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Victim identified man unrelated to case, new-trial motion shows
QUESTIONS: SILK PLANT FOREST BEATING CASE
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Published: May 2, 2008
The motion for a new trial for Kalvin Michael Smith reveals for the first time that the victim once indicated that a man who had no connection to the case was her attacker.
The motion, filed Tuesday in Forsyth Superior Court, asks a judge for a hearing to determine whether Smith should get a new trial. Smith's supporters believe that he was wrongfully convicted in 1997 in the brutal beating of Jill Marker in 1995 inside the Silk Plant Forest, a store that was on Silas Creek Parkway.
Marker, who worked at the store, was beaten on the head 20 times. She suffered skull fractures, permanent brain damage and later went blind. She was pregnant at the time, and gave birth while in a coma.
The motion said that during a videotaped interview on Oct. 31, 1996 , Marker appeared to identify a man with no connection to the case as her attacker.
The man was a "filler" in a photo lineup of six black men. A filler is someone who is not a suspect, but whose photo is included because the filler fits the general description of a suspect who was in the photo lineup. There were six photos shown, five of which were fillers.
The suspect was one of several men whom detectives considered in the case, but then later discounted.
The motion for a new trial claims that the trial judge should have barred Marker's testimony and that Smith's attorney, William Speaks, should have done more to try to keep the testimony out of the trial.
Marker's ability to recall the attack and identify her attacker has been a persistent question in the case.
An investigation of the case by the Winston-Salem Journal in 2004 also raised questions about the actions of police and prosecutors. The series quoted doctors as saying that it would have been highly unlikely, given the severity of her head injury, for Marker to identify Smith years later at trial.
The lead police detective on the case, Don Williams, failed to document in writing any lineups shown to Marker during the videotaped interview. Those lineups included one in which Marker appeared to choose the filler, another in which Marker failed to identify Smith, and a third in which Marker indicates that another suspect, Kenneth Lamoureux, had been in the store.
Speaks has signed an affidavit saying that there appear to be two parts to the videotaped interview he saw. The first part has Williams asking Marker questions about her memory of the attack. Speaks said he was never shown the second part, in which Williams showed the photo lineups.
The transcript of the videotape ends after the first part of the interview. Prosecutor Mary Jean Behan filed a notice in court saying that the transcript summarized the video. The photo lineup in question was not the only one that police showed to Marker. Williams went back to Marker just before the trial and showed her another photo lineup. He made a detailed written documentation of that lineup, in which he said she identified Smith as her attacker, but Williams did not videotape it.
Williams is now retired, and since 2004 he has declined to discuss the case.
The motion for a new trial also points to Lamoureux as a far more likely suspect than Smith, citing evidence that includes two eyewitnesses who saw Lamoureux in the store an hour before the attack and indications that Lamoureux knew Marker and had visited her at the store.
Several people who had been in the shopping center on the evening of the attack had seen someone who fit the description of Lamoureux, according to the motion.
Police lost interest in Lamoureux when he moved to Charlotte, and they dropped him altogether when Marker indicated that her attacker was a black man.
In a brief phone interview Wednesday, Lamoureux, who now lives in Texas, said he had no comment about the motion or the evidence it cites in relation to him.
Asked if anyone had interviewed him about the case recently, Lamoureux replied that "this is the first time I've heard anything about it."
"That's pretty much all I'm going to say, right at this time."
The Innocence Project atDuke University Law School has spent several years investigating Smith's case and found much of the new evidence cited in the motion, which a local attorney, David Pishko, filed on Smith's behalf.
Last year, the city decided to investigate whether mistakes were made in the Silk Plant Forest case. But the internal police-department review was withdrawn after City Manager Lee Garrity learned from a Journal reporter that the officer who led the review had been a supervisor to Williams.
The city then decided to form a citizens panel to look at the case. The panel has just started its work.
The motion for a new trial for Smith has yet to be assigned to a judge, said Phillip Toelkes, the trial-court administrator.
Toelkes said that Judson D. DeRamus Jr., the senior resident Superior Court judge, was reviewing the motion and would then assign it to a judge.
That could happen by the end of the week or early next week, Toelkes said.
The motion includes affidavits from two of three key witnesses that prosecutors used to convict Smith.
Eugene Littlejohn and Valerie Williams both say in their affidavits that they were coerced by police into making statements that put Smith at the store. They now recant their statements, according to the affidavits.
Littlejohn testified at Smith's trial in 1997 that he was with Smith the night of the beating and saw him go into the store and grab Marker by the arm.
When jurors were deliberating, they sent the judge a note asking to review Littlejohn's testimony, which they characterized as "critical." Less than an hour after reviewing Littlejohn's testimony, they voted to convict.
"Each time I gave a statement, the detectives told me some of the stuff to say," Littlejohn said in his affidavit. "I told the detectives that Michael was involved in the assault on Jill Marker to stop them from harassing me and because they threatened to charge me with the crime and put me in prison."
District Attorney Tom Keith's assistants had called witnesses against Smith who had given inconsistent versions of their stories, but they ignored a witness, Frederick Reyes, whose testimony contradicted the state's witnesses.
The motion for a new trial blames Speaks, Smith's attorney, for not using Reyes' statement, or finding him to testify. That allegation is one of four claims that Speaks was an ineffective attorney for Smith.
Speaks said yesterday that he couldn't find Reyes before trial and he likely would not have used Reyes' testimony anyway.
"It was a tactical decision," he said. "I think I gave him a good defense. Was it perfect? No."
Speaks didn't have Smith testify because it would allow prosecutors to question him about his statement to police, in which he admitted to being at the Silk Plant Forest but said that another man attacked Marker.
Prosecutors had not used the statement as part of their case.
Smith had recanted the statement right after he gave it. He said he signed the statement because police told him that they would let him go if he did. Smith said that police told him that if he didn't sign it, they would arrest Williams, a girlfriend of Smith's that detectives had brought to the police station at the same time for an interview.
Some jurors interviewed for the Journal's series in 2004 said that they were surprised that Speaks called no witnesses in Smith's defense and they felt that they then had to rely on the state's witnesses.
In 1999, Smith filed his own motion asking for a new trial, alleging that police and prosecutors relied on false testimony against him. He also said that Speaks was an ineffective attorney. A judge denied the motion without a hearing.
Speaks argued against the 1999 motion, but said yesterday that Smith should get a new trial based on the new evidence, particularly the withheld videotape of Marker viewing the photo lineups.
"It's something the jury needs to hear," he said.
■ Dan Galindo can be reached at 727-7377 or at
dgalindo@wsjournal.com
.
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