Jury selected, testimony begins in retrial of man in Myrtle Beach police officer killing

Myrtle Beach police officer Joe McGarry’s last recorded words were the name and date of birth of the man accused of shooting him in the face and killing him outside Dunkin Donuts in 2002, according to audio recordings and testimony in the first day of a retrial.

A jury panel of 16 Horry County residents, including four alternates, was seated Monday morning before testimony started just after lunchtime in the retrial of 36-year-old Luzenski Allen Cottrell of Myrtle Beach.

It took a week for attorneys to pull the jurors from hundreds who were called to Conway on Sept. 15 for jury duty in the case. After extensive interviews, 11 women and five men were chosen.

Cottrell is being tried on the charge of murder in the shooting death of McGarry. If convicted of the charge, jurors will then decide if Cottrell should be put to death.

In April 2005, Cottrell was convicted of murder by a jury and sentenced to death in the 28-year-old’s killing while he was on duty.

Cottrell appealed the decision and in January 2008 the S.C. Supreme Court overturned his conviction and death sentence. Justice Costa Pleicones stated that the court erred in not giving jurors the option to convict Cottrell of the lesser charge of voluntary manslaughter.

This time jurors will have the option to find Cottrell acted in self-defense or the manslaughter charge.

On Monday during his opening statements, Cottrell’s Columbia based attorney William McGuire told jurors that Cottrell acted in self-defense because when the two men struggled in the parking lot McGarry’s gun discharged.

“Officer McGarry accidentally discharged his gun and shot Allen Cottrell. When they separated Allen Cottrell does pull a gun and shoot Officer McGarry,” McGuire said. “Allen Cottrell is not guilty of this charge. Self-defense or voluntary manslaughter are the only two choices you will have left. Allen Cottrell fired back to save his life.”

But Solicitor Jimmy Richardson told jurors that it only took 81 seconds for McGarry to be killed and his fellow officer, Mike Guthinger, to get into a gunfight in the parking lot of the business at 3001 N. Kings Highway.

“In 81 seconds there will be a firefight, a gunfight and Joe will be dead. The end of his service,” Richardson said. “When Joe called in that information everything changed.”

Lt. Amy Prock testified Monday that on Nov. 25, 2002, she spoke with McGarry about Cottrell after receiving information from Horry County police that they considered Cottrell a suspect in the shooting death of Richard Hartman.

Police at the time of McGarry’s death said Cottrell and Fred Halcomb, who was in a separate car in the Dunkin’ Donuts parking lot the night McGarry was killed, lured Hartman out of his River Oaks apartment Nov. 23 with the promise of a drug deal and planned to rob him.

At the meeting, Cottrell got into Hartman’s vehicle with a gun and shot and killed him. Hartman was later found in his vehicle near the

junction of River Oaks Drive and Carolina Forest Boulevard.

Horry County police charged Cottrell in Hartman’s death, but later dropped the charges after his conviction in McGarry’s death.

Cottrell and Halcomb also each was convicted and sentenced to life in prison for the November 2002 shooting death of Myrtle Beach resident Michael Jonathan Love in Marion County.

When McGarry and Guthinger went into the Dunkin’ Donuts shop that night, Guthinger testified that McGarry immediately recognized Cottrell and said to him that Cottrell was a suspect in an Horry County shooting. McGarry had written traffic tickets to Cottrell a few months before the incident.

“At that particular time Joe looked up and pointed [in Cottrell’s direction] and he said suspect, 10-61, 10-32, county and he was very serious when he said that,” Guthinger testified. “He went from happy Joe to police mode.”

The officers waited for Cottrell and several people with him to leave the business before they confronted him on the sidewalk outside. McGarry got Cottrell’s license and had radioed to dispatchers the spelling of Cottrell’s name and his date of birth for any active warrants when the shooting started, Guthinger testified. He had stepped to a nearby car and asked the driver, Halcomb, for his license because they thought the men were together.

Immediately after the radio transmission, which was played for jurors Monday, McGarry then yelled at Cottrell to show his hands and Guthinger said he looked up to see McGarry struggling to get Cottrell’s right hand from the front of his pants.

“His voice went from calm and it escalated. He was trying to control that right hand,” Guthinger said. “I heard Joe say ‘let me see your hands. Let me see your hands.’ Joe was struggling to control that right hand.”

Guthinger said he began to walk around the vehicle to McGarry and got near the men when they stumbled during their struggle.

“Joe let go. At that time they both squared up . . . Both of them squared up and faced off of each other. The next thing I know I saw a gun flash and I saw Joe get shot in the face,” Guthinger testified. “It was a flash, a shot and a second shot. I watched Joe, who was right here [he gestured in front of him] and Joe fell.”

Guthinger then drew his weapon and began to exchange gunfire with Cottrell, who was armed with a .45-caliber semiautomatic handgun, as the men crouched down behind vehicles in the parking lot. At one point, Guthinger said Cottrell yelled, “I give up. I give up. Don’t shoot me.”

But as Guthinger tried to get closer, he saw Cottrell’s legs move toward the back of a vehicle and then out of sight before more gunshots were fired at him. Cottrell got into the rear of the vehicle he was hiding behind and it sped out of the parking lot.

“Joe was laying there, helplessly. They almost ran him over when they backed out,” Guthinger said. After the car left, Guthinger and another officer, who had arrived, performed CPR on McGarry until EMS arrived and took him to the hospital where he later died.

Officer Chad Mullinex had arrived at the parking lot and followed the Honda Accord that drove away with Cottrell in the backseat, Mullinex testified Monday. Officers chased the vehicle from the parking lot to near 76th Avenue North on U.S. 17 Bypass before it stopped after stop sticks deflated its tires. A woman had driven the car and was later identified as Cottrell’s then girlfriend.

Cottrell was taken into custody from the rear of the car and police found the .45-caliber gun and a .357-caliber handgun inside. Both had blood on them and Cottrell’s fingerprint was found on the magazine of the .45-caliber gun, agents with the State Law Enforcement Division testified.

Testimony is set to resume Tuesday morning.

This story was originally published September 22, 2014 at 9:28 PM with the headline "Jury selected, testimony begins in retrial of man in Myrtle Beach police officer killing."