SAPULPA — On Thursday, a judge cited evidentiary issues and the unavailability of a witness when he halted the second stand your ground hearing in a Creek County murder case where the defendant claims he killed in defense of himself and his family at a 2020 Labor Day party.
Judge Douglas W. Golden continued the hearing after certain witnesses for defendant Kenneth Ray Smith were unable to attend the hearing and Smith’s attorney raised questions about the unavailability of known potential evidence. Golden scheduled the hearing to continue at 3:30 p.m. Tuesday, Sept. 7, at the Creek County Courthouse.
Smith was arrested and charged with first degree murder in September 2020 after fatally shooting Tyris Boyd, whom Smith was evicting from his home after a weekend of confrontations involving Smith’s step-daughter. (Boyd and the woman were dating.)
Ben Fu — Smith’s attorney — initially filed a motion to dismiss the case on the basis of Oklahoma’s “stand your ground” statute. After an April 19 hearing, Creek County District Court Judge Laura Farris rejected the stand your ground claim May 13.
Thursday’s second stand your ground hearing was ordered by Golden after Fu told the judge that interviews were not conducted in a timely manner with Misty and Ben Butler, who live next to Smith and said they heard the shooting.
In her decision in Smith’s first stand your ground hearing, Farris denied the defense’s motion to dismiss because she said the victim — Boyd — “had no immediate, if any, access to a weapon” when he was shot, making “Smith’s use of force not protected or immunized by the [stand your ground] statue.” Farris set a June 14 trial date for Smith.
During a discovery conference June 8, Golden postponed the trial, granted a second “stand your ground” hearing and reduced Smith’s bond from $1 million to $50,000 because Fu claimed prosecutors violated Brady v. Maryland by meeting with the Butlers without notifying the defense.
The Butlers had met with Creek County Assistant District Attorney Steve Rouse on June 4. Misty Butler had called the Creek County Sheriff’s Office within days of the shooting — which she and her husband overheard while “trimming trees” — and had even sent her own statement to the Creek County Sheriff’s Office after not being asked for one. However, the Butler’s only received a call back from Rouse on June 3, eight months after Smith’s arrest. (Smith spent those eight months in the Creek County Jail owing to a $1 million bond amount.)
Golden granted the second stand your ground hearing based on the potential testimony that the Butlers could provide, and the judge referenced Smith’s long-term confinement when deciding to reduce bail.
Smith’s reduced $50,000 bond was posted June 9. A hearing was held June 22 to set the second “stand your ground” hearing for Aug. 19.
Confusion on discovery
Thursday’s three-hour hearing featured two breaks, one of which came shortly after Golden asked the attorneys for opening statements. Fu quickly told Golden he was unsure if Rouse (the assistant district attorney) had supplemented all evidence to discovery, whereby newfound evidence is submitted when found.
“I don’t know what I don’t have,” Fu told Golden.
Fu said Rouse had not spoken to the Creek County Sheriff’s Office about any potential newly found evidence, such as body camera footage. Fu said Creek County Sheriff’s Office deputies were wearing active body cameras at the time they interviewed Smith at the crime scene.
Pressed on the issue by Golden, Rouse did not say he had spoken to CCSO about body cameras or other evidence. Golden called for a recess, and Rouse contacted the sheriff’s office, according to Fu.
After Thursday’s hearing, Fu told NonDoc that body camera footage was provided to him during the day’s second break, around 11:30 a.m. Rouse had not inquired with the Creek County Sheriff’s Office about body camera footage until Thursday morning, according to Fu.
Fu also said Rouse had not provided summaries of his conversations with the Butlers until the night before Thursday’s hearing.
NonDoc contacted Rouse’s office seeking comment, but he did not respond prior to the publication of this story.
Questioned testimonies
Fu, Rouse and Golden each questioned five witnesses who testified Thursday.
Agent Eli Turley of the Oklahoma State Bureau of Investigation testified first, with Fu asking him about a claim that Boyd’s mother, Theresa Williams, made about the night of the shooting, which occurred in Smith’s driveway as Boyd was packing his car.
In a written transcript presented by the prosecution at a February preliminary hearing, Williams said Smith had walked around the car and shot Boyd again after he was incapacitated.
Turley said Thursday there was no evidence to support Williams’ earlier claim. OSBI agent Derek White also testified Thursday that, in her initial interview, Williams had said Smith was walking as he fired his gun but that White did not “take it as a separate event.”
Shooting an already severely injured person would not fit the requirements for the “stand your ground” statute.
Misty Butler — one of Smith’s neighbors — testified Thursday that she heard “five consecutive, back-to-back shots, a brief pause and then three (more) shots.”
Fu questioned Misty Butler’s testimony, as her initial written statement, which she sent to the Creek County Sheriff’s Office, said she heard “eight to rapid-fire 10” shots in one series.
“Right after it occurred, I wasn’t exactly sure what went on because everything was so fast,” Misty Butler said, before doubling down on hearing two separate series of shots.
Butler also testified that, following the shooting, she heard two or three vehicles leave and a woman’s voice say, “Grab that gun” or, “Get the gun.” She said she did not know who said it.
According to Fu’s June brief, which requested sanctions against Rouse, Ben Butler — who did not testify Thursday — had previously told Rouse that he believed it was Williams who he heard say, “Get the gun,” as he later heard her voice in a television interview the night of the shooting. Ben Butler had also told Rouse it was neither of his neighbors’ voices.
Tamara Wooding, Smith’s cousin, testified that Khalib Springer — a friend of Tyris Boyd — had removed guns from a black duffle bag in Theresa Williams’ vehicle and placed them in a gold Toyota Corolla, which then left the scene. Wooding said she chased after the gold car but was unsuccessful in trying to catch it. Wooding did not specify who was driving.
When Fu asked if Wooding believed Smith’s actions were necessary, Wooding said they were.
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“Yes, because [Boyd] was about to kill us,” she said.
Wooding testified she had previously seen guns in the duffle bag that had been in the trunk of the BMW where Boyd had allegedly reached. She also testified that Boyd said he was going to shoot people prior to reaching for the trunk.
Rouse asked Wooding if she ever saw a gun in Boyd’s hand during the altercation, to which she said, “No.”
Wooding also testified that she did not see the guns the night of the shooting, but she said, “I know there were guns in the bag.”
Williams, Boyd’s mother, testified in person Thursday. She said she came to Smith’s residence to help her son pack his belongings and that she was not worried about her son’s behavior, despite his alleged threats against others that day.
Williams testified that Boyd “came over to the driver’s side of the car to shield her” after he was shot by Smith and that he slumped into her lap while she was in the driver’s seat. She then testified that Smith came around to the driver’s side and shot Boyd a final time.
Fu questioned Williams about why investigators said she did not have any of her son’s blood on her body if he fell into her lap after he was shot. Williams testified that she washed herself off with saline, which she said was provided by paramedics.
