Jury still mulling Brashear case

Aug. 25—A jury ended deliberations Thursday without reaching a verdict as they decide whether James R. Brashear is guilty of first-degree murder or another conviction.

The jury was given the case at about 12:50 p.m. and notified 2nd District Judge Mark Monson around 5 p.m. that it wanted to resume deliberations at 9 a.m. today.

Attorneys for both the prosecution and the defense have built their case on whether the murder of John Mast was premeditated. Even though Brashear pleaded not guilty, he admitted he killed Mast. The prosecution argues the murder was premeditated and he should be convicted of first-degree murder. The defense's case is that Brashear acted emotionally and he should be convicted for a lesser offense.

Brashear, 69, of Winchester, was charged with first-degree murder in the shooting death of the 40-year-old Mast, of Williston, N.D., on Feb. 5, 2021, in the Rosauers parking lot in Lewiston. Mast is Brashear's ex-son-in-law and was in a custody dispute for his children, Brashear's grandchildren. Mast was accused, but never charged, with abusing the children.

In closing arguments, Nez Perce County Prosecutor Justin Coleman established the reasons for the jury to convict Brashear of first-degree murder.

"The person who can tell you (what happened at Rosauers) is the defendant minutes after he killed John Mast," he said.

Coleman then played body camera footage of Brashear speaking with an officer after the shooting. He states to the officer that the act was premeditated and he "thought about it and thought about it."

Coleman then went over the terms of predation and malice aforethought. He said that malice aforethought includes pointing a gun at a person and pulling the trigger. Coleman explained premeditation means to consider beforehand on whether to commit the act and then decide to do it. Coleman said that process could take years, months, weeks, days, hours or even seconds.

Coleman argued that the process of Brashear walking up to Mast, taking the gun with him and shooting Mast three times gave him time to think it over and decide to kill Mast. Brashear's statements to the police about thinking about the consequences and knowing he would have to pay for the crime showed he thought about the act before he shot Mast.

Coleman said Brashear planned to shoot Mast and he executed that plan.

"He remembered doing it and he remembered why he did," he said, at times knocking his hand on the stand to emphasize his point. "That is textbook definition of premeditation. That is textbook definition."

Coleman argued that because of those reasons the jury should find Brashear guilty to first-degree murder.

Coleman made his argument again after defense attorney Chris Bugbee presented his closing statement to the jury. He said that Brashear had time to reflect on his decision, which is supported by the evidence and video. He also said it's possible to be emotional and commit premeditated murder.

He finally told jury members they had to follow the law and hold Brashear accountable for his actions to kill Mast, who was a son, brother and "and most importantly a father who was just looking forward to seeing his kids."

In Bugbee's closing arguments he said the jury isn't trying to decide if Brashear killed Mast, but if the murder was premeditated and had malice aforethought. Bugbee asked the jury to look over the different convictions, and some jurors looked at their instructions as Bugbee spoke about the qualifications for each possible conviction. He told them that Brashear should be held accountable to the appropriate conviction.

Bugbee argued that the shooting wasn't premeditated and there was no malice aforethought. Instead he suggested that Brashear was in the "heat of passion" described in the voluntary manslaughter conviction coming from emotions such as fear, rage, anger, terror or revenge. Brashear's emotional response was reflected in testimony from people who saw him throughout the day, as well as Brashear's own testimony.

Bugbee outlined the concerns Brashear had about the unsupervised visit with Mast arguing that it was unexpected. The fact that the Brashear family had worked with Child Protective Services before, Mast previously had supervised visits with the children and they had a counselor for the children showed that the concerns Brashear had were real, even though the jury didn't know the circumstances.

Bugbee argued that Brashear's actions were the result of an emotional response to wanting to protect his grandchildren. He reminded the jury of the reaction the children had about the visit saying that they were crying, screaming and asking for help from Brashear.

"This is a man whose family is the most important part of his world," Bugbee said. "Everything this man does is with or for his family."

With that in mind, Bugbee asked members of the jury if they thought that when the children asked for his help, he would decide to kill Mast, his grandchildren's father.

"Do you think he thought, 'I'm going to kill this son of a b—'?" Bugbee said. "Or do you think it's possible and reasonable under the facts, circumstances and evidence of this case that James Brashear really did snap."

Bugbee argued that premeditation didn't apply either because he didn't have the opportunity or ability to think beyond the moment because he was on a "rollercoaster" of emotions. Bugbee reminded the jury of his testimony where he spoke about not remembering the shooting. He said that although Brashear told police he premeditated the murder, he didn't know what that meant.

