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Smith and Williams take stand at Silk Plant Forest hearing
Both give versions in Marker beating case
Journal Photo by David Rolfe
Former Detective Don Williams testifies at Kalvin Smith's hearing.
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Published: January 7, 2009
It took 12 years, but Kalvin Smith and Don Williams, the detective who investigated Smith, finally made it to the witness stand.
Smith testified during the second day of a hearing on his request for a new trial for the 1995 beating of Jill Marker at the Silk Plant Forest, a store off Silas Creek Parkway.
"I never met her; I had never seen her," Smith said when asked if he hit Marker. "The first time I met her was at my trial."
Smith's attorney, David Pishko, is trying to prove that prosecutors relied on false testimony from witnesses in convicting Smith, that they withheld a videotaped interview of Marker and that William Speaks, Smith's trial attorney, was ineffective.
In 1997, a Forsyth Superior Court jury convicted Smith of beating Marker on the head about 20 times with a blunt object. The attack left Marker with severe brain injuries. Smith did not testify at trial, nor did Williams, the lead detective in the case, who has since retired.
Smith's case represents the most prominent allegation of wrongful conviction in Winston-Salem since that of Darryl Hunt, who was freed in 2003 after a DNA test linked another man to the 1984 killing of Deborah Sykes. Hunt served nearly 19 years in prison before his exoneration.
Smith said yesterday that Speaks never told him about the videotaped interview that Williams recorded in October 1996, several months before Smith's arrest.
That interview was the first time that Marker had been shown photo lineups of suspects, Williams said.
Smith was included in one lineup that she was shown, but she did not pick him out; in another lineup, she appeared to indicate that an earlier suspect in the case had been in the store that night.
Marker could not speak at the time and responded by nods and shaking her head; her movements often seemed like a combination of both.
Williams had said that his reading of Marker's reactions was that she didn't identify anyone, even when she tapped on a sheet with a photo lineup.
"She just hit the paper. She made no positive identification," Williams said.
Williams wrote a report summarizing the interview, but the report ended without mentioning any photo lineups. Speaks has testified that he doesn't recall ever being shown the entire videotape and didn't know about the photos, but he said he can't be sure.
If Speaks did know, an expert witness for Smith testified Monday, he was obligated to obtain the photos and challenge Marker's ability to identify a suspect
Williams said he didn't transcribe accounts of the lineups in the interview because it was on video, and writing it down would be redundant.
Investigators for a citizens committee reviewing the case verified that Smith was in the lineups by enlarging a still photo taken from the video. The lineup photos were not found in the case file and also were not mentioned in any of Williams' reports.
"If I didn't document that, that's a mistake on my part," Williams said. "I'm human."
Williams said he believed that Marker couldn't see then but that her condition had improved by September 1997, when he interviewed her again.
Williams said that Marker's identification of Smith in the second interview consisted of a look of horror on her face when she saw his photo. She tapped the photo, he said.
Williams said he didn't take his video camera on that interview.
When asked why, he said he wasn't required to, and that he and another detective "just didn't take one." He videotaped the first interview because Marker's responses were "not going to be verbal -- they was going to be by body language," he said.
"The second time I didn't take video because there wasn't a plan to ask many questions," he said.
Williams was asked whether he threatened or coerced Smith during an interview in January 1997, during which Smith gave a statement that led to his arrest.
Williams said no, but Smith said that coercion is what led him to give a statement saying that he was at the store when another man, whose name Smith made up, attacked Marker.
Smith said he did so only because Williams threatened to arrest his girlfriend, Valerie Williams, who was being questioned about the case in a nearby interview room.
"After he's telling me what to write, he says, ‘Who was with you?'" Smith said. "I said, ‘Well, nobody was with me. I wasn't even there.'"
Smith said that Williams, using an obscenity, told him to give a name "or you're going to jail."
Danielle Marquis Elder, one of two attorneys from the N.C. Attorney General's Office arguing against a new trial, questioned how Smith believed that writing that statement would help him.
"Your statement to the court is you believe it would be preferable to write a statement that put you at the scene of one of the most hideous crimes that Winston-Salem has ever seen -- that that would be preferable to letting Valerie (be charged)?"
"He told me if I wrote that I would be allowed to go home," Smith said. "I was pretty ignorant back then. I had never been in any trouble like that."
Elder began calling witnesses yesterday, including the case prosecutors, Mary Jean Behan and Eric Saunders.
Both denied allegations by Smith's attorneys that they threatened witnesses and withheld evidence from Speaks. Witness Eugene Littlejohn had said in his testimony Monday that Saunders paid him $500 to testify, an allegation that Saunders denied.
"I was a state employee. It'd be hard for me to come up with $500 to pay anybody for anything," Saunders said.
■ Dan Galindo can be reached at 727-7377 or at dgalindo@wsjournal.com.
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