Tuscaloosa County Judge Denies Motion To Dismiss Indictment In 2019 Fatal Shooting

TUSCALOOSA, AL — Tuscaloosa County Circuit Court Judge Al May has denied a motion for dismissal regarding lost or destroyed evidence in the case of a fatal shooting in 2019 that left one man dead.

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As Patch previously reported, 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 allegedly 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.

A hearing was held Friday morning, where three factors were considered following the defense's request for dismissal of the indictment against Smith. Among these were the culpability of the government in the loss of evidence; the importance of the lost evidence; and the prejudice to the defendant from the loss of evidence.

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 the previous motion for dismissal filed in Tuscaloosa County Circuit Court, 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, defense attorneys for Smith met McKee at the impound lot, where they were 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 would 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, defense attorneys say 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.

Ultimately, the court did not find bad faith on the part of the state in the loss of the vehicle and ruled that any culpability most likely amounts to inadvertence.

What's more, the court ruled it "highly material" in that the charge against Smith is made capital due to him allegedly shooting from a vehicle — the lost vehicle.

As to the third factor, the Court found the loss and its resulting prevention of testing by defense to be prejudicial and prejudice that would be magnified if the Court admits the state's testimony regarding the lost evidence or test results derived there.

In short, the court ruled that there was no due process violation and denied the defense's motion to dismiss the indictment.

The order from Judge May went on to say that the court finds that the admission of any evidence derived from testing by the state, that is unfavorable to the defense, from materials now lost and not available to the defense for their own testing, would violate defendant's due process rights and is due to be suppressed.

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