Murder scene photos, video allowed in Smith trial
Kevin Jenkins , kevin@thespectrum.comPublished 6:08 p.m. MT Jan. 6, 2017 | Updated 6:17 p.m. MT Jan. 6, 2017
Prosecutors will be able to show a jury disturbing photos of a St. George murder scene and injuries inflicted on the victim, a 5th District Court judge ruled Friday.
Defense attorney Gary Pendleton, representing Bloomington Hills resident Brandon Perry Smith, 35, in the six years of proceedings since Smith was accused of brutally killing 20-year-old Jerrica Christensen of Leeds at a city-center townhome, had opposed allowing jurors to see the crime scene photos when the case goes to trial later this month.
“We’re going to ask this jury to decide the case based upon what the facts are, and the facts are going to be clear,” Pendleton told Judge G. Michael Westfall, arguing that the horror of the images would unfairly prejudice the people called on to deliver a verdict.
“The facts as far as what this poor girl suffered are going to be clear, but as soon as you show those photographs nothing else will matter,” Pendleton said. “We need … for the jury to be able to calmly and coolly deliberate without prejudice or passion and decide it based upon the facts, not the gore that is presented by these photographs.”
Westfall obtained a concession from Washington County Attorney Brock Belnap that pictures of Christensen’s wounds could be presented in black and white, although Belnap argued that other courts have ruled there is little difference between black and white versus color images in terms of their effect on a jury.
Belnap said that the prosecution’s primary concern, instead, has been to ensure the images are not exaggerated or sensationalized, and said the photos of the wounds “are clean” for their intended use in eliciting testimony from Utah Chief Medical Examiner Dr. Todd Grey about the nature of the injuries that preceded Christensen’s death.
St. George Police investigators discuss a double murder as lines of caution tape criss-cross 600 South near the Main Street intersection on Dec. 11, 2010 in St. George. Paul Clifford Ashton was convicted in 2013 for killing Brandie Sue Dawn Jerden at his residence. Ashton's friend, Brandon Perry Smith of Bloomington Hills, is accused of killing Jerrica Christensen of Leeds following Jerden's death. (Photo: Submitted)
“There are many, many, many photos that the state did not present to the court for consideration which would probably fall into the category of horrific and maybe even exploitative, but these aren’t,” Belnap said.
“There is a difference between having a doctor describe, ‘There was a laceration,’ and having a jury see what the laceration actually meant. And that is something that is relevant to the question of intent and the element of proof that we have to show,” he said. “It is not unfair prejudice. It is evidence against him, but it is not unfair and it will not mislead the jury.”
While Westfall ruled in Belnap’s favor, he did order that five external wound photos be presented in black and white in the hope that any potential loss of evidentiary detail might be counterbalanced by a potential lack of undue prejudice against the defendant.
Three other photos apparently related to minute injuries to Christensen’s eyes and mouth evidencing that she was deprived of oxygen will be presented in color, and Westfall said he will allow the defense to object to a small snippet of the crime scene video in which the operator sweeps from viewing a second murder victim to an area of pooled blood, but Pendleton said he has purposefully not objected to it thus far.
“I haven’t specifically raised that (issue) because … Brandie Jerden, and how she appears there, ... part of that depicts the horror that my client was exposed to,” Pendleton said. “I don’t want to see it come into evidence at all, but if it does come into evidence then it needs to show the horror that he was exposed to, too.”
Pendleton has previously signaled that “the crux of our defense” is that Smith had initially resisted visiting his friend, Paul Clifford Ashton, after Ashton asked Smith to supply him with a gun because an anonymous threat had made him afraid, and that once Smith yielded and delivered the gun he was emotionally overwhelmed and manipulated by the deadly events that unfolded afterward.
Ashton was convicted in 2013 of murdering Brandie Sue Dawn Jerden and of shooting St. George resident James Fiske, who was helping Jerden move out of Ashton’s home. Fiske survived and fled the home while Ashton allegedly convinced Smith to kill Christensen, who was in a rear room also helping with the move.
Friday’s hearing also allowed the attorneys to present their respective arguments for and against allowing two defense witnesses to testify at trial.
Paul Clifford Ashton is led into the courtroom for his sentencing hearing Sept. 4, 2013, in 5th District Court in St. George. Ashton was sentenced to life without parole for Brandie Jerden's December 2010 murder and will serve the sentence concurrently with a federal sentence of life in prison for the murder of Bradley Eitner, which he committed in October of 2010. (Photo: The Spectrum & Daily News file photo)
Much of the debate centers around Utah psychologist Vickie Gregory, whom Pendleton seeks to introduce as a medical expert who can talk about Smith’s “odd behavior” in his defense against the prosecution’s claim that the murder evidence showed Smith acted in a “depraved” manner during the incident.
