Although a U.S. Attorney’s office criminal investigation into a May 28 drug bust that resulted in severe injury to 19-month-old Bounkham “Bou Bou” Phonesevahn is still ongoing, a Habersham County Grand Jury has determined that there was “no evidence of criminal intent or criminal negligence on the part of any law enforcement officer involved,” in the incident.
Late Monday afternoon, Oct. 6, following six days of deliberation, the 20-plus member grand jury filed a report detailing their findings and recommendations.
“The grand jurors gave serious and lengthy consideration as to whether to recommend criminal charges against the case agent in this matter,” states the 16-page report. “Ultimately, we do not recommend criminal charges based upon the totality of the evidence. However, the case agent, by and through counsel, has voluntarily surrendered the agent’s Peace Officer certification and thus ability to work making arrests and writing search warrants. The grand jurors unanimously agreed that this was ultimately more fitting of the circumstance and more appropriate than criminal charges and potential jail time.”
Likewise, no basis was found by the grand jurors for criminal charges against any of the SRT members, including the deputy who threw the flash grenade device.
The Grand Jury convened at the Habersham County Superior Courthouse on Sept. 29, where District Attorney Brian Rickman presented results of the six-month-long investigation into the May police raid at a Lakeview Heights Circle home near Cornelia.
Sleeping toddler injured in raid
The raid was staged as part of ongoing drug sting conducted by the Special Response Team – a joint unit consisting of Habersham Sheriff deputies and Cornelia Police officers. According to Habersham County Sheriff Joey Terrell, the SRT had made an undercover drug buy at the Lakeview Heights Circle house just a few hours prior to the raid and had obtained a no-knock warrant. At approximately midnight on May 28, the team attempted to enter the residence and found the front door blocked from the inside.
Forcing the door open, officers tossed a “flash bang” into the house, not realizing that a portable playpen had been pushed up against the inside of the door, and that Phonesevahn was asleep inside the playpen.
The flash grenade landed inside the playpen, causing severe burns and wounds to the toddler’s face and chest.
Phonesevahn’s sisters and parents, who were also sleeping in the room, were not injured.
No drugs or guns were found during the raid. The target of the raid, Wanis Thonetheva, was not present at the home, but was arrested later and charged with drug possession, according investigation records.
The Phonesevahn family, whose Wisconsin home had burned in April, had been staying at the home with Thonetheva, who is the nephew of Alecia Phonesevahn.
Prior to the raid, a confidential informant had told officers that there were no children present in the home, according to statements made by Terrell following the incident.
Sloppy procedure, not criminal negligence
In addition to being charged with determining if any criminal charges should be filed against the SRT, its leaders or members, the grand jury was instructed to determine whether the raid in was handled appropriately.
While the jurors recommended no criminal charges, the grand jury report and presentment did detail several issues of procedural deficiencies in connection with the raid, and recommendations for corrective policies and procedures.
“The drug investigation that led to these events was hurried, sloppy, and unfortunately not in accordance with the best practices and procedures,” jurors stated in the report. “While no member of this grand jury condones or wishes to tolerate drug dealers and the pain and suffering that they inflict upon a community, the zeal to hold them accountable must not override cautious and patient judgment.”
Thorough incident investigation
In the report, jurors praised the thoroughness of the District Attorney’s office and several individuals and departments in investigating the raid and the surrounding circumstances.
“The Grand Jurors wish to commend the professionalism of those who presented this evidence to us, and those who conducted this investigation,” they stated in the report. “We wish to praise the professionalism, transparency and straightforward manner in which district attorney Brian Rickman, chief assistant district attorney Eddie Staples, assistant district attorney George Christian and Coweta Circuit District Attorney Pete Skandalakis all conducted themselves.”
The GBI and FBI involvement in the investigation was also commended by jurors.
“Both the GBI and FBI participated in the investigation and interviews, and it is our opinion that they did an exemplary job of asking the appropriate questions and gathering the relevant evidence,” jurors said. “We wish to commend and praise the work of special agent Ben Couch of the GBI, in both his investigation and his testimony before us. All questions that we asked were answered, and all evidence we wished to see was presented on request without hesitation.”
Rickman, in an interview with Now Habersham early this morning, Tuesday, Oct. 7, said the jurors also deserved thanks and appreciation for their service.
“They (the jurors) went to really great lengths to go through and analyze everything that happened from different angles,” he said. “I was very impressed. Different people may disagree on what the results ought to be, but the process was a very good process.”
Rickman said the jurors were very cognizant of the attention on this case, and the importance of their deliberations, and were very involved in the processes. “There were tears in the grand jury room,” he said of the six-day hearing that included presentation of documents and evidence as well as live testimony by Sheriff Terrell, Alecia Phonesavanh, and members of the DA’s investigation office who were involved in the incident review and investigation.
Lingering impact and implications
Jurors acknowledged the severity of the incident, and addressed the impact on the Phonesevahn family.
“We wish to express our sympathy to the Phonesevahn family. Nothing can be more difficult and heart wrenching than injuries to one’s child. Many of our members are parents, grandparents, and people who work with children on a regular basis,” the report stated. “Our group attempted to try and understand what it must have been like to have gone through and lived through this situation, realizing that it is not possible to know or understand what it truly felt like.”
Jurors also addressed the impact on the officers involved in the raid.
“We have also seen and heard the very real sadness, regret and anguish in law enforcement officers who were invoked in these events, and we wish to extend our sympathy also to the law enforcement officers involved,” they stated. “Rather than seeing unfeeling or uncaring robots, what has not been seen before by others and talked or written about, is that these individuals are suffering as well. We have seen and heard genuine regret and sadness on the part of the law enforcement officers involved, and we think it is fair and appropriate to point out that they are human beings as well.”
Although not legally binding, the grand jurors report and recommendations will be considered not only in any further action regarding this incident, but in addressing policy and procedural issues in a wider context.
“The safety and protection of the public must be the foremost concern, together with the safety and protection of law enforcement officers. Policymakers, agency heads, and elected officials should seek to make sure that this is kept in mind at all times,” jurors said. “We have requested that the District Attorney ask that our local state representative read this entire report and findings to the entire General Assembly at the next legislative session, and have instructed the District Attorney to send a copy to the Georgia Sheriff’s Association and the Georgia Association of Chiefs of Police so that perhaps it can be widely spread in the hope that they might find it of value in training and carrying out their important work.”
Now Habersham will provide a thorough review of the Grand Jury findings and recommendations in a follow-up article this afternoon.
