HOUSTON — Jurors deciding the fate of Lazarius Harper, who was convicted of manslaughter in the road rage shooting death of Kevin Kirk, couldn't agree on a sentence so the judge declared a mistrial on Thursday.
Harper's conviction still stands but a new jury will be chosen for the sentencing phase.
After deliberating for several hours Wednesday, jurors told the judge they were deadlocked, but he ordered them to keep trying. They returned Thursday morning to try again but one juror told the judge they couldn't continue so an alternate replaced that person.
At 1:30 p.m., the judge dismissed the jury.
"My understanding is that ya'll cannot reach a result and I respect that decision," Judge Danilo Lacayo told them. "I will have to try this case another day, but I do thank you for your service."
Kirk was on Westheimer after picking up dinner for his wife and two children when a group of ATVs surrounded his vehicle and tried to pull him out, Houston police said. Harper shot the father of two as he tried to drive away. Kirk crashed nearby and died in his car from a bullet wound to his leg.
Mistrials in the sentencing phase are very rare.
"If you've ever been to an amusement park and you've been on a roller coaster, this is what Mandy Kirk's family & her friends have been through for the last few days," Crime Stoppers Victim Services Director Andy Kahan said. "First, you get kind of sucker-punched with the verdict, they were hoping for a murder conviction they get a lesser included with manslaughter, and then for the next two days it's been up and down for them as far as the emotional pain they've had to endure with waiting to see if a jury would come back with a punishment."
Prison or probation?
Prosecutors wanted the maximum sentence of 20 years but defense attorneys asked for probation.
Before the mistrial, Kahan said the family was concerned that Harper might not have to serve time.
"It was strange to actually be hoping and praying we get a mistrial, never seen that before in my 30 years, but at least we got the mistrial and hopefully a new jury will see it a little bit more clearly and assess the maximum punishment of 20 years."
Harper was out on bond for evading arrest when he shot Kirk.
"Today is not the day to compromise, today is not the day to meet in the middle, today is not the day to negotiate," prosecutor Chandler Raine told the jury on Wednesday. "The last time that Lazarius Harper was allowed to be given rules and say you get to go be in the rest of the community, you get to go be in the rest of society, you get to go be out on bond, was one month before he killed Kevin Kirk."
Defense attorneys say that Kirk intentionally ran into Harper before he shot him.
"Don't fall trap to those emotional pleas, that's all they are. Only one person is going be affected by your decision today and that's Lazarius," defense attorney Maverick Ray said.
After the mistrial, Ray said this has all been hard on Harper's family too.
"Today's a tough day for them, this has been going on for over two years now for them as well," Ray said. "So they were looking for some resolution and closure and I feel like we've gotten maybe 50% of that but there's still a whole another battle to go."
Tempers flare over testimony Tuesday
Things got heated on Tuesday when Ray shouted at prosecutors in a Houston courtroom on Tuesday and was reprimanded by the very angry judge.
The attorneys had a sidebar with the judge after prosecutors mentioned that the defendant was in a gang, citing his social media.
Harper's attorney was animated and throwing his arms up before he slammed his fists down and screamed at the prosecutor.
"Why? Why didn't you ask them the truth first?" he said.
The judge quickly had the jurors removed from the courtroom and then he blasted the attorney.
"Don't you ever raise your voice in this courtroom again, do you understand? Is that clear?" the judge shouted. "Never disrespect the court in front of the jury, in front of anyone, ever, ever again! Let's get that clear right now!"
Who was Kevin Kirk?
Several friends and neighbors testified about Kirk's character during the sentencing phase. They described him as a family man who was kind and generous.
He left behind a wife, a 12-year-old daughter and a 9-year-old son.
"Kevin was an extraordinary man who baked amazing birthday cakes and was an Ironman Athlete and avid cyclist. He was also a protector of all life, including bugs," a GoFundMe.com page said.
Cheryl Draper was driving down Westheimer the night Kirk was killed.
"This is not a normal way for people to have to live -- that you go to the grocery store or you are going out to dinner and something happens and you are dead," Draper said. "It's just like cold-blooded murder; didn't even hesitate. Pulled out a gun and shot someone."
