MISHAWAKA — An outpouring of grief continued Monday over the death of Mishawaka Police Cpl. Jim Szuba and his K-9 partner Ricky over the weekend. Now, we're learning more about the crash that took their lives, and the history of the driver police say is responsible. Charges Filed Late Monday, a St. Joseph County Superior Court Judge authorized five counts against Shawn Devine, 31, of Mishawaka. They include:
- Count 1: Operating a vehicle with a blood alcohol level greater than .15, causing the death of another person;
- Count 2: Operating a vehicle with a Schedule I controlled substance in the blood, causing the death of another person;
- Count 3: Operating a vehicle with a Schedule II controlled substance in the blood, causing the death of another person;
- Count 4: Resisting law enforcement; and
- Count 5: Habitual substance offender. Medical blood draws showed Devine's blood alcohol content at .239 — nearly three times the legal limit of .08 in Indiana. Initial toxicology tests also indicated the presence of both opiates and cocaine in Devine's blood. Prosecutors wouldn't comment on specific drugs or amounts found. "We're not permitted to talk about the toxicology results," said St. Joseph County Prosecutor Michael Dvorak. More detailed toxicology tests are now underway at Indiana's Department of Toxicology. Results aren't expected back for several weeks. At a news conference late Monday, St. Joseph County prosecutors outlined the charges against Devine, stemming from what a simple traffic stop that turned into a high speed pursuit. A Dangerous Chase Prosecutors say Mishawaka Police Capt. Tim Spencer was "clocking cars" in an unmarked, police issue SUV on Fir Road, just north of McKinley Road just after 9 p.m. Saturday night, when he saw a blue GMC Yukon fly by him. "Officer Spencer clocked this vehicle on his radar at 51 mph in a 30 mph zone," Dvorak said. Dvorak said Spencer pulled out behind the Yukon, flipped on his lights and sirens, and attempted to pull the vehicle over. But, Spencer told police the Yukon "took off" toward a nearby apartment complex. "Capt. Spencer then radioed that the Yukon was trying to 'ditch him' in the apartment complex," the criminal affidavit states. "Officer Szuba heard the radio call as Capt. Spencer followed Mr. Devine into the complex." Witnesses told investigators they saw the lights in Szuba's squad car flip on before he made a U-turn, to face northbound on Byrkit, south of McKinley. That witness told investigators she did not hear Szuba's siren on. Several other witnesses told investigators they saw the Yukon cross the center line, traveling southbound on Fir, before swerving around a car stopped at a red light, traveling into the intersection through that red light, and slamming into Szuba's squad car. Prosecutors said Devine was at the wheel and had to be cut from his vehicle. Szuba and Ricky were both pronounced dead at the scene. Charges were not filed against Devine in connection with Ricky's death. "There is no criminal charge for killing the dog," Dvorak said. "There is statutory authority where the dog, because it was a police officer, there could be a charge. But, that would require a knowing, or intentional death. For example, if an individual walked up to a police dog and took a gun and shot it, or kicked it or abused it. But, not where a dog is killed as a consequence of a DUI." Investigators believe Devine may have allegedly sped off to avoid being pulled over. Berrien County court records may help show why he ran. An Extensive Past According to an investigation by WSBT's partners at The South Bend Tribune, the terms of a probation agreement stemming from a marijuana arrest in Niles last summer prohibited Devine from drinking alcohol. He was also required to be at home between the hours of 9 p.m. and 6p.m. Devine could break his curfew, but his probation officer needed to be advised. It’s unclear if that occurred Saturday night, according to the Tribune. Devine also had to undergo random alcohol and drug testing under the terms of his probation. St. Joseph County Prosecutors said Devine received a sentence of 18 months probation after an undercover drug buy in which officers found 10, one pound bags of marijuana in a car being driven by Devine. Matthew F. Harwood of South Bend was also in the car. Harwood and Devine were charged with drug possession and intent to sell. The probation agreement was reached in October 2009. Violation of that agreement could result in a maximum prison term of 4 years. Records show Devine has extensive brushes with the law in Indiana as well. St. Joseph County police said Devine has been booked into the county jail 11 times since 2000. That includes three arrests for Driving Under the Influence, in 2008, 2006 and 2002. Court records show convictions for DUI in 2006 and 2002. Both convictions were class A misdemeanors. A county police spokesman said Devine has also faced several more arrests for hit and run, criminal mischief and driving without a license over the last 10 years. Never Licensed According to the Tribune's investigation, court documents from Devine's 2006 DUI conviction state he's never held a valid Indiana driver's license. Dispatch data showed repeated suspensions and prior convictions on an expired State ID card only. Court records show St. Joseph County Superior Judge Jerome Frese sentenced Devine to a one-year suspended sentence and one year of probation. Devine also was ordered to serve three days at the county jail, according to the Tribune. That 2006 case was the only one considered a felony on Devine’s driving history. Lingering Questions It's a history that raised eyebrows and anger from some in the community. WSBT viewers e-mailed, called and left dozens of Web site comments about Devine's driving and arrest records Monday. Many wanted to know why that history didn't prevent him from climbing behind the wheel in the first place last Saturday night. Prosecutors wouldn't comment on the answer. "I don't want to go into those comments," said Dvorak, when asked if anything more could, or should have been done to prevent Devine from climbing behind the wheel. "I don't think I can get into that area and be ethically straight doing so." Dvorak also wouldn't comment on whether video of the accident exists from either Szuba or Spencer's dash mounted cameras. He also would not address reports that Devine was seen earlier in the evening at a local bar. "At this point in time, we have an ongoing investigation. And, it would be inappropriate to stray from what we've alleged in these formal charging documents or to attempt to lay out the entire case at this point in time," Dvorak said. But, Dvorak did comment on potential sentencing ranges. All told, if convicted on all five counts against him, Devine could face up to 31 years in prison. "Our responsibilities are to assess the reports that we receive from law enforcement's Fatal Alcohol Crash Team and determine what charges are appropriate. We believe we've done that. We charged under these different alternative theories of prosecution. The sentencing range is up to the court," Dvorak said. That crash team, also known as FACT, is the lead investigating agency in the crash. It is made up of officers from St. Joseph County Police, South Bend Police and Mishawaka Police departments. "We asked all Mishawaka officers on that team to stand down, and replaced them with counterparts from other teams so we would have no bias or issues with the investigation," Dvorak said. And that investigation, Dvorak said, is still ongoing, so additional charges could still come. For officers and a grieving community, the heartache is ongoing too. "We're getting by, and doing the best we can under the circumstances," said Mishawaka Assistant Police Chief Mike Samp. "With the help of our friends and our neighbors, we're going to make it through." South Bend Tribune Staff Writers Carol Draeger Thomas and Alicia Gallegos contributed to this report.