"Yes, Mr. Brashear shot Mr. Mast. He didn't hide that from anybody, that kinda goes with who you know him to be," Bugbee said. "I would suggest to you that under all the evidence, it is not reasonable to think such a man could commit a cold-blooded killing if he could avoid it."

Before the jury was given the case, Monson and the attorneys discussed jury instructions while the jury was out of the courtroom. The process took about an hour and 20 minutes as attorneys discussed and Monson considered some of the language relating to possible convictions the jury could use. Bugbee objected to the final instructions, which Monson noted.

Monson read the instructions to the jury, which included convicting Brashear with first-degree murder, second-degree murder, voluntary manslaughter or involuntary manslaughter through negligent use of a deadly weapon.

For first-degree murder, the prosecution has to prove premeditation and malice aforethought. Part of the definition of premeditation in the jury instruction allows for a period of time where the decision was reflected on before the decision was made. Malice aforethought is described as an intentional act that causes harm and doesn't require deliberation or the passage of time.

The second-degree murder conviction doesn't include premeditation, but does include malice aforethought. Voluntary manslaughter doesn't include malice aforethought but instead states the act was the result of the "heat of passion" with the intent to kill acting on impulse and emotion. Involuntary manslaughter through the negligent use of a deadly weapon is a reckless disregard that is likely to produce death or bodily injury.

Before the jury was given the case Bugbee made a motion for a mistrial because Brashear wasn't allowed to tell the jury his full testimony, and testimony of others was limited, including that of Rebecca Brashear-Mast, Robin Brashear and officer Tyler Crane. He asked Monson, outside the presence of the jury, to allow testimony on the allegations against Mast that Brashear was aware of that affected his state of mind on the day of the shooting. Although some of the situation was alluded to, Bugbee said it presented the evidence "in a vacuum" to leave the jury to speculate on whether there was a factual basis for Brashear to be fearful for his grandchildren.

Bugbee previously filed a motion in the pretrial hearings last year that Monson denied. Bugbee appealed to the Idaho Supreme Court but it also was denied and he told Monson that the supreme court advised him to try the case and then he could appeal again.

Bugbee noted a possibility of appeal depending on the outcome of the trial, but asked for Monson to grant his motion "so we can cure what I feel has been a violation of my client's right."

Chief Deputy Prosecutor April Smith asked Monson to deny the motion based on the previous argument that Brashear's testimony on the allegation could confuse the jurors and create a trial within a trial.

Monson denied the motion for a mistrial but noted the objection for the court record.

The defense rested its case after the motion was denied and the jury heard testimony from Glady Brewer, who works at the Idaho Department of Health and Welfare. Brashear and Rebecca Brashear-Mast spoke with Brewer about getting a protection order to prevent a visit with the grandchildren and Mast. Brewer spoke about Brashear's emotional state, saying at first he was calm, but then after the protection order wasn't given his eyes were welling up with tears and he was shaking.

The prosecution then offered rebuttal witnesses and called back officer Tyler Crane, who had testified Wednesday. Crane spoke about text messages on Brashear's phone to Brashear-Mast at 8:49 p.m. on Feb. 4, 2021, referencing a document that mentioned Mast picking up the children at 6 p.m. the next day. Smith said there was an order that Mast would have the children the first weekend every month.

Bugbee then called Brashear-Mast to the stand again to speak about the text the night before. Brashear-Mast said the text was referring to a custody agreement that was ongoing that had supervised visits with Mast, not unsupervised one. Bugbee said that the prosecution was trying to imply that Brashear knew the unsupervised visit would happen the night before and Brashear-Mast testified again that it was unexpected.

Bugbee also addressed the text message and the visit in his closing argument, saying that, if the Brashear family knew about the unsupervised visit, it would have started efforts to stop the visit earlier in the day. He also suggested in the closing argument that the Brashear family and the Mast family got the call about the visit at the same time. Steven Mast testified he got a call about the visit at 11 a.m., then traveled to Lewiston to help his brother, which Bugbee said lines up with the testimony from Brashear and Brashear-Mast.

Crane also testified about phone calls and text messages to and from Robin Brashear and her husband, including a text after the shooting that said "it's done." Bugbee had Robin Brashear testify again about the phone calls and text messages. She said she didn't understand what he meant when he sent the text message that said "it's done," which prompted her to call him after the shooting. She told Brashear how to respond and behave, like putting the gun down and listening to commands from law enforcement.

The trial for Brashear began Tuesday and was expected to take seven days. However, the prosecution rested Wednesday and the defense rested its case Thursday.

Brewster may be contacted at kbrewster@lmtribune.com or at (208) 848-2297.