervention, to come to the call as well. Another officer heard the dispatched call and also responded because he had a positive relationship with Berry in past interactions.
Officers arrived at Berry’s home once again. The four officers spoke with each other and Pearson told them Berry would be arrested for falsely summoning law enforcement. The female officer was told be be the point person to initially talk to Berry and ask him to come outside so they could arrest him.
The female officer, Pearson and Pitterson approached Berry’s door, while the fourth officer waited out of sight to avoid intimidating Berry, the document said.
Berry opened the door after they knocked and had a cell phone in his hand. The first officer asked him to come outside, but he said he’d rather “stand right here” inside the threshold of his home. Pearson then told him her needed to come out and talk to the officers and “hang up the phone from 911.”
At that time, officers had no indication 911 was on Berry’s phone or that he was committing a crime. There was also no indication that he had a weapon.
Then, Berry attempted to close the door, but Pearson forced his way through with Pitterson following behind. The other two officers followed the first two.
“Causing Mr. Berry to yell, and I quote ‘They’re trying to kill me, they’re trying to kill me, God help me.’ Unfortunately Mr. Barry was right,” Wrobleski, the special prosecutor said.
The document said Pearson grabbed ahold of Berry’s upper body and slammed him into a wall. The alleged assault caused a large hole in the drywall and knocked a glass clock off the wall. Berry was then spun around and slammed into a different section of the living room wall.
Officers told Berry he was under arrest and needed to stop resisting. Berry asked why he was under arrest.
“Despite being unlawfully present in Mr. Berry’s apartment without any valid legal process, the four officers attempted to gain control of Mr. Berry’s hands and arms so they could handcuff him,” the document states.
The officers and Berry ended up on the floor. Berry was seated against the hallway wall and the other officers were either seated or laying around him.
Pitterson threatened to tase Berry if he didn’t comply. Berry began to calm down and stop moving, but Pitterson put his taser “directly on Berry’s chest, right over his heart.” He kept it there despite Berry stopping moving and not visibly resisting.
Then, Pitterson pulled the trigger of the taser to deploy its prongs instead of using the less-dangerous “drive-stun” feature. He later admitted he had done it incorrectly and mistakenly shocked the other officers by releasing the prongs.
At least one of the officers initially believed Berry had grabbed the taser, but Pitterson later said he simply grabbed at the taser.
The loose prongs that were pulled out of Berry’s body swung and touched the crisis intervention officer on her leg. It also shocked Pearson, who pulled out his gun and shot Berry once in the back.
The gunshot went through Berry’s heart and killed him.
The shot was fired with the two other officers — not Pitterson nor Pearson — directly in the line of fire. Pearson later said he “just wanted his officers to go home safely.”
Berry had no drugs or alcohol in his system at the time of his death.
Editor’s note: WAVY News is not publishing the names of Berry’s child, the names of the officers involved who were not charged, and any profanity detailed in the incident. All are redacted from the probable cause statement.
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