A gun? No, Kyle West testified Tuesday. He did not have a gun when Andre Powe pointed one at him in the back seat of a car two years ago during the drug deal that resulted in the shooting death of Kyle's older brother, Shawn.
But Kyle told a Sacramento Superior Court jury exactly what he would have done if he'd had one.
"I would have shot him in the face when he was trying to get me in the back seat," West said.
Instead, prosecutors say, it was Powe who shot and killed Shawn West, 26, in what authorities described as a straight-out pot robbery.
They have charged Powe, 23, with special-circumstance murder in the Jan. 26, 2010, killing in the parking lot of Jack in the Box on Stockton Boulevard in south Sacramento. The trial concluded its second day of testimony Tuesday in front of Judge Michael A. Savage.
Powe's attorney, Dionne Choyce, said in his opening statement that his client shot West in self-defense. Choyce based part of his case on Powe's contention that the younger brother pointed a gun at him during a drug deal gone bad. Powe is expected to testify later in the trial.
In his testimony Tuesday, Kyle West, now 21, adamantly denied he was armed with a gun or anything else the night his brother died. He testified that his brother Shawn, similarly unarmed, put his life on the line to save Kyle's.
According to Kyle West's testimony, his brother was supposed to sell a pound of marijuana to an acquaintance named Cort Milgrim. He said his brother backed out of the deal when Powe unexpectedly showed up in the Jack in the Box parking lot. According to prosecutors, Milgrim and Powe had set West up.
Milgrim has since pleaded guilty to first-degree murder. He also admitted to child endangerment charges for bringing his then-14-month-old daughter to the robbery scene. Milgrim is facing a prison term of 28 years to life. His sentencing is pending.
Kyle West testified that he and his brother and a friend drove to the Jack in the Box to meet with Milgrim. When Milgrim arrived, West said, his brother got into Milgrim's car to consummate the deal. Just as quickly, Kyle West said his brother retreated from Milgrim's car when a third vehicle unexpectedly pulled in.
When Shawn returned to their car, Kyle West testified, Powe followed. He said Powe then leaned into the back seat, pointed the gun at him and demanded the pound of pot that was the subject of the deal.
Kyle testified that Powe fired his gun once, underneath the car, in an apparent effort to scare the younger brother.
It was then that Shawn West rushed Powe, his brother told the jury.
"He thought my life was in danger and was trying to protect me," Kyle West testified.
He said his brother lived in Grass Valley and brought a pound of marijuana from the foothills to sell for $2,800 in the south Sacramento transaction. The friend who drove the Wests to the parking lot, Ricky Sherrets, testified Monday that it was supposed to be a $1,200 buy.
Police and prosecutors said Powe never intended to buy the pot at any price, that it was a planned robbery from the beginning.
A one-time defendant in the case also testified Monday against Powe. Joel Satchell, 22, said that on the night of the killing, he agreed to give the other former co-defendant Milgrim a ride to pick up his check from work and buy some marijuana.
Along the way, Satchell said he and Milgrim met Powe, who drove a separate car. Satchell said Milgrim asked him to drive to the deal with Powe, who turned the wheel over to him on the way to the Jack in the Box.
In the short trip to the fast-food place, Satchell testified he heard some "metallic clicking" in the car, but didn't know what it was. He said he had no idea there was going to be a robbery or a shooting.
At the Jack in the Box, Satchell said he saw Powe get out of the car. He testified he never saw the shooting, but that he heard the gunfire. Right afterward, he testified, Powe got back in the car and said, "Get out of here."
A few hours later, after he retrieved his own car from Milgrim and left him and Powe together, Satchell said he got a phone call from the defendant.
"Everything will be OK as long as nothing is said," Satchell testified that Powe told him.
Satchell pleaded no contest last year to voluntary manslaughter and is set to be sentenced to a term of seven years and eight months, in exchange for his trial testimony.