OZARK, Ala. (WSFA) - Montgomery Police Officer Aaron “Cody” Smith will stand trial for murder this week involving a 2016 on-duty shooting.
Smith fatally shot Gregory Gunn, 59, during a field interview on McElvey Street on February 25, 2016. Gunn was unarmed.
The trial will be held in Dale County, the former judicial circuit of retired Circuit Judge Philip McLauchlin, Jr. McLauchlin is the ninth judge to preside over this case following a number of recusals.
Smith has exhausted all legal avenues to have this murder charge dismissed. In July 2018, Montgomery Circuit Judge Greg Griffin denied Smith’s immunity from prosecution following lengthy testimony. Smith was the first officer to seek immunity using Alabama’s “Stand Your Ground” law as a defense.
Griffin denied Smith’s immunity, stating "I have to admit to you I didn't find the officer's testimony credible," said Judge Griffin. "I don't feel you have met the burden of proof.”
In January 2019, the Alabama Supreme Court agreed that comment could influence a potential jury and granted the defense’s petition for a Writ of Mandamus, forcing Griffin to recuse and granting a new trial venue outside the footprint of the Montgomery media.
McLauchlin was appointed to preside over the case and moved the venue to Dale County sparking additional appellate court litigation. The state argued Dale County was still within WSFA 12 News’ media reach due to the station’s daily newscasts broadcast in the Wiregrass through WDFX-TV. The Alabama Court of Criminal Appeals denied their petition for a Writ of Mandamus to move the trial venue as it was outside the statutory filing time frame. The state filed the petition with the Alabama Supreme Court, which was also denied.
Smith was working alone on third shift the morning of the deadly shooting and previously testified his district was ‘getting torn up with burglaries’. During roll call that day, Smith said his lieutenant instructed him to ‘stop everything that moved’ in his district.
Smith saw Gunn walking down McElvey Street around 3:30 a.m. and conducted a field interview. Smith said he stopped Gunn because he fit the description of a man police were looking for based on a “hot sheet” of information he received a roll call. Smith said he told Gunn to take his hands out of his pockets and put them on the hood of the police vehicle. Gunn complied, but Smith said Gunn was irritated, and he asked why he was being stopped. Smith then began a pat-down, and he said he touched something hard around Gunn's belt that he thought could be a gun. At that time, Smith said Gunn swatted his hand away and began to sidestep around the police car.
Smith radioed for backup, that’s when Gunn reportedly elbowed Smith and ran. Smith said he pursued him giving verbal commands. When Gunn allegedly dropped his hands to his waist, Smith fired a round from his taser. According to Smith, Gunn dropped to ground as he continued to call for him to put up his hands. When Gunn didn’t comply, he tased him again.
Smith noted during previous testimony that he didn’t want to get on the ground with Gunn because Gunn was much larger than him. As the struggle pursued, Smith says he used his baton to attempt to subdue Gunn, going through the force of continuum as he was taught in the academy. By this time, Smith said the struggle pushed them near the front porch of a house. Smith reported hearing a metal clanking sound and then saw Gunn arming himself with a paint pole. That’s when Smith said he pulled his gun and fired, fatally wounding Gunn.
Smith says he felt his life was in danger and for that reason, the defense maintains the shooting was justified.
The state previously Smith didn’t have a lawful reason to approach Gunn, which set the events into motion that lead to the deadly shooting. When the state asked Smith during a previous hearing if he ever had intentions of arresting Gunn, Smith said he had reasonable suspicion that Gunn had committed a crime based on the information he received a roll call.
Smith was arrested on March 2, 2016 following unrest and tension over Gunn’s death. Smith’s attorneys called this action unprecedented, as most lethal force cases aren’t charged before the case is presented to a grand jury. A murder indictment followed in November 2016.
Smith remains on the Montgomery Police Department payroll, he was placed on paid leaving after the shooting. The City of Montgomery opened an internal investigation into the shooting, however the conclusions were never made public.