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Mistrial declared; New jury selection set to take place this week in trial of accused murderer

Posted: Sunday, September 29, 2002

A mistrial was declared Friday in the jury trial of accused murderer Billy D. Smith.

Selection of a new jury is scheduled to begin Tuesday.

Smith is on trial for the March 27, 1994, murders of Harold Enzler, 36, of Nikiski, and Nancy Bellamy, 42, of Homer. He also is charged with three counts of tampering with physical evidence, namely the two bodies and the truck in which the couple was killed. The bodies were never found.

The trial was stopped after a witness testified Thursday that he had taken a lie-detector test as part of a plea arrangement to reduce charges relating to his own involvement in the crime.

Results of polygraph tests are not admissible as evidence in Alaska courts due to the unreliability of the tests.

Defense attorney Robert Herz argued that when state witness Bruce Brown said he agreed to taking the test and was later given a deal, he "bolstered his story," leading jurors to believe what he said.

Herz said jurors believed if a person took a lie-detector test and passed, the person was a truthful person.

"The very reason we keep (polygraph test results) out of court is they are very powerful, but highly unreliable," he said.

The planned defense, according to Herz, had been to undermine the reliability of Brown's testimony, as well as the testimony of other state witnesses.

Herz told Superior Court Judge Jonathan Link on Friday morning that he and assistant district attorney John Wolfe had met after court Thursday afternoon, but did not find a legal solution to the problem.

"The only solution I can think of is a mistrial, and we start over," said Herz.

"I'm asking for a mistrial your honor," he said.

Link turned to the prosecution for its opinion, and Wolfe said he believed the court could give an instruction to the jury that the polygraph test that Brown had taken had nothing to do with the issues they must decide -- whether Smith was guilty of murder.

After some back-and-forth arguing by the attorneys, the judge asked Wolfe if Brown had been instructed not to mention the polygraph.

"He was told that we're talking about an interview with investigators, not a polygraph," Wolfe said.

The judge then said he would try to create a "curative instruction" to the jury to possibly avoid declaring a mistrial.

His clerk was asked to inform the jury, which had been waiting in the jury room for nearly an hour, that "we're going to be awhile."

For the next 35 minutes, Link typed on a laptop computer as the attorneys, the defendant and people in the gallery sat silently.

Hard copies of the judge's proposed fix were then handed to the lawyers and Wolfe quickly said, "It appears to be a good instruction."

Herz, however, criticized the proposal, adding that "the only reasonable inference is that (Brown) must have passed the polygraph test."

"By testifying he's bolstering his story by saying to get a deal he had to take a polygraph. I still object. I still request a mistrial," said Herz.

After more debate by the attorneys, Link asked to have a tape recording of Brown's testimony replayed.

On the recording, Wolfe was heard asking Brown if he had made "some sort of deal" with investigators.

"Yes," Brown said.

"If things went the way they wanted, they'd reduce the charges to two charges of tampering with physical evidence.

"I think I was to take a lie-detector test also," Brown said.

Link offered the state one more chance to convince him that a mistrial was not warranted, but Wolfe was unable to do so.

Link then called in the jury -- 2 1/2 hours after they had been scheduled to start -- and declared the mistrial, excusing the seven men and seven women. Two jurors had been serving as alternates.

The trial began with opening arguments Sept. 19, during which Wolfe told the jury Smith had confessed to shooting Enzler and Bellamy to death, dismembering their bodies and dumping them in Cook Inlet.

Herz then told jurors that Smith, who was in jail on unrelated charges in 1997, confessed to the crime, thinking by doing so he would be able to get out of jail and get a much needed heroin fix.

A parade of state witnesses then began telling of a child custody battle over then 3-year-old Francis Enzler, the son of Harold and Michelle Enzler, who were getting a divorce.

Witnesses told of lots of drinking and drug abuse at the time and testified to finding parts of Enzler's truck dumped in various locations around the Kenai Peninsula.

One witness, Dennis "Ray J" Johnson told the jury of his role in the crime, saying he had accompanied Smith to the remote North Kenai murder site the night of the shooting purportedly to back up Smith during a drug deal.

Johnson told of heavy drinking and drug abuse at the time and said he had assisted in disposing of the bodies and hiding parts of their truck in various places.

Johnson eventually served one year in jail and was placed on probation for five years after pleading guilty to his role in dismantling the Enzler truck.

Brown, who served five years for his involvement in the crime, testified he had helped Smith by cleaning the Enzler truck after the shootings and later helped dispose of the truck. Brown said he did so because Smith had threatened his life and those of his nieces and nephews.

Brown had driven Enzler and Bellamy to the site on the night they were murdered.

By the time the proceedings were stopped Friday, 10 of the state's planned 13 witnesses had testified. The estimated three-to-four week trial was wrapping up its second week.

After the mistrial ruling Friday, Brown returned to apologize to the court, saying he had stopped using drugs and alcohol and was now "working a program of rigorous honesty."

"Your apology is accepted," Link said.



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