Belnap’s objections largely centered around the fact that Pendleton has not allowed a medical expert selected by the prosecution to also interview Smith, and his fears that Gregory might in effect try to testify about the murder scene on Smith’s behalf without Smith taking the witness stand for cross-examination.
Pendleton agreed that Gregory would not be a conduit for Smith in that manner, but said that she could provide a historical account of behaviors that would show Smith “is not your typical defendant.”
Belnap argued that evidence about the range of Smith’s intentions is not relevant to the charges against him. Westfall said he will consider the arguments and issue a written ruling on the matter.
The trial is scheduled to begin Jan. 30 and last for 10 days.
Follow reporter Kevin Jenkins on Twitter, @SpectrumJenkins. Contact him at 435-674-6253.
Trial begins for man accused in St. George murder
The Associated Press
First Published Feb 01 2017 03:03PM • Last Updated Feb 02 2017 05:23 pm
Defense Attorney Gary Pendleton, murder suspect Brandon Smith and Private Investigator Todd Gubler during a hearing in Smith's aggravated murder case in 5th District Court in St. George, Utah, on Tuesday, Feb. 19, 2013.
Testimony has begun in the trial of a southern Utah man accused of killing a 20-year-old woman in an attack that also left another woman dead.
The Spectrum newspaper of St. George reports that a man who survived a gunshot wound during the violence that night testified Tuesday about finding the beaten and stabbed body of Jerrica Christensen at a St. George townhome in 2010.
Brandon Perry Smith is charged with aggravated murder and aggravated assault. Prosecutors had been seeking the death penalty, but dropped it a year ago so the case could move more quickly.
Smith's lawyers say their now 35-year-old client was manipulated by a friend, Paul Clifford Ashton, who was later convicted in the death of the second woman, 27-year-old Brandie Sue Dawn Jerden.
Ashton, 36, was sentenced in 2013 to life without the possibility of parole for killing Jerden.
Disputed evidence 'finally' offered to murder case jury
Jurors “finally” had an opportunity to hear evidence Wednesday that has been at the center of disputes since Friday over whether it is properly admissible by the defense in a Bloomington Hills resident’s murder trial.
The five men and four women comprising the jury were dismissed early Monday, spent barely half an hour hearing evidence Tuesday, and were given the morning off Wednesday amid arguments between defense and prosecution that largely focused on the threats posed by a codefendant of Brandon Perry Smith.
Smith, 35, is accused of killing 20-year-old Jerrica Christensen during a December 2010 night of violence at the St. George home of Paul Clifford Ashton. Ashton will turn 38 this month at the Utah State Prison, where he has been housed since his conviction on aggravated murder and attempted murder charges involving the shootings of two other people the night Christensen died, as well as the unrelated murder of a homeless man staying at his home a few weeks earlier.
Day 1
Ashton also was initially charged with an aggravated murder count related to Christensen’s death, but that charge was later dismissed by state prosecutors.
One juror was removed Monday because of illness. One additional juror will be declared an alternate and sent home when deliberations on a verdict begin, which is expected to happen Thursday. The defense rested its case late Wednesday afternoon, but the prosecution may present some brief rebuttal testimony Thursday morning.
The debated evidence presented to jurors Wednesday included heavily redacted copies of “kite” communications Ashton sent to another inmate six months after Christensen’s death, as well as an 87-page transcript of the inmate’s deposition testimony about the kites.
The defense has been unable to locate the former inmate, so defense team members J.D. Lauritzen and Todd Gabler read the unredacted portions of the 2012 deposition in a role-playing presentation for the jury in which Gabler represented the inmate and Lauritzen represented the attorneys questioning him about his association with Ashton.
Day 2
The evidence also included statements Smith made to a police officer while he was being taken to the jail after his arrest.
Smith’s statements to St. George Police Lt. Thad Feltner six years ago, when Feltner was a sergeant, were introduced in court for the first time Friday outside the jury’s presence as defense attorneys Gary Pendleton and Mary Corporon sought to show that Smith may have been frightened of Ashton when Smith allegedly killed Christensen, as he has confessed to doing, at Ashton’s insistence.
Washington County Attorney Brock Belnap, left, and Deputy County Attorney Ryan Shaum listen to arguments over redacted documents the prosecution opposed as inadmissible evidence in the aggravated murder trial of Bloomington Hills resident Brandon Perry Smith on Wednesday. (Photo: Kevin Jenkins / The Spectrum & Daily News)
Washington County Attorney Brock Belnap objected to presenting Feltner’s report of his conversation with Smith to the jury, arguing the report constituted hearsay because of Feltner’s limited memory of the conversation, because the questioning took place hours after Smith’s official interview at the police station, and because Feltner wasn’t the officer involved in interviewing the suspect.
