Day Three Ends With a Whimper
All of Smith's motions were denied by Judge Barry Dozor.
With the prosecution resting its case, Smith said he would be presenting three character witness tomorrow and one subpoenaed material witness. Whether that witness will be allowed to testify remains unclear. Dozor cited questions of whether testimony from the witness (whom he referred to as "she") might be considered "prejudicial."
The prosecution's final witness before resting was State Police Detective Joe McCunney, who served as the lead investigator in the case.
McCunney spent a significant amount of his time on the stand reading various statements given investigators by Fen Bruce Covington, the one other man known to have been at Smithson's house the night Jason Shephard was killed.
According to McCunney, investigators came across Covington's number in Smithson's cell phone. When he was called by the police he said he was aware that Smithson had been arrested and voluntarily agreed to come in for an interview.
According to the statement read by Det. McCunney:
On the night that Jason Shephard was killed, Covington said he talked to Smithson about getting a "group" together for sex at his house. He was invited over and said he arrived at around 9:30 p.m. According to the statement, he and Smithson went down to the basement and watched some gay porn. During that time Smithson told him about an intern at his company that he found attractive. Covington said Smithson also mentioned a fantasy about having sex with straight men and younger men.
He said Smithson went out and that he fell asleep in the basement. He claimed to have left the house sometime that night. He refused to admit to any drug use himself.
In a second interview, Covington was slightly more forthcoming. He told police that he first met Smithson about a year earlier at a party. Smithson introduced himself as "Eric." They subsequently got together 8 to 10 times at Smithson's house. He mentioned one night when he had sex with both Smithson and Smithson's then live-in boyfriend, Daniel Hall. He said they all used Crystal Meth and GHB to enhance the experience.
When asked who typically brought the drugs, Covington said he "I prefer not to answer that question.
Again he was asked about the night of Jason Shephard's murder. Covington said he arrived around 9:30 and he and Smithson watched a gay porn movie together. He said Smithson mentioned an intern who he found attractive and talked a lot to about sex. He (Smithson) thought he (Shephard) might be interested. He said Smithson left the house and he (Covington) fell asleep, woke up and left the house between 11:30 and midnight.
Asked about whether Smithson might have talked about a "body" being in the house or a "killing" Covington answered "No. Heavens, no." He said that he'd seen Smithson having sex and said he was "aggressive, yes but violent, no."
Lawrie then asked McCunney about a third attempted interview with Covington after the DAs office received information from Defense Attorney Smith that Covington "wasn't being completely honest" about that night.
Accompanied by his attorney Steve Leach, Covington came for an interview. Declining to speak to investigators directly Covington changed his story. He said that he didn't leave the Smithson home that night after he arrived. He said after he went to sleep he founds himself locked in the basement. He had to urinate so he did so in a cup. He didn't get out of the basement until Smithson let him out the next morning.
He said he never saw or met Jason Shephard that night.
On cross examination, Guy Smith brought up Covington's phone records. All the calls between Smithson and Covington that night were initiated by Covington. The calls suggested that Covington didn't get to Smithson's home before 10:35 p.m. that night.
Smith suggested that police hadn't questioned Covington vigorously enough seeing as how "he lied that night" about how long he stayed at Smithson's house. By his own later admission Covington was most likely in the house when Shephard was killed.
Smith asked McCunney if he ever found a cup with urine in it or took pictures of a such a cup when the house was searched three days later. McCunney said while cup and glasses were found in the basement none had anything that appeared to be urine in them.
Also Smith asked McCunney to read off the three movies Shephard apparently rented in his hotel room that night before going out with Smithson. They included a video called "Bisexual Orgy," which was viewed for 22 minutes, "The Works" for 2 minutes and the "Nacho Libre," a Jack Black comedy for One hour and 36 minutes.
On redirect, Lawrie asked McCunney Covington's profession. After a bit of confusion, McCunney replied, "He's a lawyer."
Earlier in the day, outside the presence of the jury, Covington was subpoenaed to the witness stand by Smith where he took the 5th concerning any questions about the night Shephard was killed.
Previously he made several incriminating statements involving the taking, giving and injecting of drugs. He has been charged, thanks to his changing stories, with making false statements to police and drug charges.
By tomorrow afternoon, the case should be in the jury's hands. It appears Smithson will not be taking the stand in his own defense.