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Home > Blogs > Dayton Courts: Legal and crime news > Archives > 2009 > June > 12 > Entry
Defendant takes witness stand in McClendon trial, denies intending to kill victim
DAYTON — Kyle McClendon took the witness stand Friday, June 12, denying that he meant to kill David Driscoll and saying the other witnesses were lying about what happened.
“I was defending myself,” McClendon said. “I didn’t intend for him to die. I ain’t no murderer.”
McClendon, 23, of Trotwood, who is also charged with felonious assault and improper handling of a firearm in a motor vehicle. All of the charges include gun specifications, which would automatically add three years to any possible sentence.
McClendon and Driscoll were strangers who met by chance Feb. 8 at the Marathon gas station, 4351 Riverside Drive, Harrison Twp. During opening statements Tuesday, assistant Montgomery County prosecutor John Amos said Driscoll was the victim of a cold-blooded execution, while defense attorney Barbara J. Doseck said video footage would show Driscoll was the aggressor.
George DeLaVergne and Kelly Altic, friends of Driscoll, testified Wednesday that they were walking through the parking lot when McClendon pulled up in his car, stopped, then revved his engine. Later inside the store, McClendon appeared agitated, pacing around and muttering under his breath, Altic said.
McClendon bumped into DeLaVergne sand said “Out of the way, homeboy,” DeLaVergne said.
At that point, the two left the store, but Driscoll, who was still buying cigarettes, had words with McClendon, they said.
McClendon denied all of that on Friday.
“Kelly is lying,” McClendon told assistant Montgomery County prosecutor Dan Brandt. “George is lying.”
McClendon also said that a Marathon clerk was lying when he testified that he heard McClendon tell Driscoll that they should “take it outside.”
Video footage, introduced as evidence, shows much of the incident, both inside and outside the store. The jury viewed the shooting yesterday. That portion of the video shows Driscoll walking out toward McClendon, who is at his car by a gas pump. Driscoll takes off his jacket and puts it on the ground. McClendon steps away from his car, and the two seemingly square off.
After several seconds, the two shake hands and hug. Driscoll picks up his jacket, then walks back toward McClendon’s car, and McClendon shoots him.
McClendon testified that, when he and Driscoll spoke in the store, Driscoll asked him to sell him drugs, but McClendon wasn’t interested.
McClendon said that he was frightened because Driscoll seemed to be “on something” and because Driscoll was bigger than he was. McClendon said he retreated to his car, began pumping gas, but also got his gun. He said he was also afraid because Driscoll had friends with him who were now hiding behind the gas station.
On Wednesday, Altic and DeLaVergne testified that they were hiding because they were scared of McClendon.
When the two squared off, McClendon said, he was holding his gun, so Driscoll knew he was armed. After they two hugged, McClendon said, he thought the incident was over.
Instead, McClendon said, Driscoll picked up his coat and walked toward him with his hands covered, so McClendon was afraid he might have a weapon. He decided to shoot, he said.
“I was just trying to back him up, so I could get away,” McClendon said.
Later, as he hid at a friend’s apartment, he said he was “praying to God. I didn’t want him to be dead.”
McClendon testified that he placed the gun under a dresser. Sheriff’s deputies testified they found it under a pillow on the bed where McClendon was sleeping. McClendon said they must have put it there.
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