An Indianapolis man will serve no time in prison after shooting and killing a Whiteland graduate in front of his southside home last year.
Albert Rogers, 27, pleaded guilty to aggravated battery and was sentenced to home detention and probation, after initially being charged with murder.
During the death examination, a doctor told police 31-year-old Josh Tucker was shot in the back. The Marion County Prosecutor’s Office took that information and charged Rogers with murder.
When the autopsy report was released two months later, it stated the opposite: Tucker was struck in the front of his body, not the back. Prosecutors asked for a review and second opinion, and it came back the same way.
The murder case fell apart, deputy prosecutor Kevin Potts said. Rogers’ claim that he acted in self-defense seemed more likely.
Tucker also was wearing a gun in a small holster clipped to his belt when the argument started in front of his southside home. The gun was still in the holster, but it was lying near his feet when police arrived, which raised questions about whether he was attempting to draw it, Potts said.
But Tucker also was shot three more times in the legs after he turned to run away after being hit by the first and fatal shot.
The prosecutor’s office worked out an agreement with Rogers. Rogers pleaded guilty to a charge of aggravated battery in February and was sentenced to 10 years home detention and one year probation. That sentence is the maximum that was allowable within the agreement, which stipulated Rogers would serve between six and 10 years on home detention, with no prison time, his attorney Brad Banks said.
Rogers never should have been charged with murder to start with, and the error in the death investigation was inexcusable, Banks said.
“If there is anyone that should be looking bad, it’s the coroner’s office. That was a huge mistake that came out in depositions, that came out in the investigation. The unfortunate part for my client is there is a very high likelihood he would not have been charged with murder,” Banks said.
The prosecutor’s office negotiated the plea agreement and agreed to no prison time, because officials weren’t sure they could even convict Rogers at trial for battery, Potts said. A jury might have determined that the additional shots that hit Tucker even after he turned around still could be considered self-defense, Potts said.
Tucker’s family wanted a more severe sentence, but getting the conviction ensured Rogers would face some consequences, Potts said.
Since aggravated battery is considered a violent offense, Rogers will no longer be able to legally possess firearms due to the conviction, Potts said. And, if he violates the requirements of home detention, a judge could choose to send him to prison for the remainder of his term, he said.
“The whole point was that we wanted to hold him accountable for something. I had the opportunity to meet with the victim’s family several times. They were really nice people, and it pained me I couldn’t give them what they wanted. The plea was just, considering the circumstances,” Potts said.
Police were called to Tucker’s home at 1335 E. Edgecombe Ave. about 9:45 p.m. on June 5. Tucker and Rogers, who were neighbors, had been arguing in the street after a dispute earlier in the week about a dog. Rogers had been walking his dog down the street when Tucker’s dog ran through the front yard toward Rogers, according to a police report.
Rogers pulled out a gun and fired at the dog, while Tucker’s girlfriend and her child were outside nearby, the police report said. Police were called about the incident but did not make any arrests.
Tucker installed an invisible fence in his yard and dropped off a sign at Rogers’ house to let him know he had installed the barrier. Later that night, the two men began arguing and were talking about fighting in the street.
Rogers told police he saw Tucker pull out a gun, and he fired in self-defense because he was worried about the safety of his children, the report said. Rogers and his fiancée called 911 after the shooting, Banks said. Witnesses told police they thought Rogers fired more than 10 shots.
Tucker’s black gun was still in a small black holster, but the holster was not on Tucker’s belt when police arrived, Potts said. It’s not clear whether Tucker drew his gun, but since the holster was small and dark-colored, it might have been difficult to see at night if Tucker had unclipped it from his pants, Potts said.
The prosecutor’s office negotiated the battery charge for the additional shots Rogers fired in order to get a conviction, he said.
“This is a conversation we did have several times with the victim’s family. If I was in their position and I was a member of the family, I would be upset, too,” Potts said. “This result will be the best possible result that could have came from this case.”
