Jury finds man not guilty

From the Kingston Whig-Standard Online:

By Sue Yanagisawa

After three years behind bars awaiting trial, the man accused of murdering Amey's taxi driver David Krick is free.

Richard Edmund Smith, 34, was tried for second-degree murder over the past five weeks in Superior Court in connection with Krick's June 2007 stabbing death.

Friday morning, at 11:07, the foreman of his jury stood and announced that the verdict was not guilty.

The victim's family, sitting in the spectators' benches, looked shocked.

They believe the right man was on trial: Krick's 73-year-old mother, Shirley Krick, fought tears and his sister Brenda's jaw literally dropped upon hearing the words, while her brother, Raymond, and sister-in-law, Robyn Lawlor, sat silent.

Staff Sgt. Bill Kennedy of the Kingston Police clearly disagreed with the jury's verdict.

Kennedy headed the police department's major case unit at the time of Krick's murder on June 17, 2007, and led the investigation that resulted in Smith's arrest four months later.

After the jury and Justice Douglas Belch left the court, as officers went to the prisoner's dock to remove Smith's handcuffs and leg shackles, Kennedy exploded. Addressing himself to Const. Jim Lindsay, the police officer assigned to court house security, Kennedy growled: "Let him go. Let the killer go, Jimmy."

"I'm absolutely disgusted," Kennedy then announced, adding to Smith: "Go out and do it again."

As Smith left the Frontenac County Court House with his lawyers and walked through the parking lot, Kennedy called after him to enjoy his freedom because David Krick won't be enjoying his. Smith, head down, didn't respond.

Krick's family had already left, walking slowly but with dignity away from the court house, their disappointment palpable.

Even Smith's lawyer, Mary-Jane Kingston was touched by their situation, observing that Shirley Krick and her daughter are "wonderful people."

The two women faithfully attended almost every day of Smith's preliminary hearing and trial, absenting themselves only during those parts that involved graphic evidence of the injuries sustained by their son and brother.

Jury deliberations in Canada are secret, so no one will ever know how the verdict was reached, but before they were sequestered Thursday night and taken to a local hotel, jurors had sent notes to the judge five times requesting a recap of specific bits of witness testimony.

Their sixth and final question, asking what Dawhlia Martin-Chatterton said Smith was wearing when she was out with him the night of June 16, 2007, into the early hours of June 17, was answered by Belch at 10:35 a.m. yesterday, 20 minutes before they arrived at their verdict.

Belch told them Martin-Chatterton testified, "he was wearing a sweater. I don't recall the colour. It was like a knit sweater. It had sleeves."

Both lawyers and the judge had already told jurors that the case would come down to a matter of identity and credibility. The forensic evidence gathered during the investigation provided no direct link between Smith and the murdered taxi driver.

The Crown presented a largely circumstantial case that placed Smith a few blocks from the spot where Krick's stolen taxi was found a little less than an hour after its discovery.

There were also two instances of Smith's conduct the day of the murder that, in the estimation of police and assistant Crown attorneys John Skoropada and Elisabeth Foxton, cast him in a suspicious light: Smith's ready and uncorroborated explanation for his presence on Palace Road between 7:28 and 7:43 a.m. on a Father's Day Sunday and his burning of strips of cloth in his bathroom for over an hour with the lights off later that night.

Key pieces of the Crown's case were also problematic. The identification of Smith in the prisoner's dock at trial by Const. Lester Tang, was weakened by his failure to make it earlier at the preliminary hearing.

Tang said that Smith was the man he'd seen running from the parking lot off Macpherson Avenue where Krick's taxi was found minutes before 7 a.m. the morning of the murder. But he also described that man as having a round face and appearing well fed when other witnesses who knew Smith at the time said he was skinny and looked like a drug user.

Likewise, Holly Holland, a recovering crack cocaine addict, who called in an anonymous tip to Amey's Taxi stand implicating Smith in the murder on June 30, 2007, admitted she was on a drug binge with him when he confessed the murder to her.

Smith's defence lawyer, Gregory Leslie, suggested to jurors her mind and memory played tricks on her in her drug-addled condition and implied, in the alternative, that a criminal charge against her was dropped in Nova Scotia after she gave her statement.

He never put that question to Holland, however, suggesting it instead to Staff Sgt. Kennedy, who testified he wasn't aware the charge had been dropped.

There were things that the jurors weren't allowed to know during the trial.

Defence lawyer Leslie questioned both Dawhlia Martin-Chatterton, the woman who'd been with Smith the night before the murder and into the early hours of that Father's Day Sunday, and Holly Holland, who said she'd bought drugs from him and done drugs with him a number of times, about their impressions of his client's character.

Both agreed with Leslie they'd never seen his client with a knife. Martin-Chatterton also agreed that he'd always been "courteous" around her. Holland, when asked if she'd ever seen him violent or threatening said, "no".

There was no indication that either witness would have known -- and the jury wasn't told -- that Smith, who's originally from Hamilton, has been violent in the past.

He was convicted in 2003, in Milton, after he accosted a woman in the parking lot of a donut shop, forced her into her car at knifepoint, drove to a secluded spot and sexually assaulted her. Afterward, he forced his victim to drive to an ATM and withdraw cash for him from her account before he let her go.

He still hadn't completed the four-year, eight-month sentence he received for sexual assault with a weapon, forcible confinement, robbery, possession of property obtained by crime and driving while disqualified in October 2007 when he was charged with Krick's murder, and he wouldn't complete it until a month later on Nov. 30, 2007.

Nor was that Smith's first crime. His record dates to 1993 and includes property crimes, six convictions for failing to comply with conditions attached to various forms of release, impaired driving and domestic violence.

Jurors were told during his trial that Smith was hanging out in bars, using and selling drugs and cheating on his girlfriend. They weren't told that he was on parole, with conditions that prohibited him from drinking or using drugs and required him to report all of his intimate relationships because of his history of domestic violence.

The jury additionally wasn't told about the arguments in their absence, that the numerous delays -- with the exception of a three-day voir dire, a trial within a trial, on the admissibility of evidence -- were to accommodate defence lawyer Leslie. Nor did they know that he'd intended to make an issue in his closing argument of the Crown's decision not to call Smith's girlfriend at the time of the murder as a witness.

Leslie argued, in the absence of the jury, that Laura Clow, who shared the apartment at 117 Carruthers Ave. with Smith and was present when police seized burned cloth from their apartment's bathroom was "an important witness," but he chose not to put her on the stand himself.

Justice Belch ultimately forbid Leslie from suggesting the Crown was remiss in not calling Clow and told him if his order was ignored he would instruct them not to speculate on evidence they had not heard.

Jurors also didn't know that on Oct. 29, the Friday they were left in their jury room for almost seven hours without an explanation, it was because Leslie was talking to his client about pleading guilty to the homicide in return for a deal on sentencing.

After the verdict came in, Leslie told the Whig-Standard, "it was Richard's decision not to take the deal," to which co-counsel Mary- Jane Kingston quickly added "he can't plead to something he didn't do."

Leslie said, "that's what he said. That was his decision and he made the right decision."

suey@thewhig.com

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