Prosecutors must prove Fargo convenience store killing was not self-defense, judge says

FARGO — A man arrested after a shooting outside a convenience store pleaded not guilty to a murder charge Monday, Oct. 4, with the judge telling prosecutors they need to prove the killing was not in self-defense.

Raymond Christopher Gunn, 40, is accused of fatally shooting 41-year-old Eric Hayes of Fargo on July 24 at Loaf ‘N Jug, 1201 N. University Drive, next to the Bison Turf bar and across the street from North Dakota State University.

Gunn’s defense team tried to show he acted in self-defense after multiple arguments and confrontations. Prosecutors said self-defense should be argued at trial, and not during Monday's preliminary hearing.

After listening to each side's arguments and watching video of the shooting, Cass County District Judge Tristan Van de Streek agreed that the case should proceed but that the prosecution's burden was to prove Gunn was not acting in self-defense.

“Gunn had many opportunities to walk away during this incident. If he believed that Hayes was reaching for his gun, why didn't he leave?” prosecutor Renata Selzer said. “Gunn did have a duty to retreat because he was involved in unlawful activity. That illegal activity gave him the duty to retreat, which he didn’t do.”

“It’s no secret that if this case goes to trial, this will be a case of self-defense and defense of others,” said Tracy Hines, a defense attorney for Gunn. “In our view, there is not probable cause that the crime of murder has been committed, even looking at all the evidence submitted. Probable cause for the crime of murder does not exist.”

Van de Streek lowered Gunn’s bond from $500,000 to $100,000 after Hines said Gunn had been living in Fargo for four years and had an apartment where his family from Chicago comes to visit. Gunn’s original bond was set at $1 million.

During the hearing, attorneys played surveillance video from Bison Turf and Loaf ‘N Jug cameras that showed Hayes had a large knife and may have tried to grab a firearm from Gunn’s waist minutes before the shooting.

The video showed Gunn walking away from his conversation with Hayes, but Gunn returned and pulled out what appeared to be his firearm. Gunn then walked out of the video frame but returned when Hayes and a man named Jerod Robinson were heatedly discussing an unknown topic.

The prosecution noted that Gunn struck Hayes in the head, and then Hayes advanced toward Gunn. Gunn walked backward around a car, and then shot Hayes in the stomach after Gunn fell down.

The defense pointed out that the medical examiner’s report did not show that Hayes had any injuries to his head, and tried to show that Hayes may have brandished his knife, which was longer than 5 inches.

The prosecution called on Fargo Police Officer Nick Kjonaas as a witness, who responded to the Loaf ‘N Jug after 11 p.m. on July 24.

Kjonaas testified that Gunn told officers that the man he had shot had grabbed his gun. According to Kjonaas, Gunn told police: “I don’t like shooting people. That was a good shoot. I only shot once. I didn't mean to shoot that guy. He pushed me down on the ground, knocked me over and took my gun.”

While Hayes was on the pavement, Gunn and Robinson disappeared from video footage to call 911, according to Kjonaas. After several minutes, Gunn returned to Hayes’ side, and a crowd gathered around. Hayes later died at Sanford Medical Center.

Bredahl pointed out that racism may have contributed to growing hostility before the shooting. Police interviewed Hayes’ relatives who said he was a “hothead” after drinking.

“Did they also tell you that Hayes was very racist and that (he) did not like people of color and can be confrontational?” defense attorney Nicole Bredahl asked.

“Yes,” Kjonaas said.

“Are you aware that Hayes had an acute ethanol intoxication? And recent meth usage, according to the medical examiner’s toxicology report?” Bredahl asked.

“You are correct,” Kjonaas said.

After the hearing, Bredahl told The Forum, "This is the first step in a long line of hurdles for Gunn to overcome, but we’re very pleased that his bond was reduced.”