Schenectady murder suspect goes on trial

PHOTOGRAPHER: Steven Cook

Already shot once, Michael DeVeaux Jr. struggled for life as those he was with tried to get him into a car and to a hospital.

Murder defendent called as potential juror for own trial

Derrick C. Smith might very well have been seated on the jury hearing the case involving the killing of a man outside a Crane Street bar last year if it weren’t for the fact that Smith is the man on trial for the killing.

Jury selection in Smith’s murder trial began last week and concluded Monday. The Schenectady County Court jury will decide whether Smith was the one who essentially executed Michael L. DeVeaux Jr. outside the El Dorado Bar in June 2010.

That jury was selected over at least two days from a pool of prospective jurors called in at random. Among those citizens notified to come in was Smith, his attorney, Mark Gaylord, confirmed Tuesday.

The topic was discussed briefly during a break in a morning hearing in the murder case. At issue in the hearing were accusations from prosecutors that Smith deliberately passed a threat to an important witness in the case.

That alleged threat, prosecutors contended at the hearing, resulted in the witness fearing for her life and fleeing so prosecutors couldn’t make her testify.

During a break in the hearing, acting Schenectady County Court Judge Richard Giardino joked that Smith assured the court that he would be impartial. Smith, at the defense table, appeared to agree with that assessment.

While Smith obviously wouldn’t be eligible to serve on his own case, a state court official confirmed Tuesday that someone charged, but not convicted, of a felony is technically eligible to be a juror in other cases. Whether they would be picked would be another issue.

And those incarcerated would have an added obstacle to overcome, actually getting to court for jury selection, the official noted.

Back on the record, and at the conclusion of the morning’s hearing, Giardino issued a ruling that essentially found Smith was far from any semblance of impartial, even as defendants go. The judge found that Smith helped engineer the threat to the witness, causing her to flee in fear of her life.

Because she couldn’t be found to testify because of Smith’s actions, the judge ruled, prosecutors could have the witness’ testimony to the grand jury read into the record to the jury.

Because the testimony will come from the grand jury transcript, the defense will have no opportunity at cross-examination.

The original shooter had already fled on foot. DeVeaux, before falling to the pavement, even got off five shots from his own gun, only pulling the gun after he’d been shot. As he fell, the gun fell away, too.

Then came a second shooter, whom prosecutors say was 26-year-old Derrick C. Smith, formerly of Albany Street. Smith, prosecutor Peter Willis told a Schenectady County Court jury Tuesday afternoon, approached the group, then fired twice into the chest of DeVeaux as he lay on the ground, killing him.

“There can be no more deliberate and intentional act than shooting a dying man twice, ending any chance of survival, as he’s helpless, unarmed, lying bleeding on a city street,” Willis told the jury. “He intended to kill Michael DeVeaux, and he did that.”

Smith faces one count of second-degree murder, along with weapons charges, in connection with DeVeaux’s death on June 27, 2010, outside the El Dorado Bar on Crane Street.

Smith’s attorney, Mark Gaylord, declined to make an opening statement.

‘Wanted to kill’

DeVeaux, friends and relatives were at the bar that night celebrating a recent graduation. Smith and the alleged initial shooter, Charles B. Louvierre, encountered them at the bar, Willis told the jury. Both “wanted to kill Michael DeVeaux,” Willis told the jury, though he did not address why they allegedly wanted him dead.

Willis said it was Louvierre who engineered an encounter with DeVeaux, bumping into him and getting into a brief argument. Louvierre then pulled a gun and shot DeVeaux, Willis said.

DeVeaux held out his hand in a futile attempt to try to stop the .22-caliber bullet, Willis said, and then Smith came in and finished the job.

There were several witnesses on the street that night. The jury is to hear from one of them without defense cross-examination.

In a ruling after a morning hearing, acting Schenectady County Court Judge Richard Giardino ruled a witness’ grand jury testimony can be read to the jury, even though she won’t be available to testify at the trial. The defense will have no opportunity to confront her.

Giardino found that Smith, from jail, passed a threat to the witness through his girlfriend, and that threat caused the witness to flee the area to avoid testifying at trial. The witness, though, had testified before a grand jury.

Defendants generally must be allowed to cross-examine witnesses at trial, except in a situation where their own actions result in the witness being unavailable.

The witness knew and directly identified Smith as the second shooter, the prosecution said. She did not know Louvierre, but could point him out in surveillance footage from the bar, prosecutors said during the morning hearing.

Prosecutors alleged she was cooperative until last month, after an encounter with Smith’s girlfriend. It was an encounter prosecutors said was prompted by Smith.

The ruling had one other important impact: Louvierre was to be tried along with Smith, but because there was no indication Louvierre was involved in threatening the witness, her testimony cannot be used against him.

Because of that, Louvierre’s attorney, Fred Rench, asked for Louvierre’s case to be tried separately. Giardino granted that request, and Louvierre will be tried later.