No prison, maybe no jail for Minn. homeowner who fatally shot fleeing teen intruder

Prosecutors have agreed to a plea deal for a southern Minnesota homeowner who shot and killed a fleeing intruder that calls for no imprisonment — and possibly no jail time either.

"No one is being held accountable for my son being shot and killed," Tracy McCabe said in Watonwan County District Court as a judge accepted the agreement Tuesday.

David Pettersen shot Nicolas Embertson, 19, of Madelia, as dawn was breaking on Jan. 28. as Embertson and two friends fled in a vehicle after a foiled home invasion.

Pettersen, 65, a hog farmer who lives a few miles south of Madelia, had been charged with second-degree manslaughter and intentional discharge of a firearm, both felonies. The plea deal means dismissal of the manslaughter count, which could have led to several years in prison upon conviction.

He pleaded guilty to the lesser count, and defense attorney Jim Fleming said he will argue for no jail time for his client. Judge Gregory J. Anderson can impose up to one year in jail to go along with probation lasting no more than two years.

"This was a self-defense incident," Fleming said Thursday, pointing to an expert he hired to analyze the confrontation Pettersen had outside his home with Embertson and two 18-year-olds. "We have a really solid self-defense case here. ... He did not intend for that to happen."

Despite such confidence, Fleming said he didn't want to risk a trial, saying, "If we get the right jury, we're going to walk out of this with an acquittal. We get the wrong jury and we're not."

County Attorney Stephen Lindee said it was "so difficult to come to a resolution that ... is just for everybody."

Lindee said that while Embertson was "out there to burglarize the house and he's engaged in criminal behavior, he didn't deserve to die."

At the same time, Lindee added, "the defendant has been totally law-abiding his entire life. ... He's got all kinds of adrenaline and fear [and] grogginess from just waking up."

Lindee called Pettersen's actions "wrong and stupid, and he shouldn't have done it. ... He's going to have a felony [on his record], which is a serious thing."

Come sentencing, scheduled for July 11, Fleming said he will argue for no jail time for his client and to have the count reduced to a misdemeanor upon Pettersen successfully completing probation. A probation violation could mean a trip to prison.

Lindee said, "I obviously will be arguing for jail time" and to have the count remain on Pettersen's record as a felony.

In her statement to the court, McCabe said Pettersen "took the law into his own hands and instead of calling police, he grabbed a gun. He shot and killed my son that was no threat to him."

She also pointed out that Pettersen "could not obey that law and properly discharge a firearm. This instinct, or fear or cowardice, is all the more reason he should not own a gun and should be held accountable for the word on my son's death certificate: 'homicide.' "

According to the criminal complaint, Embertson and Cornelius Ayers, of Madelia, boosted Kyle Nason, of Sleepy Eye, onto a deck in a scheme to scope out the home before coming back to burglarize it. Pettersen confronted them after being roused out of bed when he heard someone trying to pry open the door. Nason jumped the 10 feet down off the deck and broke an ankle.

Nason told police that once they got to their car and started driving away, he heard two shots and Embertson say, "I think I've been hit."

Pettersen told authorities he left his house through the garage with a handgun and saw the car pass within 10 feet of him. He fired two or three shots, contending that he was aiming for the drive's side front tire. He went back and called 911.

In February, Ayers and Nason were charged with first-degree burglary and conspiracy to commit burglary for their roles in the intrusion. Ayers has pleaded guilty, while Nason's case remains pending.

Lindee, the county attorney, said he sympathizes with Embertson's family.

"I know they are heartbroken," he said. At the same time, Lindee added, "no matter the resolution we come up with, Nick is not going to come back."

Paul Walsh • 612-673-4482