Sun, Jul 05, 2009
Phillip Musgrove

Tucson Region

Trial starts in crash that killed 2

Prosecution: Speeder's recklessness wreaked chaos at Campbell-Speedway
By Kim Smith
ARIZONA DAILY STAR
Tucson, Arizona | Published: 10.08.2008
It was a football Saturday night. Washington State University had just lost to California and Brandon Zaro and his buddies decided to head to Zaro's place from the sports bar where they'd watched the game.
The plan was for them to park Andrew Gerla's rental car and walk to a bar near Zaro's house.
They made it two blocks — to the intersection of North Campbell Avenue and East Speedway.
"I saw a flash of light off to the right," Zaro recalled Tuesday. "It was a bright light and that was right before the impact."
The next thing he remembers is the Chrysler Pacifica spinning and then a second impact.
Once they came to rest, Zaro jumped out of the car and looked through the windows for his friends.
Gerla had already made it out of the car safely.
Thomas Flynn and George Moon were nowhere to be seen. They'd been ejected.
Craig Gmur was trapped inside.
Tuesday was the first day in the trial of the man accused of plowing into the Pacifica that night last November — Phillip Musgrove, 23.
Zaro was the first witness.
Musgrove is facing two counts of second-degree murder, six counts of aggravated assault, 19 counts of endangerment and a single count of criminal damage.
The second-degree murder counts stem from the deaths of Flynn, 21, and Gmur, 24, both of whom died at the scene.
Flynn was from Trabuco Canyon in Southern California. Gmur was from Seattle, but stationed at a naval base in San Diego.
Deputy Pima County Attorney Casey McGinley told jurors the evidence will show Musgrove was driving in excess of 84 miles an hour when he plowed his mother's Nissan Maxima through two lanes of stopped cars, ran a red light, slammed into the Pacifica and then into another car.
The force with which he hit the Pacifica was such that his right front rim sheared in half, McGinley said, showing it to the jury.
McGinley told the jury they will hear from 32 witnesses, including a police officer who was in the area writing a jay-walking ticket, people staying at a nearby high-rise motel, pedestrians and the occupants of the other cars.
After hearing the evidence, McGinley said he is sure the jury will find that Musgrove's behavior was "unjustifiable" and they will convict him.
Assistant Pima County Public Defender Leo Masursky told jurors they will have to decide for themselves if Musgrove's actions that night were criminal in nature. He suggested that perhaps Musgrove was "over-charged."
Blood tests showed Musgrove didn't have alcohol or drugs in his system, Masursky said.
"If you don't find that he was driving recklessly, you must acquit him," Masursky said.
Someone who behaves recklessly is someone who is aware of the risks and consciously disregards them, Masursky explained.
Zaro, who now lives in Washington, testified it had been more than a year since he'd seen his friends. They'd rented a car in San Diego, where some of them were stationed, and made the six-hour trek to Tucson.
He ended up driving home that night because he was the most "stable," Zaro said.
Although he'd told police he'd stopped drinking at 2:30 p.m. that day, he'd actually stopped around 10 p.m, Zaro said.
He ate a hamburger and french fries that night and drank three or four Miller Lites, Zaro testified.
"I felt no effects," Zaro said.
Pima County Superior Court Judge Howard Fell is presiding over the trial, which is expected to take nine to 10 days.
The jurors don't know it, but Musgrove has been charged with homicide twice in the past but never convicted.
He was acquitted of first-degree murder in the death of Michael D. Green, 21, who was shot in June 2003.
He was also charged with first-degree murder in the February 2006 shooting death of Michael Tyrone Lopez, 33. The charge was later dismissed without prejudice, which means it can be refiled.
Musgrove and his uncle, Danny Musgrove, were both accused of killing Lopez.
Lopez and Danny Musgrove, 44, got into a fight at the bar of the Veterans of Foreign Wars post at South Park Avenue and East 33rd Street after Musgrove dropped a lighter he had borrowed from Lopez, according to Star archives.
Lopez took it as a sign of disrespect, which led to a fight. Lopez was shot and killed at his home more than an hour later. Danny Musgrove was convicted of first-degree murder and is serving life in prison.
Masursky contends authorities over-charged Musgrove because they were upset he wasn't convicted of either homicide. McGinley asked Fell to preclude Masursky from telling jurors that.
The judge has told Masursky if he intends to suggest such a thing, he must request a conference at the bench first.
The jurors also don't know Zaro was charged with driving under the influence the night of the crash - although that charge was later dismissed.
● Contact reporter Kim Smith at 573-4241 or kimsmith@azstarnet.com