The man charged with killing a stranger in a fight outside an Abington coffee shop is speaking out less than a week before his trial begins, saying the public hasn’t heard the whole story about what happened that summer day last year.
Michael McGunigle threw the one and only punch in the July 2009 altercation. But that punch caused Brian Cherry, a former Marine, husband and father, to fall, seriously injure his head, and die soon after.
In an exclusive interview with FOX Undercover, McGunigle insists he's not a violent person and that he only acted in self-defense when he hit the 48-year-old Cherry.
“Of course I'm sorry it happened. It kills me everyday I think about it. Every hour. Everyday,” McGunigle said.
“Do you regret throwing that punch?” asked FOX Undercover reporter Mike Beaudet.
“That's a hard question. I really felt threatened. And I-- what was I gonna do -- let him hit me?” McGunigle said.
McGunigle said he acted in self-defense. But witnesses quoted in an application for an arrest warrant tell a different story, identifying McGunigle “…as the aggressor in the altercation."
Everyone, even McGunigle, agrees that his barking dog was at the center of the deadly dispute. The dog was harnessed in the back of McGunigle’s SUV, barking out the open back, when McGunigle and a woman began arguing about the dog.
Cherry was sitting outside Marylous Coffee in Abington while McGunigle was leaving with his daughter.
“My daughter was behind me, so I said, ‘Mind your own business you fat bitch’….And just before I shut the back I hear a voice out back saying, ‘Hey, you got a big mouth with the women,’” McGunigle said.
McGunigle says he told his daughter to get in the SUV.
“I hobbled over to him real fast,” McGunigle said. “I don't run because of my leg. I hobbled. We got up close. And then when I realized how big he was I went, ‘Oh (expletive).’”
“And then he says, ‘I'm gonna push your face right through your f’ing ass.’ I'm like, whoa, whoa. I was started getting shake-- I'm nervous now. I'm trying to, I'm saying this guy is taking it -- he wants to kick my ass,” McGunigle said.
Witnesses told police that McGunigle chest-bumped Cherry, but McGunigle denies it.
“When I stood up a little bit to back up our chests touched. And he goes, ‘Oh, you wanna bump chests?’ So he gave me a good chest-bump like football players do. And then a two-handed shove,” he said.
“And then all of a sudden he picked his hands up… and he made a step like he was gonna throw a right,” McGunigle said. “So as soon as he made the move, I just went, scared (expletive) reaction, self-defense, and I caught him in the cheek.”
McGunigle's attorney tried to get the case thrown out, saying the Commonwealth knowingly withheld evidence from the grand jury.
According to court records, a witness who did not initially testify before the grand jury told investigators that "Cherry was the first to make physical contact with the defendant by ‘chest bumping’ him," and "that it seemed that Cherry had started to attack McGunigle before McGunigle allegedly threw the single punch.”
McGunigle said, “I don't think it was an accident that they did that. The DA says he didn't know nothing about her. He's blaming Abington (police).”
Abington police tell FOX Undercover they forwarded everything to the Plymouth County District Attorney’s office, which declined to comment. Ultimately, the case was dropped and refiled after that witness did testify before a second grand jury. Only this time, the prosecution also charged McGunigle with assault and battery.
“The prosecution has to know they have a weakness in their case,” said Bob George, a long-time criminal defense attorney who is not part of this trial.
“I believe they added the second charge as a safety net. Something for the jury to compromise on if they don't believe the manslaughter indictment,” George said.
George says the case will come down to the jury figuring out who was the aggressor.
“The first punch being thrown, if the aggressor is Cherry, is self-defense. But if the first punch thrown is McGunigle thinking that Cherry's going to be an aggressor, he's got a problem,” he said.
“You threw the punch. A man is dead. Why shouldn't you be convicted of manslaughter?” FOX Undercover’s Beaudet asked.
“Because it was self-defense. He threatened me. I never threatened him,” McGunigle replied.
“You're about to go on trial. Are you nervous?” FOX Undercover’s Beaudet asked.
“Of course I am. Of course I am. I'd be a liar if I said I wasn't,” McGunigle replied.
“What do you worry about?” Beaudet asked.
“Going to jail for a long time. Missing my daughter growing up. Where do you want me to start?” McGunigle said.
McGunigle is facing up to 20 years in prison if convicted. His trial is set to start in Brockton Superior Court next week.
His defense attorney, Wayne Murphy, says he's confident the jury will see McGunigle acted in self-defense and find his client not guilty.
FOX Undercover reached out to many witnesses in the case and to Brian Cherry's widow, but all declined to talk about what happened, saying they don't want to interfere with the trial.