Published: Jun 30, 2011 11:08 PM EDT
Updated: Jun 30, 2011 10:00 PM EDT

FORT MYERS, Fla. - Both sides have rested in the Steak 'n Shake Murder case in Lee County. The fate of Jarrett Mundle will soon be in the hands of the jury.

The defense didn't call a single witness Thursday afternoon, but Mundle's attorney argues the second degree murder charge should be thrown out. He says Mundle never fired a shot and he was cooperating with police. But the judge in this case said that will be up to the jury.

Mundle was arrested on December 20, 2009 after police say he and three other men broke into a home in Cape Coral to steal drugs and money. In a taped statement played in court, Mundle told police he stayed outside. Mundle said the men left with nothing.

They were later pulled over in the Steak 'n Shake restaurant in Cape Coral. The driver got out of the car, but suspect Tyson Richardson jumped into the front seat and drove off. He crashed into a police cruiser and was killed by police.

"I honestly don't know if he was shot before he hit the car or after he hit the car," Mundle told police after being arrested. "I honestly don't know. But I know that the whole time we were driving we were taking shots left and right."

Friday the defense is expected to argue Mundle was surrendering and shouldn't be held accountable for Richardson's death. However, the prosecution will say Mundle was still in the process of committing a crime.