Witness had story to tell

It was minutes before a pregnant store manager was brutally beaten - a story that would go on to make national headlines.

A woman shopping in the Silk Plant Forest near closing time approached the manager, Jill Marker. Might her 8-year-old boy use the restroom?

Marker said no - that the back of the store was dangerous.

Authorities never disclosed the exchange between Marker and the woman, believed to have been the last shopper in the store before the assault, to the attorney for the man eventually convicted of the crime, Kalvin Michael Smith. Today, it is one of the more compelling pieces of evidence piling up as Jim Coleman, a law professor at Duke University, builds a case for Smith, who has maintained his innocence.

Nearly 12 years later, no one is sure what Marker meant when she said that the back of the store was dangerous. The woman who spoke with her said in an interview last week that it has bothered her for years that neither police nor prosecutors seemed interested in hearing the detail about her conversation with Marker.

The customer agreed to talk about the case on the condition that she be identified as Paula G., without her last name published to protect her privacy.

The new information could be significant because it might indicate that Marker was worried about someone who was already in her store before she was attacked on Dec. 9, 1995. The case against Smith alleged that the attack on Marker was a random robbery committed by someone who came in through the store's front entrance.

The Duke Law School Innocence Project has spent years putting together what it says is new evidence that was not disclosed to Smith's attorney before his trial in December 1997.

Paula G. was among several customers in the Silk Plant Forest on the night of the attack. She said she went into the store with her son to look at Christmas trees. Another woman customer and her children were leaving. No other shoppers could be seen.

Her son needed to use the restroom, so she asked Marker.

"She said something to the effect that she's sorry - it was dangerous in the back," Paula G. said.

The lack of any panic in Marker's voice, she said, made her wonder at the time if Marker was referring to boxes stored in the rear of the store.

Paula G. walked around the store but wound up leaving Silk Plant Forest and going to the nearby Toys 'R' Us to use the restroom there.

As they left, Marker was at the cash register and talking on the telephone.

"I passed right through where she was to look at something, and I heard her say on the telephone . 'yes, there are still customers in the store.'"

It sounded like a personal call.

Paula G. told police that she left the store at 8:45 p.m., while Marker was still on the phone. The attack happened within minutes, just before the store's 9 p.m. closing.

It's not clear who was on the phone with Marker.

Police asked for phone records for the Silk Plant Forest. But the phone company had a problem retrieving information in its system, according to a report written by Detective Don Williams, the lead investigator. Although records going back about a month before the crime were obtained, there were none covering the last few weeks and the night of the crime. It is not clear from records whether police ever followed up with the phone company to try to determine the nature of the problem and whether it could be fixed.

Coleman sent an e-mail to Police Chief Pat Norris in July inquiring about the phone records.

Crime Stoppers called

A few days after the assault, Paula G. said she saw a television report about it in which police indicated that they wanted to talk to a woman who was in the store with her son. She knew that they were probably talking about her, and she said she realized the potential significance of what Marker had told her and called Crime Stoppers.

She got a call back from a Winston-Salem police detective, she said, and he asked if she had seen anyone when she went in the store or when she left.

"I don't think he was too interested in what I had to say because I probably tried to tell him that she wouldn't let us use the restroom," she said. "I do remember bringing it up, and I remember him not saying much about it or pursuing what I was saying.

"The main reason I remember it is because I wanted somebody to know that."

Williams filed a report of his phone conversation with the woman. He said he called her on Dec. 29, 1995, to question her about the time frame that she was inside the store, according to the report, which goes on to say that Paula G. "had no further investigative information to offer."

Williams' report makes no mention that the woman talked to Marker or that Marker was talking to someone on the phone.

Early in the Silk Plant investigation, the police focused on a man named Kenneth Earl Lamoureux. He had a history of mental illness and domestic abuse, and was known to hang out at the Silk Plant Forest to talk to Marker, according to witnesses.

Two women who were in the store between 7:20 and 7:45 p.m. later identified Lamoureux as being in the store at that time and behaving strangely.

He asked one of the women about the meaning of words on her jacket, then walked away mumbling to himself, according to her statement to police. The other woman said that Lamoureux came from the rear of the store when he approached, and they said that he was still in the store when they left.

