A Cherokee County prosecutor defended his decision Friday to charge an eyewitness to a July 2007 homicide with aiding and abetting another man in the fatal shooting.

Associate District Judge Mark Dobbins had questions about the timing of the filing of the charges and other matters. Dobbins arraigned Daniel Prentice Thornburg Friday morning on a murder charge.

Assistant District Attorney David Pierce formally charged Thornburg, 40, this week with aiding and abetting Robert Lee Smallen with shooting Ronnie Hall, after all three men came to the Horseshoe Bend area from Muskogee more than two years ago. Thornburg surrendered himself at the Cherokee County Courthouse Friday morning.

Angie Jones, a local attorney, appeared with Thornburg and said the charges against her client were filed because the DA’s office “changed its theories” about the shooting.

Pierce said he believes he made the right decision to charge Thornburg with the shooting.

“What else could I have done?,” he asked after the hearing.

“Your honor, if they [DA’s office] had gotten a guilty verdict on Mr. Smallen we wouldn’t be here today,” Jones said.

Smallen’s first trial ended earlier this year in a mistrial. He is scheduled to be tried again later this month. Jones said a majority of jurors in the first trial voted to acquit Smallen, who was identified by Thornburg as Hall’s shooter.

Pierce said prosecutors initially believed Thornburg, but his story about the events of the shooting changes each time he tells it. Dobbins took issue with the filing of the charge at this time, telling Pierce that prosecutors had nearly all of their evidence 2-1/2 years ago.

“He was your star witness,” Dobbins said. “He was walking the street two weeks ago, and now he’s charged with first-degree murder and you want me to hold him without bond.”

“The totality of everything shows he was involved,” Pierce said. “His being there and his inconsistent statements throughout the case show he aided and abetted Smallen.”

“They’re [DA’s office] trying to save face,” Jones told Dobbins. “They didn’t get the verdict they wanted, and so they’re changing their theory. Their case is extremely, extremely weak.”

Pierce argued the jury could not reach a verdict in Smallen’s case because they didn’t believe Thornburg’s account of the events.

He also said Alisha Smallen, the defendant’s daughter and a state witness in the trial, told jurors she heard Thornburg admit shooting Hall after he and Smallen returned to her home.

“It [all] shows collusion,” Pierce said.

Jones also questioned the timing of the charges against Thornburg with Smallen’s retrial coming later this month.

She said it would seem the DA’s office would have filed the charge against her client shortly after the first trial.

“It doesn’t make sense,” she said of how things have transpired.

Pierce said additional DNA testing had to be done on a beer can found near the shooting scene. He said prosecutors now know of a higher motive for Thornburg, who they initially sought to use as a witness.

Jones also said Thornburg came to the DA’s office at their request after the Smallen trial and was threatened and berated before being told to leave. Pierce said that meeting didn’t happen like Thornburg said.

“We were wanting to see what explanation, if any, he had for the inconsistencies in his story,” Pierce said.

Dobbins said the case has him “scratching his head.”

“Your theories existed at the time he [Thornburg] was testifying at the preliminary hearing and trial,” he said.

“This isn’t new evidence.”

Dobbins set a $15,000 bond on Thornburg and set the case on the Dec. 7 felony sounding docket. Jones said it’s unknown at this time whether she’ll represent Thornburg past Friday’s arraignment.