Warrantless Entry Cost A Man His Life & Now Two Cops Are Indicted

Newport News Police Officers Indicted For Killing A Man During Forced Entry
WITHOUT A WARRANT

 

Man was Tasered, shot to death after officers barged into Newport News home without warrant, prosecutors say.

Henry “Hank” Berry III called Newport News police just before 4:30 p.m. on Dec. 27, 2019, saying his son was missing.

“Mr. Berry told the dispatcher that he had not seen (his son) since before Thanksgiving, and did not know where (the boy) was,” according to a recent court filing.

It was the last day of life for the 43-year-old Berry, who family members said was struggling with a mental illness.

What followed over the next three and a half hours culminated in Berry being Tasered — then shot to death — in a struggle with officers during an attempted misdemeanor arrest in his home in the city’s Oyster Point section.

A Newport News police officer, Sgt. Albin T. Pearson, 33, a 12-year police veteran, is charged with second-degree murder and other counts, while Officer Dwight A. Pitterson, 31, is charged with malicious wounding and other charges.

Prosecutors presented the probable cause statement — based largely on video captured by the officers’ body cameras — to a Newport News grand jury on Nov. 9, leading to the indictments.

Though the document is inherently one-sided — written by prosecutors seeking the charges — it’s the most detailed version of the Dec. 27, 2019 shooting. The case marks the first in recent memory of police officers on the Peninsula criminally charged in an on-duty killing.

Suffolk Assistant Commonwealth’s Attorneys Brandon Wrobleski and Almetia Hardman — handling the case after Newport News prosecutors recused themselves — introduced the probable cause statement as evidence at a Nov. 11 bond hearing.

They contended the facts of the case warranted keeping the officers locked up pending trial. The judge disagreed and issued bonds, but the Daily Press obtained the statement from the court after the hearing.

When he made the 911 call to Newport News Police that day, Berry told the operator that his 9-year-old son had been “missing” since before Thanksgiving.

But before responding to the apartment, on Nantucket Place in Oyster Point, Pitterson called the mother of Berry’s child, who officers had interacted with a few weeks earlier.

The mother, Jessica Schieffer, 37, told the officers the boy was OK — and that the 9-year-old was with her and her husband in the Midwest.

Schieffer told the Daily Press last year that Berry had been hospitalized for three days in early December 2019 with possible schizophrenia and bipolar disorder. She said Berry initially fled from officers trying to take him to the hospital, with her son in the car.

Shieffer said she told the officer that with Berry’s mental illness, “he might not remember” that he had lost custody of his son at a Newport News court hearing 10 days earlier.

When Pitterson and Pearson got to the Oyster Point apartment, Berry went out to the sidewalk and showed the officers a recording of a FaceTime video he had with his son — a weekly video visit coordinated by Schieffer.

Berry — who previously had custody of his son for 7 years — told the officers he was “concerned” about what he thought was a bruise near his son’s eye. “Mr. Berry’s demeanor was calm and polite, and he expressed confusion about where his son was,” the probable cause statement said.

Pearson told Berry that his son wasn’t missing, that the boy’s eye was OK — and that if he called 911 again, he’d be charged with falsely summoning a law enforcement officer.

When Berry again seemed confused and pressed the issue, officers told him to go to the courthouse the following Monday to get more information.

Pitterson told Berry his son was “safe” — but “refused to give any other details about (the son’s) whereabouts,” given that Schieffer had asked police not to tell Berry where she was living.

When the officers left, Berry began calling the Fairfax County Police Department, the statement said.

He told 911 dispatchers there about his son’s bruise, saying the boy could be with his maternal grandparents in Fairfax. Fairfax dispatchers told him to call Newport News Police, which could then get Fairfax involved if necessary.

Then, starting at 7:50 p.m., Berry called 911 in Newport News five times in a 10-minute stretch, the statement said. He was again talking about the injuries to his son, and “specifically requested” that different officers come to his home.

“Officer Pitterson and Sgt. Pearson assigned themselves to respond to the call ... despite being aware” that Berry “did not want them to come back to his home,” the probable cause statement said.

Pearson enlisted Police Officer Krystle Alexander, who was trained in crisis intervention, to come along, given that the officers “suspected that Mr. Berry might have a mental health issue.”

Officer Lemarcus Scott also responded because he had “some previous positive interactions with Mr. Berry.”

The four officers — Pearson, Pitterson, Scott and Alexander — met in the apartment complex’s parking lot to develop a “game plan,” the probable cause statement said. Pearson, 33, with 12 years on the police force, told the others that they were going to arrest Berry for falsely summoning law enforcement with the series of 911 calls.

Alexander knocked on the door, with Pearson and Pitterson next to her, and Scott around the corner.

“Mr. Berry opened his front door and stood inside the hallway of his home adjacent to the open door,” the probable cause statement said, saying Berry had a cell phone in one hand.

Alexander introduced herself to Berry as a Newport News police officer, and said she wanted to see the video of his son. She asked Berry to come outside to talk.

“No, I’d rather stand right here,” Berry replies.

“Well, Mr. Berry, you need to come out and talk to us at this point,” Pearson interjects. “You need to hang up the phone from 911.”

“I do not want to come outside,” Berry responds, taking a step back and starting to close the door.

That’s when Pearson “forced his way through the closing door,” with the three other officers coming in behind him, the statement said.

“Mr. Berry’s first words as police rushed inside his apartment were frantic yells,” the statement said. “They’re trying to kill me! They’re trying to kill me!” he said. “F*** you! God help me!”

Pearson grabbed Berry’s torso and “slammed” him into a wall, the statement said.

