Witnesses: Austin protester Garrett Foster did not raise rifle toward Uber driver who killed him

Did Austin protester Garrett Foster lift his rifle toward an Uber driver before the driver fatally shot him?

He did not, three key prosecution witnesses testified Wednesday at the trial of Daniel Perry, who is charged with murder in Foster's death. Perry faces up to life in prison if convicted.

On the night of July 25, 2020, Perry was driving on Fourth Street and turned onto Congress Avenue, where a Black Lives Matter crowd was marching. Perry stopped and several protesters approached his car, including Foster, police have said. Protesters have said they feared they were being attacked by someone in a car.

Foster's wife testified tearfully that right before the shooting, Foster was standing in front of her by Perry's car on Congress Avenue near the Fourth Street intersection. Foster was carrying a rifle in a strap with the barrel pointed down, Whitney Mitchell said. All she could remember that Foster said before the shooting was "Move on," she said.

"I remember hearing gunshots and Garrett just falling over," Mitchell said. She said she didn't see the shooting but jumped out of her wheelchair because the gunshots startled her. Mitchell is a quadruple amputee.

More: Lawyers have differing views on what really happened when Austin protester Garrett Foster was killed

Defense lawyer Doug O'Connell challenged part of Mitchell's testimony.

"Do you remember telling the detectives you only heard gunshots and couldn't remember the position of (Garrett's) gun?" O'Connell asked Mitchell. "Yes," she said.

Prosecutor Guillermo Gutierrez then pointed out that Mitchell had later told a grand jury that she could remember the barrel of Foster's rifle pointing down when she heard gunfire.

O'Connell also asked Mitchell if Foster was a member of a group called the "Texas Guerilla Militia."

"I remember Garrett had met someone that day and talked to them, but that was the very first day he talked to them," said Mitchell.

Defense lawyers have said Foster lifted the barrel of his rifle toward Perry, causing Perry to shoot Foster in self-defense.

More: Trial in death of Austin protester Garrett Foster begins. Was it self-defense or murder?

Another witness, Jeremy Lett, who was Foster's roommate, also testified Wednesday that he saw Foster walk toward Perry's car holding his rifle almost parallel to the ground with the barrel slightly down. He said Foster stopped about 10 feet from Perry's car.

Lett said he was standing behind Perry's car and saw the driver's door open slightly. Foster said to Perry, "Hey, get back in the car," Lett said.

Foster's rifle was across his chest, and he wasn't holding the gun but was gesturing upward with his hands in an open position to indicate he wanted Perry to leave, Lett said. Lett said he looked away briefly to watch someone else writing down the license plate number of Perry's car when he heard gunshots.

"I dropped to the ground, and I just looked up to see the last two flashes of the gun that came from the driver’s window," Lett said. "I saw him (Foster) fall toward me and he fell on his side," Lett said, wiping tears from his eyes. "His rifle was right across his chest where it usually was."

More: Jurors hear differing versions of how Austin protester was killed

Someone who was attempting to render aid to Foster at the scene moved the rifle strap, Lett testified.

He also said that, before the shooting, he had kicked Perry's car before Perry stopped it on Congress Avenue. Lett said he had denied kicking the car in a previous interview with a prosecutor because he was afraid. Lett said he had his lawyer call the prosecutor back so Lett could admit he kicked the car.

Defense attorney Clint Broden, on cross-examination, questioned how Lett was describing that Foster held the gun when approaching Perry's car. Broden did this by standing up in the courtroom, strapping a rifle parallel to the ground and walking quickly and forcefully toward Lett who was sitting in the witness stand.

Lett did not agree with Broden's imitation of Foster's walk. "It was much too aggressive," Lett said of Broden's moves.

Broden in his cross-examination also said that, before the shooting, Lett had been charged with interfering with an arrest at another protest.

More: Trial in death of Austin protester Garrett Foster begins. Was it self-defense or murder?

The third witness on Wednesday, Julian Gawel, said he was participating in the march and saw Foster lean into the driver's side of Perry's car. Foster had his right hand on the stock of his rifle and the barrel of it was pointed down, Gawel said. Foster said something to Perry, but Gawel wasn't sure what, he said. He said he then saw the window of Perry's car roll down. Perry then raised a pistol out of the window, Gawel said. "It was pointed directly at Garrett," said Gawel. He said he saw the flash of the gun as it fired.

Gawel also told a defense attorney that while he was watching Perry raise the gun, he wasn't watching Foster to see whether Foster had his hand on the rifle trigger.

Broden has previously said that the protesters were threatening Perry after he drove into their Black Lives Matter march. Another Uber driver, Travis Bonnet, testified Tuesday that he saw protesters swarming Perry's car "like ants on candy."

Perry, 38, is an Army sergeant who was working as an Uber driving on the night of the shooting. Foster, 28, was a full-time caretaker for his wife and a U.S. Air Force veteran.

The trial started Tuesday and is expected to take two weeks.

This article originally appeared on Austin American-Statesman: Witnesses: Austin protester Garrett Foster didn't raise his rifle