A Creek County man charged with murder was released today on a reduced $50,000 bond following a discovery conference Tuesday in which his defense attorney claimed prosecutors violated Brady v. Maryland by meeting with a key witness and not providing required notice.
Creek County District Judge Douglas W. Golden reduced Kenneth Ray Smith‘s bond from $1 million to $50,000, postponed a June 14 trial date and granted a second stand your ground hearing based on the potential testimony of Smith’s next-door neighbors, who were first interviewed by law enforcement June 4, nine months after Smith fatally shot Tyris Boyd.
Smith, who has maintained that Boyd threatened others with a gun and was reaching into the trunk of his mother’s car for a firearm at the time of the shooting, has been in the Creek County Jail since September owing to the $1 million bond. Golden referenced the nine-month confinement when deciding to reduce the bail.
Smith’s defense attorney, Ben Fu, filed a request for a hearing and a motion for sanctions against Creek County Assistant District Attorney Steve Rouse on Monday, June 7, alleging that Rouse had an obligation to alert him immediately about the existence of a new witness who could offer potentially exculpatory evidence.
The new witness — Ben Butler — and his wife met June 4 with Rouse. Butler’s wife, Misty, had called the Creek County Sheriff’s Office within days of the shooting but only received a call back from Rouse on June 3, according to the brief filed by Fu.
On June 4, Misty and Ben Butler met with Rouse and a victim witness coordinator at the prosecutor’s office in Sapulpa to give their statements. Fu’s brief states that Misty Butler told Rouse she and her husband were outside “trimming trees less than 100 feet away” from Smith when he shot Boyd.
Although the Butlers could not see what happened, they claimed they heard a woman’s voice yell, “Get the gun! Get the gun!” before “a commotion and a car driving away.”
Misty Butler told Rouse that she and her husband had seen Boyd’s mother, Theresa Williams, conduct an interview on TV the day after the shooting. The Butlers believed her voice matched the one they heard the night before, according to Fu’s brief, which emphasized that “Williams is the only witness who denies seeing Boyd with a gun.”
According to Fu’s brief, Rouse asked Ben Butler, “Would it be accurate to say [the voice] wasn’t the lady who lives there?” Butler told Rouse it was neither of his neighbors’ voices, and that he believed it was the woman who spoke on the news that evening.
NonDoc reached out to Creek County District Attorney Max Cook on Tuesday for a statement about the case, but Cook did not reply prior to the publication of this story.
Judge tries to avoid ‘automatic appeal grounds’
Owing to the revelation of Ben Butler as a new witness, Judge Douglas Golden ordered a new “stand your ground” hearing in Smith’s case, which will be scheduled after a subsequent hearing June 22.
On April 19, Judge Laura Farris ruled against Smith in the original stand your ground hearing, citing a lack of evidence that Boyd had a gun at the time he was shot, despite witnesses testifying for Smith that Boyd had placed a duffle bag containing guns into his mother’s car trunk shortly prior.
On Tuesday, Golden did not point fingers at either Fu or Rouse about evidentiary obligations, but he expressed concern regarding the state of the trial, which was initially scheduled to begin Monday, June 14.
“I don’t know whose fault it is exactly at this point, but what’s obvious to me is that if I try this case on Monday, in its current posture, I’m going to have some automatic appeal grounds, and I don’t want to do that,” said Golden, who will preside over the second stand your ground hearing.
