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Mistrial declared in case of Henrico man accused of shooting neighbor

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UPDATE, 11:00 p.m. After seven and a half hours of deliberation the jury of seven women and five men came back as a hung jury. 

They were unable to answer if the shooting that killed Donald Simms was self-defense, second degree murder or voluntary manslaughter. 

A judge asked if the jury could reach an agreement tomorrow and they said no, so it has been declared a mistrial. Click video for 11 p.m. courtroom report. 

HENRICO COUNTY, Va. (WTVR) -- Jury deliberations are underway in the trial of a man accused of shooting and killing another man during a fight over dirt bike noise.

On the stand Wednesday, Michael Mabry told the jury he acted in self-defense when he shot and killed 62-year-old Donald Simms Sr. last September.

"Did Simms say to you, 'I'm going to kill you, n-word?' Did you believe him?" David Baugh, Mabry's attorney, asked in court.

Mabry replied, "Yes."

However, Prosecutors argued that Mabry was not afraid of Simms, despite what he told police. Prosecutors admitted Simms had been drinking heavily and was unarmed when he was shot and killed.

Additionally, prosecutors pointed out that Mabry never called 911, but left Simms to die.

The confrontation started after Michael Mabry and Donald Simms got into an argument over noise Mabry and his younger brother made while dirt biking on a wooded trail near Simm's Kenwood Avenue home in Henrico County's Lakeside neighborhood.

A neighbor said the two brother's left but returned a short time later in their cars and the argument escalated into a deadly situation.

Late Wednesday evening, the jury stopped to ask a question, then took a 40 minute recess before continuing to deliberate.

If jurors find Mabry guilty of second degree murder, he faces up to 40 years in prison. If convicted of voluntary manslaughter he could spend up to 10 years behind bars. Jurors could also decide that he acted in self defense.

Stay with CBS 6 News and WTVR.com for updates on this developing story.