But on Tuesday, Corporon noted findings since then that Feltner was one of the officers who arrested Smith at a Santa Clara location and who drove him to the police station for questioning; that Feltner took Smith into the “interrogation” room, observed portions of his questioning and was also one of the officers who subsequently questioned Smith about evidence Smith had volunteered; and that Feltner took Smith to the jail, questioning him about his state of mind, less than an hour after the last time Smith was asked about the evidence while at the station.
Belnap told Judge G. Michael Westfall he was withdrawing his objection Wednesday morning, and Feltner testified briefly Wednesday afternoon about his memory of the day’s events.
Day 3
As he had done outside the jury’s presence Friday, Feltner read from his 2010 report, in which he stated he asked Smith what he felt as he was committing the act of murder.
“I asked him if he had a sense of euphoria, excitement, Adrenalin, or if he felt scared and sad or what,” Feltner read.
Feltner’s report states Smith answered that he didn’t feel anything but he felt he needed to “complete the act” because he didn’t know what Ashton would do to him otherwise, and when Feltner asked for clarification Smith said, “He just shot two people, so I thought maybe he’d shoot me.”
Pendleton and Corporon battled to have the evidence admitted as a statement of Smith’s fear that otherwise would only be available if Smith took the witness stand to answer questions for himself – something the defense chose to avoid.
Defense attorney Gary Pendleton, right, asks Judge G. Michael Westfall to declare a mistrial Wednesday in the aggravated murder trial of Bloomington Hills resident Brandon Smith. Westfall denied the motion. (Photo: Kevin Jenkins / The Spectrum & Daily News)
Feltner’s testimony didn’t resolve the dispute, however. At the end of the day, Pendleton noted the evidence had "finally" been allowed but asked the court to declare a mistrial, arguing that the delay in presenting the evidence from Feltner’s report constituted a violation of Smith’s rights and may have prejudiced the jury.
Pendleton’s argument is that jurors may have gained an incorrect impression of the facts from hearing only one side of the issue during the prosecution’s presentation of its case, and that during the continuing presentation of evidence that included “gory” photos from the crime scene and autopsy, the jury’s initial one-sided impression may have had time to “settle” into a fixed permanence.[I sent those to paragraphs to KJane. It was she expressed last weekend.vj]
Day 4
Feltner first took the stand Feb. 1 during the second day of testimony and briefly discussed Smith’s arrest, but when Pendleton attempted to question him about Smith’s jail transport statements he was barred by a prosecution objection to the scope of the questions.
Westfall ruled the defense could recall Feltner at a later time when the defense was attempting to establish its side of the argument, but when Feltner returned Friday the objections raised by Belnap again parried the testimony until the resolution of the matter Wednesday.
“Now, we have before the jury on the last day of evidence in this trial, or the second to the last day depending on the state’s rebuttal, … the statement coming in for the first time that the defendant (said), ‘I didn’t feel anything. It didn’t feel good to do it and it didn’t feel good to talk about it,’” Pendleton said.
“Now we’ve got nobody who can offer any explanation of that statement,” Pendleton said, adding that there was an unlikely possibility of getting a defense forensic neuro-psychologist witness to return to add to Monday’s testimony about her county jail interview with Smith, or to have Smith waive his 5th Amendment right against potentially testifying against himself to expound on his reported statements to Feltner.
Day 5
Westfall ruled against the mistrial request, stating that the defense sabotaged itself by not raising an argument of legal principal regarding the “completeness” of the evidence last week, although Westfall himself discussed his concerns about whether completeness should require admission of the evidence while the issue was being debated Friday.
During presentation Wednesday of the kites confiscated at the jail, Pendleton stated he had ultimately decided not to admit two of the three heavily redacted communications because they failed to provide information that would benefit his arguments Ashton was continuing to threaten Smith’s life.
That information has been barred as irrelevant because there has been no evidence from anyone that Smith knew he was being threatened or had a potential reason to fear Ashton’s claim he would pay $10,000 to anyone who could kill Smith and other potential witnesses to stop them from testifying, but the defense reversed its efforts to satisfy the court’s redaction order and repeated its requests to allow the full content of Ashton’s letters.
Day 6
“To be clear, your honor, it is our theory of the case that Mr. Ashton is a violent person, that he has a violent character or nature, that he acts violently, more or less constantly and frequently; (and) that the defendant was the subject or object of his threats of violence at a point in time that is very relevant to these proceedings,” Corporon told Westfall. “This evidence tends to make it more likely than not that Brandon Smith was threatened or felt threatened on the night of Dec. 10 into Dec. 11, 2010.”
Jurors did hear Smith last week tell an investigator in his videotaped interrogation that he wasn’t afraid for himself when he allegedly pulled a gun and pointed it at one of the people Ashton shot. Smith, who has also been characterized during the trial as a church-going returned missionary, later gave his gun to Ashton while trying to knock Christensen out before slashing her throat as Ashton urged him to finish up because they had to flee the scene, he told the officer.
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And here's Mom!
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And here's Mom!
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