Jury declares Delgross guilty of murder

An Orange County man accused of first degree murder will spend two decades behind bars for beating his neighbor to death with a carpenter’s level.
Gary Delgross sat motionless at the defense table for hours through the first day of his trial last Thursday in Orange County Circuit Court, while witnesses testified about what they’d seen and heard on Aug. 17, 2008 when 31-year-old Holland James “Jamey” Penton Jr. was beaten to death. According to police, Delgross killed Penton after a night of verbal sparring escalated into a deadly physical fight.
Delgross struck Penton several times with a four-foot, metal-edged carpenter’s level, Orange County Commonwealth’s Attorney Diana Wheeler told the jury. And at least one of those brutal blows, she said, was the cause of Penton’s death. Wheeler said Delgross acted with premeditation, malice and intent when he killed Penton, justifying the first degree murder charge. But Delgross’ attorney, Michael Hallahan said his client had only acted in self defense, and a lesser, manslaughter charge was appropriate.
In her opening statement Thursday, Wheeler described a series of scuffles and disagreements which occurred in Delgross’ and Penton’s neighborhood earlier in the evening of Aug. 17. But things grew deadly, she said, when Penton approached Delgross with an axe handle, which broke, and again a little while later, with the handle of a shovel.
Delgross, with the level he kept in his work truck, delivered a disabling blow to Penton’s neck which knocked him to the ground, unconscious, Wheeler said.
“When [Penton] was struck there, he fell like a sack of potatoes and he never moved again. That’s the defendant’s story,“ Wheeler said. But while Penton was down, Wheeler said Delgross continued to hit him, repeatedly, in the shins, the hands and the head.
“Is it self defense when someone is down and unconscious to continue to beat them with a metal-edged level?“ she asked.
Hallahan said his client was simply acting in self defense when Penton came at him first with the axe handle, and then again with the handle of a shovel. Hallahan said Delgross was protecting himself against an aggressive, combative and far younger opponent.
The prosecution called a series of witnesses to the stand, including sheriff’s deputies and investigators, forensic scientists, and individuals who had seen Penton and Delgross’ altercations back in August 2008. Startlingly dramatic testimony came from Delgross himself, when Wheeler played recorded footage from Orange County Sheriff’s Office Sgt. Jason Smith’s patrol car, and from a 911 call Delgross made, summoning an ambulance for Penton after the fateful fight.
Smith was the first law enforcement officer to respond after Delgross called for help. On the playback of the 911 tape, Delgross casually said Penton was lying out in the yard. The 911 operator directed Delgross to see if Penton was breathing, and by the time Smith arrived, and his dash cam began recording, Delgross’ demeanor had changed dramatically.
The jury of seven men and five women watched footage from Smith’s dashboard camera as he arrived on the scene, and found the defendant collapsed in a fetal position, sobbing uncontrollably and hardly intelligible, as Penton lay lifeless in a nearby yard.
Smith testified that he’d placed Delgross in the back seat of the patrol car and raced over to help Penton, who was covered in blood from obvious wounds to his head. Meanwhile, from the back seat of the police car, Delgross said over and over, “I killed him, didn’t I? I didn’t mean to hit him that hard!“ Smith testified.
Witnesses who had been at the scene earlier that night remembered that Delgross and Penton’s brother Wayne had been involved in a fist fight earlier in the evening of Aug. 17, 2008. Jamey Penton broke the fight up, witnesses said, only to exchange blows with his brother. The men were at odds after Jamey Penton became angry that the initial fight between Wayne Penton and Delgross had occurred in his home, and in front of his teenaged daughter. 
Police were called, but once they arrived, Smith said, nobody wanted charges pressed, or was even willing to respond to police questions about the scuffles. Just hours later, however, emergency personnel were again dispatched to the Lahore neighborhood after Delgross dialed 911, and that’s when Smith responded a second time—to a much more serious situation.
According to Delgross’ statements to police following his arrest, he and Penton had tussled again after law enforcement officers responded to the first fight. But this time, Delgross said instead of with their fists, the men had fought with weapons.
Orange County Sheriff’s Investigator Bob Canosa testified that Delgross said while he sat on the porch of a neighbor’s house, drinking beer and talking, Penton emerged from his house nearby and started towards Delgross, armed with a wooden axe handle. Penton swung at Delgross, who deflected the blow and broke the axe handle with a “karate chop.“
Canosa said Delgross stated that Penton returned home, and came at Delgross again, this time with what he thought was a red pipe. Delgross retrieved his four-foot-long level from his truck, and the men fought again, according to Canosa.
Then, Delgross admitted he’d struck Penton in the neck, and Penton “dropped like a sack of potatoes.“  Delgross said he’d hit and kicked Penton at least twice more once he was lying on the ground.
On the trial’s second day, medical examiner Dr. Shane Chittenden, who performed the autopsy on Penton’s body, testified for the Commonwealth that Penton died from blunt force trauma to the head. Chittenden said either of two skull fractures—one at the front of the skull and one on the side—could have resulted in the brain swelling and bleeding which ultimately resulted in Penton’s death.
Additionally, Chittenden said there were other injuries, including a 2” by 1 ¼“ bruise at the side of Penton’s neck, and injuries to his abdomen which caused internal bleeding. None of the injuries had been sustained post-mortem, Chittenden testified.
Under cross examination by Hallahan, Chittenden said it was not possible to determine whether Penton had sustained his injuries while standing or while lying on the ground.
Friday, the jury heard closing arguments while close to 20 of Penton’s family and friends filled the seats in the Orange County Circuit Courtroom. Meanwhile, Delgross resumed the frozen head-down, gaze floorward pose he’d held the previous day.
As he closed, Assistant Orange County Commonwealth’s Attorney Rick Moore said Delgross’ actions clearly showed he had acted with malice, with intent and premeditation—not in self defense.
“One thing this case is not, is self defense,“ Moore said. “When [Penton] is lying on the ground incapacitated, what’s the self defense in that? [Delgross] said he continued to beat him with the level and he kicked him at least once on both sides. That’s the defendant’s own admission.“
Witnesses corroborate that following the two men’s first fight that evening, Delgross shouted at and taunted Penton continually, Moore said. And while no DNA evidence was found on either the axe handle or the red stick witnesses said Penton had wielded, Penton’s blood had been found on Delgross’ level, and on Delgross’ shoe, he added.
But in Hallahan’s closing argument, he maintained his client only acted in self defense, after Penton attacked Delgross armed with first one weapon, and then another. Therefore, he should not be found guilty of first degree murder, but of a lesser charge, Hallahan said.
The jury deliberated for only a couple of hours before reaching a decision: Delgross was guilty of second degree murder. Penton’s family members wept softly as the clerk read aloud the jury’s finding.
Before Orange County Circuit Court Judge Daniel Bouton sent jurors back to deliberate on a punishment for Delgross, he advised the charge of second degree murder carries a mandatory punishment of incarceration of five to 40 years, with no eligibility for parole. 
In less than 30 minutes, jurors returned with a recommendation of 20 years in prison. Delgross will return to court for a formal sentencing hearing Feb. 26.