Day 2: Case agent takes stand, plays video of MPD officer’s interview

Updated: Nov. 20, 2019 at 6:09 PM CST
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OZARK, Ala. (WSFA) - Testimony continues on day 2 of the murder trial for Montgomery Police Officer Cody Smith. Smith is charged in the deadly on-duty shooting that claimed the life of Greg Gunn on Feb. 25, 2016.

Wednesday, the jury heard two recordings of Officer Smith’s account of the incident with Gunn. The state called the case agent, State Bureau of Investigation Special Agent Senior Jason DiNunzio shortly after 9 a.m. Montgomery District Attorney Daryl Bailey questioned DiNunzio on the basic elements of the investigation.

Then the state admitted a key piece of evidence in this case: DiNunzio’s interviews with Smith. DiNunzio’s first interview with Smith was hours after the shooting. The audio recording gave the jury Smith’s first-hand account of what happened in the Mobile Heights neighborhood that morning. The first recording lasted nearly an hour. The jury stared in the direction of the audio speaker, closely listening to Smith’s account.

Smith told DiNunzio that he was driving through the area and saw Gunn walking down the street. As he slowed down, Gunn picked up his pace and put his hands in his front hoodie pocket. That’s when Smith said he jumped out of his Tahoe and asked him to put his hands on the hood to pat him down for weapons. When Smith got to Gunn’s waistband area, Gunn began asking why he was being stopped and sidestepped the SUV and began running. Smith said he pursued Gunn because he didn’t finish his pat down search and wasn’t sure if he was armed. Smith says Gunn pushed off him and reached back toward his waistband and he deployed his taser in response, which had no effect.

“I deployed another taser cartridge when I caught up to him a second time,” Smith said. “He pushed off me again, and I pulled my baton.”

By this time they were on a porch near Gunn’s mother’s house when Smith said Gunn grabbed a long paint pole and swung it at him and he ducked.

An investigator asked Smith whether he felt his life was in danger, and Smith said, “I was afraid I was about to get hit in the head...”; the remainder of Smith’s statement was unintelligible.

Ten days later, Smith sat down with Agents DiNunzio and Green again at SBI Major Crimes Unit to discuss the shooting again. The jury watched a lengthy video recording of this interview, showing a single overhead angle. DiNunzio, Green, Smith and Smith’s attorney Mickey McDermott were at the table.

DiNunzio told Smith it was not uncommon for his recollection of the events to become clearer in the time following an incident of this kind.

The agents worked to take Smith through the incident countless times, trying to get a clearer idea of what transpired.

The agents asked Smith what his commands to Gunn were during the altercation. Smith went over several verbal commands. Some parts of the altercation weren’t coming back to Smith. Smith and Green stood up in the small office and re-enacted the situation on the porch, asking Smith where the paint pole was located before and after the shooting, what side Gunn was holding it, and where it was after the shooting was over. Smith said the pole was propped up on the wall after the shooting. Pictures of the scene showed the pole laying beside Gunn’s right hand on the ground.

The demonstration ends and the officers talk Smith back through the course of the struggle multiple times. Green asked when he used his taser, “at this point did you have any charges on him whatsoever”? Smith explained he pushed off on him so it would have been a harassment charge. Green then asked, “do you think he intended to hit you,” but that was unclear. Then Green questioned, “What would have been your goal at that point if you had him in custody”? Smith responded, “I would go ahead and place handcuffs on him.”

McDermott asked, “If someone runs in the process of a pat down, do you pursue - you always chase him, that’s your procedure?” Smith said yes.

“Do you have a duty to detain him and find out why he ran?” McDermott asked.

Smith responded, “Yes.”

Green spoke up, “Was there anything broken into that day by a person that fit the description of Mr. Gunn that had you looking for someone of his stature.” Smith stated yes, explaining he fit the description of a BOLO, or be on the lookout, he received at roll call.

“At what point do you terminate this, at what point does this interview stop?” Green asked. “My understanding is he’s telling you he didn’t have anything to say to you.”

Smith went back to the lookout, stating Gunn fit the description of a person of interest in that area, as it was getting “torn up with burglaries.” Smith reiterated again his supervisor said to stop everyone out in the neighborhood.

As the interview concluded, McDermott had a heated conversation with the investigators over the status of the investigation, but agents couldn’t say at that point.

The video lasted more than an hour. After it concluded, DiNunzio said the only major things Smith added during the second interview was that Smith drive-stunned Gunn, which involves direct taser contact, and that Gunn cursed Smith after he deployed the taser.

Bailey asked DiNunzio if he made the decision to arrest Smith. DiNunzio stated, yes.

Following DiNunzio’s testimony the state elected to read a transcript of Smith’s testimony from the July 2018 immunity hearing into the record for the jury. Prosecutor Ben McGough read the transcript of the attorneys’ questions to Smith while Montgomery District Attorney Daryl Bailey sat in the witness box and read Smith’s responses. This will allow the state to reference Smith’s former sworn testimony during the trial.

The state will likely rest on Thursday. The defense is expected to call Smith to testify.

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