New jury to consider double murder charges

Posted: Monday, September 30, 2002

SOLDOTNA (AP) -- A man charged with killing two people back in 1994 will see his trial start anew on Tuesday with a new jury.

Superior Court Judge Jonathan Link declared a mistrial Friday because a witness mentioned taking a lie detector test.

Billy D. Smith, 41, is accused of the murders of Harold Enzler, 36, of Nikiski, and Nancy Bellamy, 42, of Homer back on March 27, 1994.

He also is charged with three counts of tampering with physical evidence, namely the two bodies and the truck in which the couple was apparently killed. The bodies were never found.

Link's decision to halt the trial in midstream came after a witness testified Thursday that he had taken a lie-detector test as part of a plea deal.

Results of polygraph tests are not admissible as evidence in Alaska because the test are considered unreliable.

Defense attorney Robert Herz argued that when prosecution witness Bruce Brown said he agreed to take the test and was later given a deal, that bolstered his story.

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

Herz' defense strategy called for trying to undermine the reliability of Brown's testimony, and that of other prosecution witnesses.

Herz told the judge Friday morning that he and prosecutor John Wolfe had met after court Thursday afternoon, but had not found a solution to the problem.

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

Wolfe said he believed the court could give an instruction to the jury that the polygraph test had nothing to do with the issues the jurors must decide.

The judge then said he would try to create a ''curative instruction'' to the jury. Link spent 35 minutes tapping on his laptop computer in the courtroom as attorneys, the defendant and spectators waited.

The judge's proposed fix was then handed to the lawyers. The prosecutor said he was satisfied.

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

''I still object. I still request a mistrial,'' said Herz.

Link ordered a replay of the tape recording of Brown's testimony. After listening to that, Link offered the prosecutor one more chance to persuade him the trial should go on.

The judge wasn't convinced, however, and he then decided to call the mistrial. He ordered jury selection to begin on Tuesday for a new trial.

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

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