Judge refuses to vacate Gregg’s murder conviction

By Wayne Ortman
Sioux Falls, South Dakota (AP) August 2010

A federal judge has refused to go along with a magistrate’s recommendation that a former National Guardsman be given another trial so he can present new evidence that he acted in self defense when he fatally shot a man running away from him.

James Allen Gregg argued his attorney was ineffective because he didn’t try to introduce evidence of alleged prior violent acts by James L. Fallis to show Gregg’s state of mind when five bullets hit Fallis in the back and killed him. A jury convicted Gregg of second-degree murder in 2005.

U.S. District Judge Charles Kornmann, who presided at the trial, said the testimony wouldn’t have changed the outcome.

“The fact is there was no logical or possibly believable evidence of self defense,” Kornmann said recently in denying Gregg’s request to vacate his conviction and sentence. “Nor could there be under the facts of this case, even with the jury being permitted to consider other claimed acts of violence by Mr. Fallis.”

Gregg, 29, of Harrold, is serving a 21-year prison sentence for the July 4, 2004, shooting death of Fallis, 26, on the Crow Creek Reservation.

Gregg was a member of a National Guard unit that was in Iraq for more than a year and was suffering from post-traumatic stress disorder when he shot Fallis, according to testimony at his trial.

He testified that he thought Fallis was running to get a gun from his vehicle. He said he kept firing his 9 mm pistol as Fallis ran because an injury from a fight hours earlier – in which witnesses said Fallis hit Gregg – affected his eyesight.

Prosecutors said Gregg sought revenge because Fallis and his cousin beat up Gregg after they were told Gregg spun his tires and kicked up rocks on Fallis’ new car.

Sioux Falls attorney Mike Butler, one of the attorneys now representing Gregg, said that he expects Kornmann’s July 30 ruling will be appealed.

Gregg sought to vacate the conviction after a federal appeals court upheld the conviction.

U.S. Magistrate John Simko supported Gregg’s request for a new trial in a report and recommendation to Kornmann. Simko said at least one incident in Fallis’ past would likely be allowed at a new trial and might change the outcome.

Trial attorney Tim Rensch said in an affidavit that he didn’t think information about Fallis’ past would be allowed at trial so he didn’t try to get it introduced.

Kornmann said even if Rensch provided ineffective counsel, it wasn’t prejudicial.

“The question before the jury was what happened on July 3 and 4 of 2004, not what may have taken place five years prior to that,” Kornmann wrote.

Gregg stood trial on alternate counts of first-degree murder and second-degree murder.