- Associated Press - Tuesday, January 13, 2015

OPELIKA, Ala. (AP) - Grand jurors can consider a murder charge against a man accused of killing an Auburn University football player at a party last month, a judge ruled Tuesday during a hearing that showed the case could come down to who fired first.

Police testimony showed that before dying, Auburn freshman Jakell Mitchell, 18, exchanged multiple shots with Markhale Hart, 22, who is charged in the slaying.

The defense contends Hart fired only to protect himself and asked the court to reduce a murder charge against the Camp Hill man.

But District Judge Steven T. Speakman said a jury must decide whether the shooting was in self-defense and sent the murder case to a Lee County grand jury.

Mitchell, of Opelika, was fatally wounded during a party early on Dec. 14. The shooting occurred at the same apartments where two one-time Auburn players and a third man were shot to death during a party in 2012.

Detective Dustin Holt of the Auburn Police Division said the shooting last month happened after an argument at a party involving Mitchell and Tyrone Rowe, identified by the defense as a cousin of Hart.

Hart, in a statement read during the hearing, told police he tried to get Rowe to leave the party because of the dispute, and a former classmate handed him a gun for protection with the warning that another partygoer planned to shoot him.

Mitchell approached their car and the shooting began, Hart’s statement said. Hart told officers he was moving away from Mitchell and fled after he saw the player fall.

Holt - who repeatedly said he didn’t have copies of any of the 40 or so witness statements with him in court - said he believes Hart began shooting first but didn’t know exactly how many people had corroborated that version of events.

Defense lawyer Jerry Blevins said he believes witness statements will show that Mitchell was the aggressor and opened fire first.

Mitchell was shot “five or six times,” Holt said, but autopsy results aren’t back to show the exact wounds or whether the player had been drinking alcohol or using drugs.

Police found about 10 spent .45-caliber shell casings that Holt said he believed Mitchell fired. Holt said he believed Hart fired about the same number of rounds from a .40-caliber handgun.

“There were multiple shots fired,” he said.

The hearing was held a day after a judge in Tallapoosa County revoked Hart’s probation on a previous burglary conviction.

A Montgomery man, Desmonte Leonard, awaits sentencing later this month in the 2012 triple killing at the same apartments were Mitchell was slain. In that case, one-time Auburn football players Ed Christian and Ladarious Phillips and a third man, DeMario Pitts, were shot to death during an argument at a late-night gathering.

A prosecutor has said he is considering whether officials can declare the apartment complex a public nuisance because of the shootings and other problems in the area.

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