By Karen Hall

Editor

A Lewisburg man who was convicted of attempted second-degree murder four years ago could have a new trial, thanks to the work of local attorney Robert Dalton.

Jonathan Doran "Jon Jon" Tears, 35, was accused of shooting Gary Dejuan O'Neal outside the Soul Train Bar and Grill on May 11, 2008. In April 2009, a Marshall County jury convicted Tears of the attempted second-degree murder of O'Neal. Tears was also convicted on two counts of aggravated assault, unlawful possession of a weapon, and possession and use of a gun while committing a felony.

Circuit Court Judge Robert Crigler sentenced Tears to 15 years for the attempted murder, and 10 years on the weapons charges, to be served consecutively, and also consecutive to his sentence in another case, for which he was on parole at the time of the shooting.

Now, however, the Court of Criminal Appeals has reviewed the record, listened to new arguments, and decided to "vacate Petitioner's conviction for attempted second-degree murder" and "remand the cause for a new trial."

"We're very excited about that," said Dalton's partner Michael Auffinger when reached by telephone yesterday. The attorney explained Dalton was appointed by Crigler at least a year ago to represent Tears on appeal.

When asked when the new trial would take place, Auffinger said, "It's up to the state to decide if they have a new trial; if they don't re-try, he (Tears) goes home."

Everyone in Dalton's office worked on preparing the appeal, Auffinger said, but it was Dalton who went to Nashville to argue the case in front of Criminal Appeal Court Judges Thomas Woodall, James Witt Jr., and Robert Wedemeyer.

The judges' opinion is presented in a 52-page document, full of complicated legal jargon.

The facts of the case, as the jury heard them four years ago, were that Tears shot O'Neal outside the Soul Train. The defendant and victim knew each other because Tears has two children with O'Neal's cousin and, allegedly, their dispute concerned child support. It started with words exchanged and escalated into blows. Witnesses said Tears was losing the fight, and O'Neal had stepped back from him when Tears pulled a gun and fired a single shot, then ran away. Tears was arrested in Memphis 16 days later. A 9 mm semi-automatic pistol, matched to a shell casing picked up at the crime scene, was found on the roof of a nearby building a few days after the shooting.

O'Neal told the jury he spent five days in hospital with a punctured lung and two broken ribs. This was a life-threatening and extremely painful injury, according to the doctor who treated O'Neal at Vanderbilt University Medical Center.

Tears, represented by Michael Collins and Bill Harold of the Public Defender's Office, did not take the stand. The only defense witness was an eye doctor who examined Tears about three months after the shooting. According to the doctor's testimony, Tears was complaining about seeing flashes of light and black spots in his vision, which could have been caused by head trauma, apparently, O'Neal's punches.