A Macomb County jury saw video on Tuesday of a man delivering a fatal blow to another man just outside a bar in St. Clair Shores.
Andrew Werling, 36, is on trial in Macomb County Circuit Court on manslaughter in 2018 over the death of Eric Hysell, 56, who Werling punched on the side of the head outside the back doors of Kapones Sports Tavern on Harper Avenue. Hysell was placed in a medical coma at Ascension St. John Hospital in Detroit and died on June 2, three days after being shot.
Werling, who claims self-defense and defense of others, punched out Hysell during an altercation between Hysell and Mark Foster that police initially reported as overdue for money.
The video was presented by the prosecution through witness Jesse Smith, a St. Clair Shores police officer, and was replayed several times as two other witnesses testified. The video comes from a camera inside the bar because the outside camera was not working. The incident can be seen through the glass door that Hysell fell into.
The video shows Werling arriving around 6:38 p.m. to find the two fighting, and Hysell punching Foster with his right hand, who falls backwards to the ground. After a few brawls, Werling hits Hysell in the face with his right hand, and Hysell falls back into the back glass door. He slides the glass door down to the floor and immediately tries to get up but falls back and loses consciousness.
During questioning of witnesses, Werling’s attorney, Craig Tank, argued that Hysell’s arm was moving towards Werling when Werling attempted to pull Hysell away from Foster.
His claim was substantiated by witness Jeffrey Callionte, although he said Hysell pushed or “came to” Werling. Callionte was walking from the parking lot to the gate and is the only eyewitness other than Foster to witness the hit. Foster has not yet testified.
Callionte said in his testimony and statement to police that Werling “got in between” and that Werling “moved” Hysell “back” from Foster, then Hysell “came to” Werling.
“Andrew grabbed him (Hysell) to get him away from Mark, and the guy (Hysell) pushed him away,” Callionte said. “Andrew grabbed him first. And he (Hysell) replied to Andrew. Andrew responded with a punch.
But Macomb’s Deputy District Attorney Rebecca Kelley suggested during questioning Tank that Collionte did not have a good view of Hysell because Werling’s back was turned towards Collionte and blocked his view of most of Hysell. . She proposed that the video show Hysell stepping back and Werling stepping forward for a split second before hitting Hysell.
Kelley said: “Do you agree that at that point Mr. Hysell took a step back? … Mr. Werling takes a step forward. Would you accept? “
Collionte, who said he had never seen the video before Tuesday, was not allowed to respond by Judge Julie Gatti, who accepted Tank’s objection that the question was “leading.”
He admitted that he hadn’t seen Hysell’s arm stretch out towards Werling as Tank had suggested because of Werling blocking his view.
He commented further under questioning Tank.
“I see him rushing towards him,” Collionte said, although it was not clear who he was referring to. “From the back, it looked like there was fighting. From my perspective, I don’t know how close they were behind him. Andy was walking towards him.
“All I saw was Andy walking towards him.”
Callionte said he was a 10 to 15 second walk from the scene when he first saw her and came to the door to find Foster sitting on the floor looking “dazed,” but got up after Callionte asked him if he was OK.
The video shows Hysell and Foster dressed in shorts and polo shirts. Foster appears to be the aggressor during the initial stages as the two jostle each other.
Hysell’s blood alcohol content was 0.24%, three times the legal driving limit.
Callionte said he had never seen Hysell before, but knew Foster as a “regular” at the bar with his wife. He said he knew Werling, who worked as a handyman for the mall where the Kapones are located.
Callionte said he had not had personal contact with Werling since the summer of 2020, but Werling recently sent him a Facebook friend request and a message asking if Callionte “knew anything” about the ‘charge. Callionte said he did not respond and recorded a screenshot of the message.
Kapones co-owner Khatina Breiss also testified, who was in an indoor office when the incident occurred and was told by an employee “there was a problem” outside.
Breiss said she walked to the back door and found Hysell on the ground and a small crowd gathering. She asked people not to touch the victim, then called 911. Several people called 911.
“Everyone was in shock, like what the F,” she said.
She said she had never seen Hysell before and that she also knew Foster as a “regular” bar.
She said she and police watched the video and then took police officers to Werling, whom she knew from working for the mall.
Foster was found guilty in a plea of assault and battery by the 40th District Court.
The trial began last Friday before judge Julie Gatti. It was to be held Wednesday and Thursday, then continue next week. The court is closed Monday for Columbus Day.
The incident was the second death to occur at the bar in two years. In December 2019, Miller Hatum Akrawi fatally struck Shawn Kubic, 47, of St. Clair Shores, inside Kapones. Akrawi, now 35, pleaded guilty to manslaughter and was sentenced to eight to 15 years in prison last February by Macomb circuit judge Michael Servitto.