In Fu’s argument, he wrote that the new witness testimony builds upon Smith’s contention that Boyd was an armed threat to his family at the time of the shooting. Fu referenced Jasalynn Snell, who is Smith’s adult step-daughter and was Boyd’s girlfriend of the time, and Kalib Springer, Boyd’s friend who left the scene prior to law enforcement arriving:
Most significantly, Williams is the only witness who denies seeing Boyd with a gun, despite the fact that: (1) multiple witnesses had seen him with a firearm that day; (2) Jasalynn Snell testified that Boyd had a .40 cal Springfield XDM handgun; (3) numerous witnesses testified to seeing Boyd place a bag of guns into the trunk of a white BMW; (4) numerous witnesses testified that Boyd was reaching for the trunk immediately after exclaiming that he would shoot Defendant and others; (5) multiple witnesses testified that Kalib Springer removed some items from Boyd’s person; (6) Boyd’s pocket was observed to be turned out as though an item had been removed; (7) upon arrival at the scene, agents with the OSBI observed a 250 count box of live Magtech brand .40 caliber cartridges inside the trunk of the BMW; and (8) OSBI agents also observed a duffel bag between the BMW and a nearby car containing a Bowie knife, a machete, and one empty Pro Mag brand twenty six round .40 cal magazine for a Springfield XDM handgun.
Fu also wrote that the Butlers told Rouse that, at the time, they felt Williams’ TV interview featured “inconsistencies.” Fu criticized Rouse for not showing the Butlers the news interview to refresh their memories.
Misty Butler eventually told Rouse that Smith and his wife were “good people” and that Smith was defending himself that day, according to Fu.
Rouse: ‘That’s not evidence’
Fu’s motion seeking a new hearing and sanctions against Rouse was filed Monday, June 7.
According to Fu’s brief, Misty Butler told Rouse that she had spoken with the defense, while Ben Butler said he had not. Neither Butler appears on the discovery documents provided by the Creek County District Attorney’s Office, where newfound evidence is submitted. Misty Butler’s 911 call after Smith’s arrest has not been provided to the defense, Fu wrote.
At the discovery hearing Tuesday, Fu argued that the evidence he claims was withheld from the defense by prosecutors is exculpatory, meaning Rouse violated Brady v. Maryland.
Rouse said he did not see the Butlers’ statements as exculpatory — meaning he did not believe the statements cleared Smith of guilt or blame — despite his argument for the first “stand your ground” hearing. In his brief for that hearing, Rouse wrote that, “No one could say the victim had a gun when the defendant shot him.”
The Butlers’ 911 call was not recorded at the time it was made, Rouse said Tuesday.
“Your honor, to suggest this isn’t exculpatory, I can’t get there,” Fu said to Golden.
Rouse believed the Butlers’ statements were not exculpatory because they could not be certain who it was they heard, and that the Butlers only “concluded or surmised that it was Mrs. Williams.”
“That’s not evidence,” Rouse asserted.
Rouse then told the judge that Misty Butler has had “several discussions” with Smith’s wife and that “much of [Misty Butler’s] testimony seems to be based on conversation she had with [Smith’s] wife.”
Rouse also maintained that he was told Misty Butler had spoken with the defense, and so he did not feel he needed to inform the defense of her statements, according to Fu’s brief.
Rouse claimed that Misty Butler told him that she had been in contact with Fu and his office “some time ago,” he said. “I took it to be shortly after the Labor Day shooting.”
Fu told NonDoc on June 8 that the first time he had heard from Misty Butler was June 4, “to the best of my recollection.”
According to Fu’s brief, Fu texted Rouse the night of June 4 after hearing from the Butlers, saying, “You got any discovery you may want to have disclosed before our discovery cutoff?”
Rouse and Fu then spoke on the phone. Fu wrote that Rouse claimed that the discovery was complete and there were no additional witnesses.
According to Fu’s brief, at the end of their conversation, Fu told Rouse, “Let me know if anyone steps off the grassy knoll to tell you that my client is not guilty,” to which Rouse mentioned the Butlers to Fu for the first time.
Brady v. Maryland states that, “Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Rouse argued that his actions did not meet the requirements for a Brady violation, as he communicated to Fu his conversation with the Butlers in a timely manner.
Fu argued that there are still obligations under Brady related to the Butlers that Rouse has not met.
“He has still not turned over any supplement or summary of what [the Butlers] said to him, which is required under Brady,” Fu said.
Fu also said he has not received the body camera footage from Smith’s arrest.
“[The Creek County Sherrif’s Office notes] that they spoke with my client and their body cameras were on,” Fu said to the judge Tuesday. “Those are in their reports.”