Judge denies Montgomery officer immunity, murder trial to move forward

MONTGOMERY, AL (WSFA) - The immunity hearing for Montgomery Police Officer Aaron Cody Smith, who is charged with murder for the death of Gregory Gunn in 2016, has ended with a judge denying the officer immunity.

Judge Greg Griffin ruled from the bench after the immunity hearing, deciding the defense had not met the burden of proof necessary to show Smith was justified in using deadly force against Gunn.

The defense argued Smith acted in self-defense when he shot and killed Gunn while on duty. Defense attorneys Roianne Conners and Mickey McDermott used Alabama's 'Stand Your Ground' law as a defense, the first time a law enforcement officer has used it as a defense in the state.

"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. This trial will proceed on August 13."

The defense says it will appeal Griffin's decision because they believe their client is entitled to immunity.

TIMELINE: Gregory Gunn's death and Officer A.C. Smith's arrest

FIRST WITNESS - SBI AGENT JASON DINUNZIO

The defense's first witness was Alabama State Bureau of Investigations Agent Jason Dinunzio who testified to the events leading up to the shooting on Feb. 25, 2016, as told to him through interviews with Smith.

Dinunzio said Smith told him that, while patrolling, he saw Gunn on McElvey Street. After Gunn put his hands in his pockets, Smith decided to conduct a field interview and he pulled over. Smith told Dinunzio he ordered Gunn to put his hands on the hood of the police vehicle but when he approached for a pat down, Smith said Gunn threw down something and took off running.

Dinunzio testified Smith said he chased Gunn, and in one interview he said the two wrestled before Gunn got up and fled again. Smith said he tased Gunn several times, to no effect, then he brought out his asp, a police baton. Smith told Dinunzio he hit Gunn several times but Gunn continued to flee, eventually making it to the front porch of his neighbor's home.

Dinunzio said Smith told him when Gunn got to the porch, he picked up a paint pole, which the defense showed a close approximation of in the courtroom. The approximation is made of fiberglass, with metal lining. Smith said in one interview that when Gunn picked up the pole, he swung it at him, and Smith backed up. That's when he fired his weapon.

Attorney Mickey McDermott asked about the property found on the ground where the initial encounter happened, and Dinunzio said other agents collected the evidence, saying it was a cellphone, a cigarette container, and some crushed glass.

When asked about the container, Dinunzio said Gunn's sister advised it was usually used to hold a crack pipe.

Scott Green of the prosecution objected to further questions about Gunn's criminal history because Smith had no knowledge of it when the initial encounter and shooting occurred. Green also had no questions for Dinunzio but did ask him to stick around for further testimony.

SECOND WITNESS - MONTGOMERY MUNICIPAL COURT ADMINISTRATOR KEN NIXON  

Next, the defense called Montgomery Municipal Court Administrator Ken Nixon to speak about three warrants for Gunn's arrest in 2008 from traffic violations. Green objected to the testimony, saying Smith did not know about the warrants before the shooting. Attorney Roianne Conner said the testimony spoke to Gunn's state of mind during the encounter and his desire to not go to jail. Green said there was no way of knowing whether Gunn even knew about the warrants eight years later.

Judge Griffin allowed the testimony but Nixon left the bench to be called back later.

THIRD WITNESS - FORMER MPD OFFICER DONNA DUNN

Next, the defense called former MPD officer Donna Dunn, who arrested Gunn in 2007. Dunn testified that she and her partner, a trainee, went to a gas station where Gunn was employed at the time. They were there to serve a warrant, and when they did, Gunn said he was not going to jail and began to fight the officers. Dunn said he struck her partner in the face with a closed fist and the two wrestled on the ground, while she tased Gunn several times. Dunn said the taser had no effect on Gunn, so when he continued to resist she drew her gun and said she would have to shoot him.

Dunn said at this time, Gunn said, "That's all you needed to say," and put his hands behind his head.

Dunn testified that she knew Gunn as a man who swept the parking lot of a gas station but not much more. During the prosecution's cross-examination, Dunn said she did not give Gunn verbal instructions before the warrant was served, only requesting he speak with them as he was getting off work. He agreed. Dunn also said they were there to serve the specific warrant.

Green asked if Dunn feared for her life, and after pausing for a moment she said she was more afraid for her partner, who was inexperienced and was the one involved physically with Gunn. She said she feared Gunn would hurt her or her partner, which was why she pulled her weapon. Green also asked why Gunn was not charged with assault, and she said she could not remember.

FOURTH WITNESS - MONTGOMERY CORONER DR. STEPHEN BOUDREAU 

The defense called its fourth witness, Montgomery Coroner Dr. Stephen Boudreau. Boudreau proceeded to go over the multiple gunshot wounds and their trajectories, saying Gunn likely died very quickly. Boudreau testified the gunshots dislodged a lung, struck the heart, severed the liver and that Gunn essentially bled to death internally. He said the trajectory of the bullets could mean Gunn or Smith was moving during the shooting, but he could not speak as to which one was in motion.

The autopsy also showed Gunn was shot in the back, through his right hip and arm.

Boudreau later testified that Gunn had taken cocaine long enough to have it metabolized in his blood.

OFFICER SMITH TAKES THE WITNESS STAND

Smith was called to the stand next. This was the first time he'd testified. Smith, calm and showing no emotion, testified his district was "getting torn up with burglaries." Smith continued saying that during roll call his Lt. told him to "stop everything that moved in that district."

