OZARK, Ala. (WSFA) - The jury in the murder trial of Montgomery Police Officer Cody Smith will be charged Friday morning and begin deliberations.
Attorneys took nearly three hours to comb back over the witnesses and evidence during closing arguments Thursday evening. The jury will be charged Friday on murder and the lesser included charge of manslaughter.
Smith, who is charged with murder in the on-duty shooting of 59-year-old Greg Gunn on Feb. 25, 2016, took the stand in his own defense Thursday morning.
Thursday, prosecutors called their final witness, Alabama State Bureau of Investigation Agent Anthony “Tony” Green. Green was one of the agents seen in video recordings interviewing Smith after the shooting.
The state’s line of questioning for Green Thursday involved the difference between a consensual stop, where citizens can decline to speak with police, or a Terry Stop (Terry v. Ohio), where officers must have reasonable suspicion that something is happening, is about to happen or has happened.
During a Terry stop, which is also known as a “stop and frisk,” you cannot decline to speak with officers.
Green testified he didn’t believe Smith had the criteria to conduct a Terry stop with Gunn.
The state asked if he would have chased Gunn based on what Smith had reported took place and if he would have tased him. Green responded, “No.”
The state then rested and the defense took over. Smith was then called to testify at around 10 a.m.
Smith faced the jury and explained he’d been a police for several years.
Defense attorney Mickey McDermott asked Smith whether he liked his job. Smith responded, “I love my job.”
Smith is a third shift police officer who works what he described as a crime-riddled district on the city’s west side.
“I saw my job as someone responsible for protecting your home and cars while you were sleeping,” Smith said.
The defendant went over his instructions in roll call on Feb. 25, 2016.
“My roll call supervisor gave me the Comstat [crime data] Report and told me to stop everything and every person that moved in my district,” he said. “My district was absolutely reeling with crime. I’m the only officer responsible for that area and whatever happens.”
Smith explained he started his patrol down center of his district and fanned out from there, driving every street in the area. When he turned, Smith said he saw a man in a black hoodie that fit the description of a man wanted in his district for property crimes. Smith was walking in his direction, so he pulled his police Tahoe around in the direction Gunn was walking to have more light as it was dark in the area. Smith said when he parked, Gunn put his hands in his pocket and picked up his pace.
McDermott asked Smith at that moment, did he have any charges on Smith.
“No, I planned on stopping and talking to him,” Smith said.
McDermott responded, “You have to have intent to murder someone.”
“When you stopped your car, did you have the intent to kill Greg Gunn?” McDermott asked. Smith said, “No sir.”
McDermott asked Smith why he stopped Gunn.
“He may be the guy I’m looking for - someone has to be walking in that neighborhood at 3 o’clock in the morning to break into these cars,” Smith said.
Smith said Gunn put his hands in his pockets, and he asked him to put his hands on the hood of the police Tahoe for a pat down to ensure Gunn wasn’t armed.
McDermott had Smith come off the stand and walk down in front of the jury. McDermott placed his hands on the front of the jury box and asked Smith to physically walk him through the pat down.
Smith showed the jury the progression of events; as he got to Gunn’s waist he felt something hard and Gunn quickly swatted his hand away. Smith said he felt he had a harassment charge against Gunn due that “intentional touch,” based on his training.
McDermott asked whether that’s ever happened to Smith before, Smith said yes.
“Did you arrest that person?” asked McDermott. Smith said no. “Did you tase that person?” he asked. Smith responded no. “Did you shoot that person?” McDermott questioned. The answer was no.
Smith testified that Gunn began yelling and then yelled across the street as if he was yelling to someone. It was too dark to see whether anyone was there.
Smith said Gunn tried to sidestep the Tahoe and he pushed him toward the hood and radioed for backup. He explained he didn’t tell Gunn he was under arrest - because Gunn’s behavior was escalating, he wanted backup to arrive before he tried to take him into custody.
Gunn fled and Smith followed, stating he was trained to chase and apprehended if someone who is suspected of a crime flees.
During that chase Smith used his taser three times; once Gunn fell but got back up and continued to run. During the chase Smith said he yelled multiple times for Gunn to stop and show his hands.
Smith said Gunn ran toward a dark porch, as they got closer he used his asp or police baton multiple times to try to subdue him, but it had no effect.
During this time, Smith remains in front of the jury physically detailing every aspect of the chase.
Earlier in the week, the state called the crime scene technician to testify; during her testimony they used painter’s tape to mark the exact dimensions of the porch where Gunn was shot.
McDermott has Smith to use this replica of the porch to stand and show him where they entered and where Gunn was standing.
Smith said Gunn stated, “Alright police,” as he ran onto the porch. He took that as a threat. As he followed Gunn onto the porch he could hear a metal clanging sound. At this point, he’s still unsure whether Gunn had a firearm.
Smith said Gunn turned back toward him with what looked like a metal pole in his hand.
McDermott stopped Smith’s testimony and asked, “Did you feel your life was in jeopardy at that point?” Smith stated yes. “Did you believe Mr. Gunn was going to harm you?” Smith responded, yes. “Did you believe Mr. Gunn was about to strike you with this object?” Yes, said Smith.
Smith said he backed up to put distance between he and Gunn and backed into a pole on the porch, realizing he was boxed in. That’s when Smith pulled his duty weapon.
McDermott asked Smith, “When Gunn picked up that painters pole and turned toward you, did you believe you had a right to discharge your weapon?” Yes, said Smith. “Was it your intention to kill Greg Gunn?” asked McDermott. “I had to stop him,” explained Smith. “If he’s brave enough to kill a uniform police officer - if he takes me out he’s got access to all my weapons on my belt, a running police Tahoe down the street with an AR-15 [semi-automatic rifle] inside.”
McDermott asked Smith why he didn’t shoot Gunn in the head. Smith testified he didn’t intend to kill Gunn, only “stop him,” as he was now concerned he was capable of harming him and anyone else Gunn encountered.
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