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Agent: Officer changed story in 2nd interview after fatal shooting

Published: Mar. 24, 2016 at 11:25 AM CDT|Updated: Apr. 24, 2016 at 3:20 AM CDT
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Smith appeared in court Thursday for a preliminary hearing in connection to the Feb. 25...
Smith appeared in court Thursday for a preliminary hearing in connection to the Feb. 25 shooting death of Gregory Gunn while Smith was on duty. (Source: WSFA 12 News)
Gregory Gunn (Source: Gunn family)
Gregory Gunn (Source: Gunn family)

MONTGOMERY, AL (WSFA) - Montgomery police officer Aaron Smith's case has been bound over to a grand jury.

"The Court has heard evidence in this cause in preliminary hearings and finds that Probable Cause that a felony has been committed and probable cause that the Defendant committed the felony. As a result, the Defendant is Bound Over to the Grand Jury on the charge," Judge Jimmy Pool's order stated.

Smith appeared in court Thursday for a preliminary hearing in connection to the Feb. 25 shooting death of Gregory Gunn while Smith was on duty.

Smith was arrested and charged with murder six days after he shot and killed Gunn, a 59-year-old resident of the Mobile Heights area of Montgomery. The State Bureau of Investigation took over the case.

Smith's legal team requested the hearing to give them a chance to examine the evidence the state claims shows "probable cause" for the murder charge against the 23-year-old police officer.

The Montgomery County courtroom was standing room only with family and friends on both sides. A few of Smith's fellow police officers took up one side of the courtroom during the preliminary hearing. Those men and women in uniform stood up not only when Smith walked in but also when Gregory Gunn's family walked in.

Montgomery District Attorney Daryl Bailey questioned State Bureau of Investigation case agent Jason Dinunzio during the preliminary hearing.

The revealing two-hour testimony gave details of the struggle between Gunn and Smith on the morning of Feb. 25.

Dinunzio's testimony surrounded two interviews with Smith and his experience at the crime scene the day of the shooting. Dinunzio also explained Gunn's injuries and that his body was found with a paint roller in his right hand and his left hand tightly grasping a baseball hat.

This evidence would prove instrumental later in the testimony as Dinunzio explained Smith's account of the final moments of Gunn's life.

Dinunzio said he first interviewed Smith on Feb. 25, three and a half hours after the shooting, and again on March 1.

Dinunzio testified Smith told him during those meetings that Gunn never injured or verbally threatened him.

Smith was on his way back to the area following a traffic stop when he saw Gunn walking on the sidewalk. Smith pulled over on the curb beside Gunn and radioed that he was getting out of the police unit for a field interview around 3:20 a.m. Smith told Dinunzio during his interview that he did not see Gunn committing a crime, and he was not acting suspicious. He also confirmed he didn't know Gunn and never had contact with him prior to that morning.

Smith told Dinunzio "anyone walking in that neighborhood he would have stopped regardless of what race they were," Dinunzio testified.

Dinunzio said Smith did not engage the lights on his MPD-issued Tahoe, therefore the dashcam was not activated. Smith did not activate his body cam when getting out of the car as he did in prior engagements that night.

According to Dinunzio, Smith approached Gunn and asked him to take his hands out of his pockets and put his hands on the hood of the unit. Gunn complied, and Smith began searching Gunn. Gunn asked Smith why he was being stopped.

According to Smith's statement to SBI, he touched around Gunn's belt, and he began shuffling around, dropping a cell phone. That's when Smith says Gunn used his elbow to get away from Smith and fled. Smith told SBI he never saw a gun or felt a gun.

Dinunzio says from this point, Smith's statement about what transpired next changed between the two interviews.

According to Dinunzio, Smith's first account started with a short foot pursuit of Gunn where he deployed his taser into Gunn's back. The second interview, Smith said he wasn't sure if Gunn was armed. When asked why Smith deployed a taser to Gunn's back while he was running from him, Smith responded "I did not want to shoot him in the back."

Dinunzio testified he asked Smith "If you had gotten him in control, what was your next move?" Smith simply told him Gunn was trying to get away.

Smith told Dinunzio the taser had no effect on Gunn, and he deployed as many rounds as he had available and even used the dry stun taser method on Gunn's right shoulder.

Dinunzio said Smith's interview indicated Gunn continued to try to get away from Smith, and Smith shifted to using his baton.

Dinunzio said he asked Smith, at this point of drawing the baton, if he was planning to charge Gunn with anything? Smith said no.

Dinunzio asked Smith if he thought it was illegal to run from a police officer without charges. Smith said no.

Dinunzio said Gunn's scalp was split with an inch long laceration. Smith said it likely came from his baton. At this point in the first interview, Smith stated Gunn picked up a 5-foot-long paint roller and swung it at Smith, Dinunzio testified.

In the second interview, Smith changed his account, saying the pole was not swung at him. Dinunzio mentioned he had reservations about the initial statement Smith gave about the paint pole and called him back in again for the second interview. Smith told Dinunzio he backed up after Gunn grabbed the paint pole, and Smith fell into something. This is when Smith allegedly fired his weapon. Dinunzio confirmed seven shell casings were retrieved from the area where Gunn's body was recovered.

Dinunzio recalled a series of questions he asked him on March 1: did Gunn make threats, did he grab a gun, did he charge you with the paint roller -- all the answers were "no."

Smith told Dinunzio the pole was sitting by the house after the shooting at a 45-degree angle. The crime scene showed the pole was in Gunn's hand.

Dinunzio said Smith could not determine what he could have charged Gunn with following the struggle.

Smith's attorney Mickey McDermott cross-examined Dinunzio, asking if the Tahoe was dusted for latent prints to prove Gunn complied with the order. He also asked if the alleged blood found on the tip of Smith's baton that reportedly came from Gunn's head was tested.

The cross-examination proved Smith was mirandized and waived his right to an attorney during the first statement to SBI, hours after the shooting. McDermott said the statements changed as Smith was able to reflect and better remember what happened that day. McDermott also said Smith had a panic attack and had to be lifted from the yard outside the crime scene by other officers.

Dinunzio told McDermott investigators determined the cell phone found near the crime scene was Gunn's but had not tested something that looked like a shattered crack pipe found near the phone. Dinunzio could not say if it would be tested in the future. Dinunzio also testified Smith ordered Gunn to stop running and get on the ground, but Gunn did not comply.

Following the preliminary hearing, McDermott accused reporters of not doing their job by highlighting the past offenses of Gregory Gunn found in municipal records, including another incident where he harmed a law enforcement officer.

McDermott maintained Smith had probable cause due to the high crime area, and the desire of residents for additional patrol to solve the crime issue.

McDermott maintained Gunn was suspicious because he was walking in a crime-ridden neighborhood, wearing all black at 3:20 a.m. -- giving Smith full right to stop and talk to him and conduct a field interview.

The state maintains it is not against the law to decline to speak to a police officer, and you can walk away unless you are being investigated or served with an arrest warrant.

McDermott asked the judge to decrease Smith's bond of $150,000 calling it excessive. That request was denied.

TIMELINE: The shooting death of Gregory Gunn

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