The statistics showed burglaries in the area were occurring between 1 and 5 a.m. Smith stopped Gunn at around 3:30 a.m., after observing him put his hands in his pocket and walk away from Smith quickly. He said a combination of factors led to him stopping Gunn for a field interview, including Gunn walking in a high crime area, matching the description of a person who had run from him the week prior, and the description of a man police were looking for  based on a "hot sheet" of information given to him at roll call.  Smith said he radioed his decision to stop, and he pulled over beside Gunn.

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.

While trying to radio for backup, Smith said Gunn elbowed him and took off running. Smith said he pursued him, telling Gunn to put up his hands. He said Gunn instead dropped his hands to his waist, and so Smith pulled his taser and fired one round.

Smith said Gunn fell to the ground, and Smith again ordered him to put his hands up. He said Gunn did not comply, so he tased him again. He said he did not want to get on the ground with Gunn because Gunn was so much bigger than him. Gunn again ran away, taking off for his home. Smith again fired his taser, to no effect, and then he brought out his baton.

Smith said he hit Gunn with the baton like he'd been taught at the academy, around the large muscle areas. He said he was still yelling for Gunn to show his hands, and he said Gunn told him, "Aight, police," in a sarcastic tone.

Gunn had made it to the front porch of his neighbor at this point, and Smith reported hearing a metallic clanking sound, then he saw the paint pole. Smith said Gunn had transitioned from fleeing to arming himself, and everything he'd been trying to do to subdue Gunn had failed. Smith said he then went for his gun.

Smith couldn't say how many rounds he fired; when he replays it in his head, it just sounds like one loud bang. After firing his gun, Smith said he circled around the porch, saw Gunn had been hit, and he radioed again for assistance.

The defense asked Smith why there was no dash cam video of the initial encounter, and he said he would have had to turn on the police lights to activate it or manually flip the switch. He did not do either because he was in a residential neighborhood, early in the morning, and because he did not want to take his eyes off Gunn because Gunn's hands inside his hoodie was a safety concern. Smith said that was his reasoning for not switching on his body cam as well.

Smith also said he began to chase Gunn and continued to chase him because he'd been taught if someone hits an officer they should automatically be arrested.

Smith described the whole situation as a nightmare, where he's screaming for help but no one is coming. After the shooting, he said he felt nauseous, and he was burning up despite the cold winter morning, and once backup arrived he yelled for someone to watch Gunn before lying on the ground to catch his breath. An audio recording of the radio traffic that morning was played, and when Smith heard his voice shout, "Shots fired!" his face turned down, visibly disturbed.

The prosecution objected when the defense asked if Smith was justified in the shooting, saying it was a matter of opinion. The defense said Smith is speaking to his own experience, so it isn't an opinion, but his own take on the events of the shooting.

The defense asked Smith if he was in fear of his own life, and he responded, "Absolutely".

During the testimony, Smith was told several times to slow down while speaking.

OFFICER SMITH RETURNS TO THE WITNESS STAND FOR CROSS-EXAMINATION

After a lunch break, Green cross-examined Smith about the events leading up to the shooting. Green asked if it was illegal for someone, in the dead of winter, to wear a dark hoodie, to put his hands in his pocket, and to walk in his neighborhood early in the morning. Smith said no, but he had reasonable suspicion that Gunn had committed a crime. He again cited the recent burglaries in the area, and he said Gunn matched the description of someone in a recent car break-in.

Green also asked about discrepancies in Smith's interviews, including the two after the shooting and his testimony Thursday. Discrepancies include his statement that he took out his taser after Gunn swatted his hand away, and that Gunn shoved him while they were still at the police car, which was only in the second statement. Smith said he's tried to be as truthful as he possibly can during every interview, but sometimes he remembers different details. He said the shooting is all he thinks about when he goes to sleep and when he wakes up.

Green asked if Smith was planning on charging Gunn with anything and he said after Gunn swatted his hand that constituted as harassment. Green had Smith read the law, which included a provision that there needed to be an intent to harass, which Smith could not speak definitively to.

Smith also admitted he had no prior knowledge that Gunn had a criminal record and he could not remember seeing a cigarette box fall from Gunn's pocket, which witnesses say may have contained a crack pipe.

Looking back, Green asked if Smith would have done anything different that morning. He said he could have stayed in his car, listened to music, texted his girlfriend, and he'd still be on the streets. Instead, he said he chose to get out of his car and do his job and he's been railroaded for it.

PROSECUTION'S FOCUS 

The prosecution focused on why Smith did not check Gunn for a weapon after shooting him, as is protocol. Smith said he was physically overwhelmed at the time.

When the defense questioned Smith again, Smith said when Gunn armed himself with the paint pole, he felt certain Gunn was going to kill him. He also testified that his body cam fell off because of how he drew his weapon.

Green, in a last line of questioning, asked if both Smith and Gunn were on the porch. Smith said Gunn was not on the porch; he was maybe a foot off when he picked up the pole. Gunn was still picking up the pole when Smith drew his weapon.

CLOSING ARGUMENTS

In closing arguments, defense attorney McDermott said the defense showed that Smith's actions were justified when he used deadly force to stop Gunn and that he was a lawful officer carrying out his lawful duty when he encountered a person who became a suspect by his own actions.

But Green said the law states that the defense must prove with a preponderance of evidence that the defendant's actions were justified, and the defense did not do that. He said Smith's testimony Thursday and other interviews have been "all over the place," and the defense did not show the court that there was a lawful reason to even approach Gunn and set into motion the events that led to the shooting. Therefore, he said they had not met the burden of proof necessary to decide if Smith should be immune from prosecution.

Griffin's ruling means Smith will face a trial by jury on Aug. 13 but the defense team said they plan to appeal the judge's decision.

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