Lawyers make final pitch

From the Kingston Whig-Standard online:

By Sue Yanagisawa

"This is a whodunit," the jury on Richard Smith's second-degree murder case was told Wednesday by assistant Crown attorney John Skoropada. "Who killed David Krick?" he asked rhetorically: "I'm telling you Richard Smith killed David Krick."

He then reminded them of evidence they'd heard at the start of the trial from 28-year-old Dawhlia Martin-Chatterton, who testified that she'd spent the Saturday evening of June 16, 2007, in a bar with Smith, leaving with him and another man, identified in court only as Chris, at closing time in the early hours of June 17, 2007.

Martin-Chatterton told jurors she had sex with both men at Chris's apartment before she took a cab home to South Barlett Street. She recalled that he didn't want her to go and told her he'd come by her place later.

She also said that, upon waking around noon that Father's Day Sunday, she found a message Smith had left on her answering machine just after 4 a.m. indicating he'd made good on that promise but hadn't been able to wake her.

Skoropada reminded jurors that Krick, 50, who drove for Amey's Taxi was dispatched to pick up his last known fare from the YMCA parking lot off Wright Crescent about two and a half hours later that morning, at 6:33 a.m.

Jurors heard during the trial that the panic button in his cab was pushed about 10 minutes later and that Krick managed to make a 911 call before he was found on the sidewalk on Durham Street, stabbed 31 times and without vital signs.

Krick's cab, Amey's taxi No. 71, meanwhile, had been stolen and driven back to within blocks of the spot where he'd picked up his last fare. It was found abandoned in a parking lot off Macpherson Avenue and Sir John A. Macdonald Boulevard and the police officers who made the initial discovery both saw a man bolt from the area, minutes before 7 a.m. But they weren't able to catch him.

Police were still in the vicinity looking for the runner when Smith roused the suspicions of Amey's cab driver Jai Scouten, who pointed him out, walking south on Palace Road, to Const. Edward Gaulton.

Scouten said he became curious about Smith because he drove past him three times and "he refused to look at me." He testified that he pulled alongside the pedestrian and told him "we were looking for a guy," without disclosing why. Smith, jurors were told, responded by volunteering that he was coming from his employer's place on Wright Crescent, adding that he didn't know the address, which Scouten also found odd.

Gaulton testified that he stopped Smith at 7:43 a.m. after talking to Scouten, searched and questioned him and received the same information that Scouten had, plus the name of his employer -- Harry Buttle -- and Smith's claim that he'd gone to Buttle's apartment to enquire about work. He told jurors he didn't believe Smith, but the clothes Smith was wearing didn't match the suspect description -- light-coloured or faded jeans and a black, long-sleeved jersey. He also didn't see any evidence of blood or injury to indicate Smith might have been involved in a knife attack.

Buttle died before the trial began, but jurors heard his recorded testimony from Smith's preliminary hearing . He testified that he was away from his apartment between 7 and 9:30 a.m. that morning. He said Smith later told him that he'd dropped by to enquire about jobs and thought it "strange," in that he'd never done it before.

Skoropada questioned Smith's claim of an early morning visit to his employer and told jurors "it defies logic that someone who's been out partying until at least 4 a.m. on a Sunday morning wouldn't have called ahead."

He suggested to them Smith's explanation was a lie, "to deflect suspicion away from himself about why he's on Palace Road."

He also reminded them that they'd heard evidence about Smith having friends on Cliff Crescent, a few blocks south of where Krick's cab was found, and said Buttle testified at the preliminary hearing that Smith kept extra clothes at the home of one of those friends and in Buttle's van, which was parked on Wright Crescent.

The Crown prosecutor directed jurors to a map that's been tacked to the wall opposite them throughout the trial and asked them to take note of where David Krick was found, behind the "no-tell motel" that housed the now-defunct XXX Sports Bar, which Smith frequented. He also asked them to note where Buttle and Smith's friend on Cliff Crescent lived, and the spot where Smith was stopped on Palace Road almost an hour after police saw a suspect fleeing the vicinity of Krick's abandoned cab. Skoropada observed, gesturing toward the map, that "Richard Smith lives in the middle of this."

In his closing, Smith's defence lawyer, Gregory Leslie, invited the jury to reject key evidence from two of the Crown's witnesses in the trial: Const. Lester Tang, who identified Smith in the prisoner's dock as the man he'd seen crouching and then running from the An Clachan parking lot off Macpherson the morning of the murder; and Holly Holland, an admitted crack cocaine addict who called in an anonymous tip to Amey's Taxi stand on July 30, 2007, implicating Smith.

Holland was in Quinte Detention Centre when Krick was killed, but testified that immediately after her release, she went on a drug binge with Smith and another man named George at an apartment on Joseph Street. She claims that Smith told her while they smoked crack together that he'd killed "the cab driver" and afterward ran into an apartment building to escape. She said he told her he didn't get much money and speculated that he was trying to impress her.

Leslie suggested, however, that after days of drug use without sleep or food or any intake of fluids, Holland's memory played tricks on her. He theorized that her mind, under the influence of drugs, imported a conversation about the murder she'd overheard between strangers when she first arrived at the Joseph Street apartment.

The defence lawyer also questioned Tang's ability to make any identification based on a glimpse of the runner's face that Tang estimated had lasted only a second. He reminded jurors that Tang didn't identify his client during his preliminary hearing and said at this point "he might be lying, and then again he might not be." Leslie suggested the constable's recall was tainted by seeing a photograph of his client in the newspaper following Smith's arrest in October 2007.

Likewise, he largely dismissed the evidence of his client's neighbours, who testified about seeing a man burning what they believed were strips of cloth in Smith's bathroom for about an hour beginning around 11 p.m. on June 17, 2007.

"You might say to yourself, 'that's weird, that's a bit weird what Richard Smith was doing that night.' Fine, think that," Leslie told them. "I think it's weird." But it doesn't matter, he said, because the forensics expert who examined the material police retrieved from the apartment's toilet and sink couldn't tell them anything more than the material included fragments of denim.

Skoropada, in his closing, said the absence of forensics in this case isn't surprising because this is real life, not CSI Miami. He noted that in addition to not finding Smith's fingerprints in Krick's taxi, for instance, the forensic experts weren't able to identify any belonging to Krick.

But Leslie emphasized repeatedly to jurors that the onus lies with the Crown to prove his client committed the murder and "Richard Smith doesn't have to prove anything."

Skoropada used the analogy of a "constellation effect," and told the jury that when you look at one or two stars in a constellation "you have no idea what you're looking at," but when you look at them all together it becomes obvious.

Leslie borrowed the Crown's analogy comparing components of the evidence to stars in the Big Dipper and told jurors, "this huge constellation of factors that pull everything in to convince you he's guilty rests on Holly Holland." If you take out Holland and Lester Tang, Leslie told them, "you might think it's the Big Dipper, but you wouldn't be sure, and in Canadian law you have to be sure."

"I'm not going to tell you Richard Smith is a nice guy," Leslie said. "We know he sold drugs. He sold drugs to Holly (Holland)."

He warned them, as well, that emotion can play no part in their deliberations.

"What happened to Mr. Krick is horrible," he said. "He did not deserve what happened to him. But you cannot say, 'someone has to pay the price.' "

suey@thewhig.com

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