Unusual Case of Drug-Raid Death in Hands of Jury

Mack Charles Moore didn’t fire the gun that killed Dexter Herbert. In fact, it was a Gardena police officer who shot Herbert during a narcotics raid last year. But Moore is standing trial for second-degree murder in Torrance Superior Court because, prosecutors say, he provoked the shooting.

In closing arguments Thursday, prosecutors said Moore should have realized what the consequences would be when he turned, with a shotgun in his hands, toward a police officer during the raid.

Moore turned on the police officer in an angry manner, head Deputy Dist. Atty. Gilbert L. Garcetti said, prompting the officer to fire his own gun. The bullet missed Moore but struck Herbert, killing him.

“He should have realized the grave consequences,” Garcetti said as he urged the jury to find Moore guilty because he provoked the shooting.

But Moore’s attorney countered in his own closing argument that too many questions linger in the case for the jury to find Moore guilty, including the question of whether Moore even held a gun in his hands at the time.

“There’s only one witness who claims to see Mack Moore with that gun, and that’s Mr. Mathieson,” said Moore’s attorney, Jeffrey Gray, referring to Gardena Police Officer David Mathieson, who shot Herbert.

The shooting occurred March 24, 1989, during a police Special Weapons and Tactics narcotics raid on a Budlong Avenue apartment in Gardena.

According to trial testimony, three Gardena police officers entered the apartment moments before the shooting, and several others were on their way.

Moore was at the end of a hallway, his back to Mathieson, allegedly holding the shotgun. Mathieson testified that he dropped to one knee, pointed his own 9-millimeter gun at Moore and ordered him several times to drop the gun. Mathieson testified that Moore began to pivot toward him, pointing the gun slightly downward. As Moore turned, Mathieson fired, accidentally striking Herbert.

Defense attorney Gray attempted to portray the circumstances as tense and anxiety-provoking.

“I’ll tell you what happened: There was an accidental shooting,” Gray told the jury. “Imagine what it must be like to be a SWAT member--the intensity, the anxiety.”

If jurors find Moore innocent, that doesn’t mean they have determined Mathieson is a “bad guy,” Gray added. “All it says is, ‘Mack’s not a murderer.’ ”

The prosecution, however, returned again to the issue of provocation.

“What we have here, ladies and gentlemen, is not an accident,” Garcetti said. Instead, he said, Moore committed an intentional act that led to Herbert’s death.

Prosecutors and the defense attorney said the provocative act argument is not used frequently. The prosecution is using the argument on the grounds that Moore, by turning and lifting the gun in the the presence of police, committed an act knowing the response could be fatal, Deputy Dist. Atty. Irene Wakabayashi said.

Jury deliberations began Thursday afternoon.

Times Staff Writer Janet Rae-Dupree contributed to this story.