Lawyers for Kalvin Michael Smith, the Winston-Salem man convicted in the brutal beating of Silk Plant Forest employee Jill Marker, have filed a motion asking the courts to determine whether a 2009 decision by a Forsyth County superior court judge denying him a new trial should be vacated.
The motion seeks an evidentiary hearing to determine if the judgment should be vacated “on account of misconduct by state officials that undermines the integrity of that judgment and the court proceedings that led to it.”
The motion also questions whether the district attorney’s office’s use of the affidavit constituted common law attempt to obstruct justice.
Smith’s lawyers — David Pishko of Winston-Salem, along with Theresa A. Newman and Jamie T. Lau, with the Duke Law Innocence Project in Durham — contend that the Forsyth County District Attorney’s office procured a false affidavit from a former Winston-Salem police officer in an attempt to discredit Smith’s claims of innocence. The motion goes on to say that the district attorney’s office’s handling of the affidavit “appears to have been part of a systematic and premeditated effort” to violate Smith’s due process rights.
District Attorney Jim O’Neill did not return calls for this story.
Arnita Miles, who was one of the first police officers at the Silk Plant Forest store in the Silas Creek Crossing shopping center on the night of crime, swore an affidavit stating the Marker told her the person who attacked her was a “black male” in 2008 — 12 years after the crime. Miles was a military police officer with the US Army at the time she swore out the affidavit.
Miles’ assertion was significant because Smith is black. In contrast, numerous reviews of the case that have cast doubt on Smith’s conviction — including investigative reporting by the Winston-Salem Journal, a report by a local citizens panel and a review by retired Assistant FBI Director Chris Swecker — have suggested the prime suspect was Kenneth Lamoureaux, a white man who is no longer alive.
Smith’s lawyers characterize Miles information as “plainly and demonstrably false.”
Miles declined to comment for this story.
An official police complaint report filed by Miles on the night of the crime does not include any mention of Marker indicating the race or gender of her attacker. Miles’ 1995 report describes Marker as appearing to be “very incoherent,” although it indicates that Marker said she had been cut and that she was pregnant.
Miles’ assertion also departs from the official narrative supported by the NC Attorney General’s office, which is opposing a habeas corpus petition by Smith in federal court in place of the Forsyth County District Attorney’s office. In a statement of facts filed with the federal courts in March 2010 requesting that Smith’s petition be denied, the state notes that Officer Michael Poe, who had been working offduty at Toys R Us, had been the first law enforcement officer on the scene.
“Officer Poe asked Jill whether she had been shot, to which she responded that she had not,” the state’s brief reads. “He asked if she had been hit on the head, and she responded that she had. She was unresponsive to other questions he asked, like ‘who did it?’, ‘was it a male,’ and ‘were they white or black?’ Jill just kept repeating that she was pregnant.”
Smith’s motion to vacate Judge Richard Doughton’s 2009 ruling denying him a new trial, known as a motion for appropriate relief, or MAR, contends the district attorney’s office “was actively participating in the state’s preparation for the evidentiary hearing on the defendant’s second MAR.
“Defendant does not know if the office of the district attorney used the affidavit or its false contents for the hearing, including perhaps, to assure witnesses that the assailant was black and that defendant’s claim that Kenneth Lamoureaux, a white man, assaulted Ms. Marker was false,” the motion continues.
Judge Doughton’s order denying Smith a new trial, finalized in May 2009, does not mention the information in Miles’ 2008 affidavit.
Doughton systematically rejected Smith’s claims, including that the state knowingly presented false evidence, that the state violated Brady rules by failing to disclose exculpatory evidence, that the jury was allowed to hear Marker’s “highly prejudicial and unreliable testimony” considering that she had experienced significant brain damage and that Smith received ineffective assistance from his lawyer.
Supporting his claim that the state presented false evidence, Smith lawyer’s presented post-conviction testimony from Eugene Littlejohn and Pamela Moore recanting their original statements during the trial that helped implicate him in the crime.
Given Littlejohn and Moore’s conflicting statements, Doughton ruled that the two have “not testified truthfully before this court,” but also found that Smith had not shown that their “post-conviction testimony is probably true” and that their “trial testimony was false.”
“Even if this court found that Mr. Littlejohn testified falsely, it would not have made a difference in this case, based on the other believable evidence offered at trial, sufficient to establish defendant’s guilt.”
Doughton cited testimony at the evidentiary hearing by Lonnie Maines, a former Winston-Salem police officer who is chief of police for Lankford Protective Services, stating that Marker positively identified Smith from a photo lineup in 1997, as supporting the conviction.
Contrary to Smith’s claim that the state shared a video of an earlier photographic lineup meant for the purpose of allowing Marker to identify her assailant to his lawyer that was partially erased, Doughton found that defense lawyer William Speaks viewed the entire video and that it was of little or no use to Smith because Marker was in such poor physical condition that she could not tell what was being shown to her.
Whether or not the Miles affidavit was used in the evidentiary hearing, the district attorney’s office has cited it several times over the past five years to cast doubt on Smith’s claims of innocence, according to a series of e-mails filed with the court by Smith’s lawyers.