Another witness told police that Marker had told her that Lamoureux spent time hanging around the store to talk to her. Lamoureux also knew Marker from a day-care center where she worked, because his children went to the center.

But Williams stopped investigating Lamoureux after he moved out of town, and began focusing on Smith after a jilted girlfriend called police to say that he was the attacker.

Paula G. said she had no contact with authorities between the time that she spoke with the police and when she was summoned to the Forsyth County District Attorney's Office to meet with prosecutors before the trial, nearly two years later.

She said she met with a woman in the lobby whose name she does not recall.

"She made it clear to me that all I was there for was to establish a timeline, and I didn't need to talk about anything else," she said.

She said she then went into an office to talk to a man while the woman stood nearby. She can't recall now whether they were prosecutors, but she remembers that they told her about the questions that she would be asked in court.

"He asked me what time I went in the store, what time I left the store, and if I tried to say anything other than what time I came to the store and what time I left the store . he shut me down. He would not let me say anything else.

"He said, 'We're not going to ask you about anything else. We're just going to ask you about the time. And we know everything else we need to know.'"

She said she left the meeting with a distinct impression.

"I felt very much he did not want to hear what I had to say . I remember leaving there thinking, 'Maybe I'll get to tell some other time.'"

When she testified at the start of the trial, she was asked only about the times that she entered and left the store. She said she hoped that defense attorney William Speaks, who was representing Smith, might ask her what she saw, but he had no questions on cross examination. It is not clear whether Speaks ever knew about what Paula G. had told the district attorney's office. Speaks' case file, which Coleman reviewed, contained no mention of it.

Last year, the woman tried to e-mail the Duke Law School Innocence Project after reading a newspaper article about Smith's claim of innocence. She later got a phone call from Coleman, who as faculty adviser of the Duke program had seen prosecutors' notes about the woman's conversation with Marker.

"We began to pursue (her) after we saw that she had mentioned to a prosecutor, to one of the prosecutors, that her son couldn't go back into the back room because it was dangerous and that the prosecutor had put 'dangerous' in quotes," Coleman said.

The woman's conversation with Marker is among a number of new pieces of evidence that the innocence project says it has gathered since its investigation began. Attorneys for Smith have said that they plan to file a motion asking for a new trial.

Questions linger

District Attorney Tom Keith has done some interviews of his own, including one with Williams last week. Keith's office prosecuted Smith in 1997.

Keith has largely focused on the handling of evidence, including two interviews that Williams had with the severely injured Marker in Ohio, where she moved after the attack to be near her parents.

She had given birth, while in a coma, to a healthy boy but had suffered severe brain damage from being struck in the head about 20 times with a blunt object. Police never found the weapon.

Questions linger about why Williams did not document lineup pictures that he showed to Marker during an October 1996 interview, despite making a videotape of the interview, and why he did not videotape a second interview with Marker in November 1997.

In the first interview, Marker did not identify Smith as her attacker, though she apparently did identify Lamoureux as having been in her store.

It was during the unvideotaped second interview, Williams said, that Marker had identified Smith, who had become Williams' prime suspect.

Speaks, Smith's defense attorney during the trial, has signed an affidavit saying that he never saw the portion of the videotape of the first interview in which Marker was shown a lineup. The police have said that they turned over the videotape to prosecutors. Keith has defended one of his assistant district attorneys, Mary Jean Behan, saying he believes that she did show the videotape to Speaks.

Keith did say that he is open to filing a motion to vacate Smith's conviction if he finds evidence of innocence.

He put an assistant district attorney, David Hall, in charge of reviewing the case. Hall, too, said that the office is not ruling out the possibility that Smith's conviction could be erroneous.

Separately, the city of Winston-Salem on Aug. 14 released an administrative review of how police handled the case. The review was ordered because of continuing questions that Coleman raised about the case and that had been brought up in a Winston-Salem Journal investigation into the case published in 2004.

The five-day Journal series found problems in the work of police and prosecutors, and flaws in the statements that police took from witnesses whose testimony helped to convict Smith. Coleman has since obtained affidavits from several witnesses who said that the police coerced them into their statements.

As part of the city's review, officials put hundreds of pages of police records on the city's Web site. Within those documents, Coleman said he found some that were not part of the defense file that also address the possibility that Marker knew her attacker.