“This caused a large hole in the drywall, and it knocked a large glass clock off of the wall, destroying it,” the statement said. “Mr. Berry was then spun around and slammed into a different section of the living room wall.”

Without an arrest warrant or search warrant, prosecutors contended that the officers had no right to enter Berry’s home in the first place.

The statement said that the U.S. Supreme Court says that under the U.S. Constitution,

“any warrantless entry into a private residence ... is presumed to be unreasonable and unlawful.”

The officers could have gone into the home without a warrant if they had probable cause to arrest someone on a felony or certain misdemeanors. But they can’t go into a home without a warrant for most misdemeanors — including falsely summoning law enforcement with the 911 calls — unless the crime occurs “in their presence.”

As the officers tried to control Berry in his home, they told him he was under arrest — and that he needed to stop resisting.

“For what?!,” Berry replies. “What am I under arrest for? I didn’t do anything wrong! Stop this! Don’t touch me! I’m not under arrest, I haven’t done anything wrong! ... Help me!” Berry then directed profanities at the officers.

The group ended up “halfway down a hallway,” with the four officers either seated or laying on the floor near Berry, who was seated against a hallway wall.

Pitterson was directly in front of Berry, while Pearson was lying on the floor to Berry’s right, “trying to gain control of Berry’s right hand” to handcuff him, the statement said.

“Sgt. Pearson and Officers Pitterson and Alexander were actively wrestling with Mr. Berry to try to subdue him, without much effect,” the statement said. Alexander applied her thumb to a pressure point behind Berry’s ear, “without effect.”

“Put your hands behind your back or you’re gonna get Tased,” Pitterson told Berry at one point.

Berry “began to calm down and stop moving,” the probable cause statement said. But then Pitterson put his Taser “directly on Berry’s chest, right over his heart.”

“When Mr. Berry was barely moving, not visibly resisting, and not speaking to officers, Officer Pitterson elected to pull the trigger of his Taser,” the probable cause statement said.

Pitterson fired the Taser’s normal mechanism as if Berry were some distance away. He did not deploy the Taser’s less dangerous “drive stun” feature, in which officers press the Taser directly against an unruly person’s body and fire.

“Taser deployed,” Pitterson announced.

The Taser’s electrified prongs embedded into Berry’s chest, “but they got pulled out as Mr. Berry reacted ... by trying to get the Taser away from him,” the probable cause statement said. The officers were “grabbing Mr. Berry” and attempting to subdue him.

“This left the electrified prongs, which carry an extreme current of 50,000 volts, swinging unchecked around the other officers,” the statement said.

Alexander was hit in the leg by the prongs and was shocked. Though Alexander said later that Berry had gained control of Pitterson’s Taser, Pitterson told investigators that Berry was “grabbing at” his Taser, but “did not gain full control” over it.

Sgt. Pearson, meantime, was also shocked by Pitterson’s Taser “for several seconds,” the probable cause statement said, with prior court documents saying he was hit in the knee.

“Immediately, Sgt. Pearson took out his gun and shot Mr. Berry once in the back,” the probable cause statement said. “The single gunshot went through Mr. Berry’s heart and killed him.”

Officers Alexander and Scott were in the line of fire, the statement said, with prosecutors contending that Pearson fired “with reckless disregard for the safety” of the two officers.

Berry died from a single gunshot wound to the heart, the State Medical Examiner’s Office said. There were puncture wounds on his chest from the Taser prongs, and various cuts on his body from the altercation. He had no drugs or alcohol in his system.

The statement said Pearson explained that he shot Berry “Because he just wanted his officers to go home safely.”

Eleven months later, Pearson stands charged with second-degree murder, two gun charges, wounding in the commission of a felony, assault and battery, and entering a home against another’s property rights.

Pitterson is charged with malicious wounding, wounding in the commission of a felony, assault and battery and entering a home against another’s property rights.

At the Nov. 11 bond hearing, Pearson’s lawyer, Timothy Clancy, read part of an interview his client gave to investigators four hours after the shooting. In the statement, Pearson asserted that Berry had gotten control of Pitterson’s Taser.

“So Pitterson had no control over his Taser whatsoever?” a police investigator asked. “The Taser is completely out of the officer’s hands?”

“I don’t think that he had a hand on it,” Pearson said of Pitterson, saying he thought Berry had “full control” of the Taser.

When investigators asked Pearson where Berry was pointing the Taser, he replied: “He pointed it at the officers. I saw them trying to get it away from him.” Pearson added that he was “flat on his back” at the time.

“What were you thinking this whole time?” the police investigator asked.

“That he’s going to get control of me,” Pearson replied. “That he’s going to get control of my gun. He’s going to keep hurting one of the officers. He’s going to shoot one of the officers with the Taser, and we cannot stop him.”

Clancy also said at the Nov. 11 bond hearing that he disagreed with the “prosecution’s theory” of the case — that the officers’ entry into the home “starts a series of dominoes that resulted in these criminal charges.”

“It’s that theory of the case that we disagree about,” he told the judge.

Clancy declined to elaborate Tuesday, aside from saying that he didn’t agree that the attempted arrest was illegal, or that Berry’s property rights were violated when officers went into his home without a warrant.

“We look forward to the day when (a judge or jury) is presented with all the facts in this case,” Clancy said. “The public should be mindful that the probable cause statement was prepared for the sole purpose of getting indictments against my client.”

Pitterson’s attorney, Shawn Overbey, could not immediately be reached for comment. He has previously said he will strongly dispute the charges.

“I do not doubt that at the conclusion of this matter, Officer Pitterson will be exonerated of all the charges currently pending against him,” Overbey said.

R.I.P

Henry Kistler "Hank" Berry III, who was shot and killed by police in a home on Nantucket Place on Dec. 27