Craig Tomko was sentenced to five years in prison after being found guilty of involuntary manslaughter. (Photo courtesy Fulton County Sheriff’s Office)
Fulton D.A. decries lenient sentence in Midtown killing Judge tossed out felony murder, assault verdicts
Fulton County District Attorney Paul Howard plans to file a motion next week asking for a judge’s verdict to be vacated in the case of a Midtown man accused of killing his gay neighbor.
On March 14, a Fulton County jury found Craig Tomko guilty of felony murder, aggravated assault, involuntary manslaughter and simple battery in the death of Meredith “Mac” McNair at the Dakota condominium complex in July 2006.
The murder and involuntary manslaughter verdicts are considered legally “inconsistent,” said Howard, who added that a judge will typically send jurors back into deliberations to reconcile their verdicts. Instead, Fulton Superior Court Judge Jerry Baxter threw out the convictions on felony murder and aggravated assault and sentenced Tomko only on involuntary manslaughter.
The felony murder conviction would have carried a mandatory life sentence. Baxter sentenced Tomko to five years in prison and five years probation on the involuntary manslaughter charge.
“I’ve never had a judge do such a thing,” Howard said after the trial. “A judge will send back the verdict to the jury. That’s what should have happened.”
Nick McNair, the victim’s brother, said he was disappointed with the court’s action.
“We heard the judge say at the beginning of the trial, when the jury was out … that he thought this was an involuntary manslaughter trial,” he said. “The justice we got today I believe might be somewhat inadequate for the crime that was committed, and which the jury said was committed.”
During sentencing, Baxter said both the prosecution and defense had spun the case to make it impossible to determine what had happened.
“I’ve been in the courthouse 30-something years, and this is one of my harder days,” Baxter said before sentencing Tomko.
Tomko’s defense attorney, Drew Findling, said he was pleased with the sentence. Findling said he talked with Tomko after the sentencing and Tomko said he’s “willing to accept the verdict and the court’s judgment.”
All the jurors declined comment on the verdict, but one said in passing this was “the longest, most stressful week.”
Howard said the jurors were outraged with Baxter’s decision because they thought the lesser charge of involuntary manslaughter merged with the more serious charge of murder.
“We might have to have another trial,” Howard said.
Tomko’s dog, a small Labrador named Gracie, was the source of a years-long feud between the neighbors, and sparked the fight that led to McNair’s death. Tomko’s defense attorneys offered a self-defense argument throughout the weeklong trial.
Atlanta Police found McNair’s body floating face down in the pool at the Dakota during the early hours of July 4, 2006. Drops of Tomko’s blood and his electronic access card to the pool area placed him at the scene of McNair’s death, and investigators learned that a protracted feud between the two men over Tomko’s dog culminated in a fight on the pool deck.
The jury was forced to decide whether Tomko’s dislike of McNair drove him to kill the gay handyman, or whether Tomko, 39, was unfairly charged with murder after getting into a fight with a rival neighbor who had a bad heart. McNair, 54, officially died of cardiac arrest, but the prosecuting attorney claimed that Tomko head-butting McNair and holding him underwater triggered the heart attack.
“His actions directly caused the victim’s heart attack,” said Pete Johnson, Fulton County assistant district attorney. “[Tomko] was holding him under water until he was dead … that is not involuntary manslaughter or [self defense].”
Findling, the defense attorney, argued throughout the trial that Tomko was defending himself and his dog in a fight against McNair, who had a history of abrasive confrontations with other dog owners at the Dakota.
Findling also characterized the prosecution’s case as flimsy — lasting only two days, and consisting of a single witness who testified that Tomko intended to kill McNair, along with testimony from several Dakota neighbors who confirmed that Gracie was an ill-trained dog and the source of enmity between Tomko and McNair.
“We’re sitting here in a murder case, this man’s [Tomko’s] life is at stake, and all we’re hearing about is people say the dog mounted them [in the hallway],” Findling told the jury during closing arguments.
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