NEW MADRID - As the preliminary hearing of a Matthews man accused of shooting and killing his brother-in-law came to an end, the defendant's lawyer sought dismissal of the charges, citing lack of evidence.
The prosecution countered that only part of their case was presented at Thursday's hearing in Division II of New Madrid County Circuit Court and Judge Charles Spitler agreed ordering James Ross bound over for trial on charges of second degree murder and armed criminal action for the death of John Makin on May 6.
In presenting the prosecution's case, New Madrid County Assistant Prosecuting Attorney Amy Phillips first called Anthony Comstock of the New Madrid County Sheriff's Department. Comstock recalled pulling up to the Matthews residence about 8:45 p.m. May 6 and seeing the victim's wife coming from the house "covered with blood, yelling at us to go inside and help John."
Inside the house, Comstock said the victim was lying on his back in the middle of the floor of the front room. Also in the house was James Ross Sr. who is disabled, according to the officer.
Comstock told the court he received a statement from Katina Hamilton that evening and later spoke with a man who told the officer that he and Makin had spent the afternoon prior to the shooting "driving around Matthews and drinking" and said the victim was angry.
Also called to testify was Jeff Heaton, a sergeant with the Missouri State Highway Patrol, who was assigned to interview James Ross Jr. as part of the investigation. After being advised of his rights, Ross told the officer that his cousin Katina Hamilton had come into his house, which is located adjacent to his parents' home in Matthews, and stated that Makin was drunk and "going crazy." Then his mother came over to his house and was hysterical because Makin had struck Mary Makin, her daughter and James Ross Jr.'s sister, and had threatened Mrs. Ross.
Ross told the trooper he went upstairs in his house and got his shotgun and three shells then crossed the yard and entered the house. Heaton testified that Ross told him when he entered the house he could hear Makin shouting and swearing and saw him standing over Ross's father, who was crying. Ross told the officer he loaded the shotgun and told Makin to leave because the police had been called.
Positioning himself where Makin could see he had the gun, Ross told the officer he asked Makin to leave a second time. "John Makin stood up, put his hands in the air and shouted 'shoot me you m_ f_'," Heaton told the court. The victim then approached Ross, who told the officer he became afraid as he neared and at point-blank range fired his shotgun.
Realizing that Makin was dead, Ross said left the gun in the room knowing it would be needed as evidence and asked his father to call 9-1-1.
On questioning by Ross' attorney, James Robinson, Heaton recalled Ross stating that Makin was "mean" when drinking and had threatened him in the past. Also he described Makin as much larger than Ross.
Called by the defense, Katina Hamilton of Sikeston explained she is a cousin of Mary Makin, the victim's wife, and of James Ross. She had come to Matthews the day of the shooting in response to a call from Mrs. Makin who told her she had left her husband and wanted to talk.
Hamilton said when she arrived about 6 p.m. May 6 at her aunt and uncle's house. Later the two women rode together in her car in Matthews, passing Makin, who was also driving around the small town.
She testified that back at the Ross' house, they saw Makin's car and Mrs. Makin went inside the house, although Hamilton warned her not to. Hamilton said fearing trouble she went to get her cousin, James Ross, before going back to the house and hearing Makin "ranting and raving." Although she tried to enter the house, Hamilton stated, that Makin slammed the door in her face.
"I was scared," said Hamilton, who said she again went the younger Ross' house. When Mrs. Ross, her aunt, arrived at the house, she was hysterical, Hamilton said, prompting Ross to get his gun and cross the yard. Prior to crossing the yard, Ross told them to call 9-1-1, she added.
As Hamilton concluded her testimony, the defense made his motion to dismiss the case. "There isn't anything close to convict this man of the charge of second degree murder," Robinson said.
Phillips countered the shooting was a voluntary act on Ross' part and added there were other witnesses who would testify at the trial. "It will be up to the jury to determine if murder in the second degree is appropriate," said Phillips.
Ross, who is currently free on bond, was ordered to appear in Division I of New Madrid County Circuit Court on July 22.