“It has also become clear that Jill Marker has consistently identified her assailant as a black male, which tends to make Ken. Lam. an unlikely suspect,” Assistant District David Hall wrote to Pishko in March 2008. “Most recently, witness Arnita Miles contacted Theresa Newman to convey information Miles had about the case.
“Jill told Arnita that she was pregnant, and thought she was dying,” Hall continued. “Jill wanted Arnita to write Aaron Marker and tell him she loved him and to take care of their baby. Jill also told Arnita that she did not know her attacker, but that her attacker was a black male.”
The motion also contends that District Attorney Tom Keith, O’Neill’s predecessor, attempted to point the Silk Plant Forest Citizens Review Committee towards Miles’ information, quoting from a letter that reads: “… no effort has been made (at least from the materials produced to the state) [by] the committee… to interview former Detective Arnita Miles. While the strictures of Ethical Rules 3.6 and 3.8 prohibit me from disclosing the import of her information in this letter, both Lt. Ferrelli and Sgt. Byrom know the significance of her observations.”
Smith’s lawyers contend that the committee had already interviewed Miles and found her claims to be groundless, adding that Miles “recanted her false claim when WSPD officers assisting the committee confronted her with her December 1995 report.”
The Silk Plant Forest Citizens Review Committee found in July 2009 that it “does not have confidence in the [police] investigation, the information in question, or the result of the investigation” “The use of the Arnita Miles affidavit to influence or attempt to influence the committee’s investigation may have constituted common law attempt to obstruct justice,” the motion by Smith’s lawyers states.
The State Bureau of Investigation investigated the case in response to a request by District Attorney Tom Keith in December 2007.
Assistant Special Agent in Charge MS Williams interviewed Miles over the phone in January 2008 as part of the investigation. According to an SBI report memorializing the interview, Miles told Williams “she was 100 percent sure Marker told her the assailant was a black male.”
Williams wrote that Miles responded with surprise when he confronted her with the fact that this detail was not in her initial report filed in December 1995.
“That was a pretty important detail,” Miles reportedly said.
The district attorney’s office cited the Miles affidavit again in July 2012, following a review by retired Assistant FBI Director Chris Swecker characterizing the original investigation conducted by Detective DR Williams as “seriously flawed and woefully incomplete, thus calling into question whether the original jury rendered their verdict based on all the relevant and accurate facts of the case.”
District Attorney Jim O’Neill wrote lawyer Mark Rabil, who has been involved in efforts to obtain a new trial for Smith, in an e-mail copied to Swecker: “I consider you a friend, but unfortunately, it’s the continued misinformation perpetuated by the KMS camp, like that shared below, that leads people like Chris Swecker down a path where he can come to only one conclusion as to the guilt or innocence of the defendant.
“I am holding in my hand a sworn affidavit by Arnita Miles, who was one of the first officers at the scene and the person who spoke to Jill while she lay on the floor of Silk Plant Forest, awaiting EMS,” O’Neill continued. “In that sworn affidavit, Arnita says that Jill told her she was pregnant, and that she did not know her attacker and that her attacker was a black man.”
O’Neill added, “Despite this evidence, the Duke Innocence Project continued to parade the name of Kenneth Lamoureaux as the person who likely committed this crime, knowing full well that Jill Marker said her attacker was a black man.”
“Disappointing,” the district attorney concluded.
Smith’s lawyers report that the Miles affidavit was formally made part of the record in the state’s case when the district attorney’s office “allegedly” filed it mistakenly on Aug. 12, 2012, and that shortly afterwards O’Neill asked the court to remove it in response to protests by the defense. The court, however, turned down a request by Smith to ask the NC Attorney General’s office to investigate. The attorney general is currently opposing Smith’s petition for habeas corpus seeking to vacate his conviction in federal court.
Over the past three years, new evidence has surfaced pointing to Lamoureaux as the likely assailant.
Jeana Schopfer, an Efland resident, wrote in an affidavit in February 2010 that she worked with Marker at Today’s Child, a daycare center connected with Forsyth Medical Center, in 1995. She said that Lamoureaux would drop off his children and try to talk with Marker.
“The general consensus of the employees of Today’s Child, including Jill and me, was that Mr. Lamoureaux was creepy and mean,” Schopfer wrote. “We often called security upon his arrival at the daycare center.”
Schopfer said that Lamoureaux’s flirtation comments to Marker made Marker anxious and uncomfortable and that he had an “explosive temper.”
At a certain point Marker stopped working at the daycare, and took a job at Silk Plant Forest.
“On the evening of December 9, 1995, Jill called me from the Silk Plant Forest store and told me that Mr. Lamoreaux had come into the store that evening and asked her to have dinner with him after she finished work,” Schopfer wrote. “Jill rejected his invitation, and Mr. Lamoureux became angry and stormed out of the store. Jill sounded very upset and anxious. Jill told me that although business had been slow that day, she was not alone at the time of our conversation; she said there were customers in the store.”
Schopfer said she learned the next day that Marker had been attacked, and called the police to urge them to investigate Lamoureaux.
The call was taken by Officer Arnita Miles, and duly noted in one of her official reports.