Defendant breaks silence as murder retrial begins
TRENTON >> Former Newark gang member Shaheed Brown poured his attorney a cup of water.
Harried defense attorney Edward Heyburn needed it after giving a long-winded and disjointed opening statement Thursday, in his client’s second trial for allegedly gunning down Enrico Smalley Jr. outside of La Guira Bar on July 12, 2014.
Both attorneys’ opening remarks to jurors were restrained, devoid of some of the more explosive material highlighted at the first trial and later in the day when a judge cited a reporter’s social media rumblings to deny allowing Brown to be freed on bail while his trial plays out.
This happened after Brown complained about how his case has been handled by Judge Andrew Smithson. There was never a dull moment in the highest-profile trial in Mercer County, which opened on a day when prosecutors secured convictions in an aggravated assault and robbery cases.
Assistant Prosecutor Brian McCauley’s opening in the murder trial was pointed, though not poignant, as he laid out the last minutes of Smalley’s life, when he was captured by video surveillance walking down the side walk with them an accused of pulling the trigger.
“There was no struggle,” McCauley said. “There was only death, only murder.”
One of the two witnesses called to the stand discussed the gruesome scene outside the bar.
Sgt. Steve Wilson, a 22-year veteran of Trenton Police known to city residents by the nickname “Indian” for his mocha complexion, said he was pulling out of the parking lot at police headquarters two blocks away when the call went out for shots fired.
He raced to the scene as “pandemonium” unfolded. People scurried from the streets. A group of people, including some of Smalley’s friends, had circled around him.
Smalley was shot several times and was on his back on the bloodsplattered
sidewalk.
Wilson said the Ewing man’s friends begged him for assistance.
“‘Indian,’ they said, ‘save him. He’s my friend. Save him.’”
Wilson checked Smalley for a pulse, noticed he was still breathing and talked to him. He attempted to call for an ambulance but the dispatcher initially couldn’t hear over the piercing screams. Smalley’s friends quieted the frenzied crowd.
Smalley died at the hospital, his clothes collected by a crime scene detective who also testified.
She photographed and collected evidence from outside the bar, which included bullet fragments and 9 mm shell casings.
No fingerprints were found on the shell casings. A murder weapon was never recovered.
Heyburn’s task was as difficult as investigators who arrived outside the chaotic bar.
He tried to reconstruct the murder scene using a stodgy diagram, hoping to give the jury “a road map” of where witnesses and others were at the time of the shooting.
He hoped to show jurors Brown not only “wasn’t the shooter, but couldn’t have been the shooter.”
Heyburn’s road map was littered with distracting detours and roadblocks.
Heyburn mentioned a random man on the street known as “Juice”
whose apparent role in the case is he was part of “an escort or block” that included Rasean Sutphin.
Surveillance video that will be played at trial will show the men walked in front of Brown and Smalley moments before the shooting.
The defense attorney kept getting interrupted by Smithson and McCauley.
The judge told Heyburn he veered off course in what was supposed to be a recitation of facts that will come out at trial.
“This is sounding very much like final arguments,” Smithson said.
McCauley objected several times to Heyburn’s statements.
Heyburn appeared flustered, thanking jurors for remaining attentive throughout his opening.
It was unclear if the 14 jurors – six of whom are African-American – stayed tuned in to the defense attorney.
Heyburn criticized the lead detective in the case and complained prior to trial that too few blacks were in the jury pool, leading the judge to hold a closed-door hearing and issue a gag order barring the attorneys from speaking with the media.
The judge sealed the transcript of the contentious private hearing he had with the attorneys this week.
The American Civil Liberties Union of New Jersey criticized Smithson’s decision to lock out the public and the press from the courtroom without holding a hearing.
Heyburn filed an emergency motion Wednesday morning asking the court to use a recording system, rather than a court reporter, for the remainder of trial. The court reporter was absent from Thursday’s proceedings.
Heyburn was concerned the judge used the court reporter so The Trentonian couldn’t access recordings. His concerns were grounded in a spat between Smithson and the newspaper at Brown’s first trial.
Smithson blasted The Trentonian for publishing a story about a juror who overheard Heyburn talking with Brown’s family about a possible “conspiracy.”
The issue was raised at a closeddoor hearing in which Smithson also barred the public from the courtroom.
The Trentonian lawfully obtained a recording of the discussion and published the juror’s name, drawing Smithson’s ire. He slammed the newspaper in front of jurors at the end of the first trial, which ended in a hung jury.
Prior to the start of his second trial, Brown turned to the back of the courtroom and said, “I can’t get a fair shake with this judge.”
Brown’s comment haunted him later in the day.
Smithson cited a Trentonian reporter’s tweet about the comment in refusing to change Brown’s bail from $1 million cash.
“If that’s his feeling,” Smithson said, “that’s all the reason more for him to flee this courtroom and this court’s possible justice.”
Brown was upset by Smithson’s ruling over an issue raised about the past testimony of former corrections officer Kenneth Crawford, who made an anonymous call to authorities within a half-hour of the shooting outside of the bar.
Crawford is also expected to testify in this trial.
He gave a suspect description to the dispatcher and relayed what he believed he saw after being startled by the sound of gunshots while he sat inside his vehicle in the earlymorning hours
Crawford testified at the first trial last year that he misidentified Enrico Smalley Jr. as the man he believed was shooting outside the bar. He described seeing a dreadlocked man reacting to shots, though he did not see a gun in his hand because his view was obscured by a vehicle parked in front of the bar.
After reading news coverage of the murder, he realized Smalley was the victim not the shooter. Crawford read the statement he gave state police detective Joseph Itri at the first trial.
Prosecutors played a 911 tape of the anonymous phone call Crawford made to police.
On the tape, Crawford said he saw the shooter, describing him as a black man with dreadlocks, standing about 6 feet tall and weighing 180 pounds, and wearing a white T-shirt. He said the shooter and another man fled from the bar toward North Olden Avenue.
The former prison guard’s testimony appeared to contradict what he told the emergency dispatcher. He testified he did not see the shooter’s face.
Heyburn said parts of Crawford’s 911 phone call were “inaccurate” and the jury should be barred from hearing it in at the second trial.
McCauley said the former corrections officer’s phone call was allowed as an “excited utterance,” and exception to hearsay, because he was in a “state of nervousness” when he made the call.
The judge agreed. Heyburn said the judge was “setting up [the trial] for a reversal.”
The trial resumes Monday at 9 a.m.