Tuscaloosa Attorney Asks For Dismissal In 2019 Killing, Citing Mishandled Evidence

TUSCALOOSA, AL — The defense attorney for a Tuscaloosa man accused of capital murder in a fatal shooting in 2019 is requesting the indictment be dismissed due to lost or destroyed evidence.

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Calvin Eugene Smith was arrested after the shooting death of Cory Mitchell around 11 p.m. on June 27, 2019. Mitchell was gunned down in the front yard of his home on Clearview Street during what investigators believed was a suspected drug deal.

During the shooting, Smith was sitting in the back seat of an SUV, with his friend Bernest Brown in the front passenger seat and Brown's girlfriend, Sheana Gibson, driving.

Brown was reportedly meeting Mitchell for a drug deal when the shots rang out.

Smith was ultimately indicted on the capital murder charge in August 2019 after a search warrant was conducted the previous month on the 2014 Chevrolet Equinox belonging to Gibson.

According to a motion filed in Tuscaloosa County Circuit Court Tuesday, the vehicle was taken to the Tuscaloosa Police Department's impound lot and allegedly had a "do not release" order placed on it to ensure it stayed at the lot.

Defense attorneys Stuart Albea and Jaime Conger, who are representing Smith, said that on or about March 21 of this year, he emailed Chief Assistant District Attorney Paula Whitley regarding discovery evidence and requested to view the vehicle.

Court documents obtained by Patch claim that Whitley replied via e-mail, where she said she was certain the vehicle was still at the TPD impound lot.

What's more, on March 30, Whitley emailed Smith's attorneys, saying the DA's office would schedule a time for Albea to look at the vehicle the week of April 17. The delay, she said, was due to her starting an unrelated trial.

Then, on April 12, Assistant District Attorney Ben McGough emailed Smith's defense team and said he realized that the state had failed to provide crime scene pictures in discovery.

The following day, crime scene pictures were reportedly provided in PDF form, before digital copies were later provided on April 27. And it was on this date that Smith's attorneys and Tuscaloosa Violent Crimes Unit Investigator Jason McKee agreed on a time for the parties to view the vehicle at the impound lot.

Court records show that on May 1, Albea met McKee at the impound lot, where the defense attorney was notified that the state "failed to preserve and keep the subject vehicle in this matter, and the defense is now unable to independently investigate the vehicle that the Defendant is charged with shooting from."

Smith's attorneys then cited a specific statute relating to the loss or destruction of discovery evidence that says the circuit court judge presiding over the case has the right to dismiss the indictment if it is proven that the government’s wrongful conduct resulted in mishandled evidence.

The defense also argues that a due process violation will be shown once the evidence is presented, especially considering the new photographs provided by the state in the last month. In addition to the photos, Albea says exhibits and items that were not listed in the initial discovery provided by the state were not shown to the defense during an examination of all physical evidence performed in the District Attorney’s Office on April 21.

This evidence included, but was not limited to, ammunition and what appeared to be fingerprint and gunpowder residue testing.

"Given that two other individuals were alleged to be in the subject vehicle at the time of the shooting but were not charged by the state, the nature of the evidence is certainly material and possibly exculpatory in nature, and these actions by the state are highly prejudicial," Albea said in the latest filing.

After laying out the arguments for the defense, Albea requested the court set a hearing for dismissal of the indictment against Smith.

A date for the hearing was set for Friday, May 19 at 11 a.m.

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