Defense attorney for murder suspect says Mercer County prosecutors are withholding evidence of his client’s innocence
“They turned over the discovery, but they didn’t turn over any of the videotapes,” Brown’s defense attorney Edward Heyburn said. “I have a good faith belief that the videotape is going to show the shooter, and it’s going to show that it was somebody other than my client.”
Mercer County Assistant Prosecutor Brian McCauley said he has no evidence suggesting that someone other than Brown pulled the trigger. He also said he plans to turn over the surveillance tapes before the next court date which is scheduled for January.
“Discovery is an ongoing process,” McCauley said. “We’ve turned over everything we have so far.”
But the argument between the two attorneys does not end there. Heyburn says he’s spoken with witnesses who claim that law enforcement showed them pictures of a suspect in Smalley’s murder who is not Brown. But McCauley says that if Heyburn has spoken to those witnesses, he is the one withholding information.
Around 1:20 a.m. on July 12, police found Smalley lying on the sidewalk in front of La Guira Bar at the corner of Poplar Street and North Clinton Avenue. Smalley suffered multiple gunshot wounds, including one to the head, and was pronounced dead at the hospital.
Prosecutors later charged 30-year-old Shaheed Brown in connection with Smalley’s death. Brown was arrested in Newark about a month after the murder for allegedly shooting an unnamed Trenton resident in the face during a carjacking. Those charges were dropped, though, because the victim decided not to file a complaint. After Brown was arrested in Newark, he was transported to Trenton to face charges alleging that he killed Smalley.
At a bail hearing in August, prosecutors said they “pieced together” surveillance footage from multiple video cameras, and that the sequence of events leading up to Smalley’s murder are “quite chilling.”
According to prosecutors in the case, video footage shows Brown “lurking” outside of La Guira Bar minutes before the shooting. Prosecutors say Smalley was inside the bar at the time, and that Brown asked him to step outside after grabbing his attention from a section of the bar’s entrance located in front of the metal detector. Brown and Smalley then walked to the corner of the building and out of the surveillance camera’s view, McCauley said, and moments later, gunshots rang out.
Heyburn says that Smalley initiated contact with his client, and that they were simply having a conversation at the time of the shooting. The purpose of the conversation, Heyburn says, was to clear the air of any misunderstanding about an attempt on Brown’s life that occurred at the bar one week prior to Smalley’s murder.
“Prosecutors handed me three discovery photos that show (Brown) talking with Enrico Smalley,” Heyburn said. “There’s no confrontation; they’re not fighting, they’re not even arguing. They’re just having a conversation. I think (prosecutors) arrested my guy because he was talking to the victim. I think they thought (Brown) saw the shooter because he was standing there talking to him when the shots went off.”
Heyburn says he’s had several conversations with witnesses who said that police showed them a picture from that morning of a guy with a gun outside of the bar. But McCauley said he has no knowledge of that picture.
“I don’t know what picture he’s talking about,” McCauley said. “We took (still photographs), but you actually can’t see a guy with a gun. We see a guy with something in his hand that we believe is a gun, which is by the way his client.”
According to witness statements obtained by The Trentonian, about a week before Smalley’s murder, someone tried to rob Brown. A witness said to police: “He told me that he was being shot at and someone tried to kill him.” The witness did not mention where the incident took place, but Heyburn said it happened at La Guira Bar, where Smalley was killed. Brown then returned to the bar a week later, and according to Heyburn, Smalley initiated contact with Brown from inside the bar and asked to speak outside.
“It sounds like Smalley wanted to squash any beef between them and distance himself from the previous shooting attempt,” Heyburn said in August. “My client didn’t perceive a problem with the meeting because Smalley asked to see him, and he didn’t think Smalley was involved in the attempted shooting. My client was not trying to avoid detection, he was well aware of the video cameras because he had been there before.”
Another witness told police that he was in his car across the street from the bar when he heard several gunshots. He said he looked toward the direction of the sound and saw a black male standing alongside the passenger side of a Lincoln Navigator that was parked in front of the bar. The witness said he only saw the man from the chest up because the rest of his body was shielded by the SUV. The witness said the man had dreadlocks and made a “jerking movement” each time there was a gunshot, but that he never saw a gun.
That witness also told police that he later saw Smalley’s picture in the newspaper and “thought it was the shooter because it looked like the guy I saw doing the shooting.”
Heyburn believes that witness actually saw Smalley being shot, and not the shooter.
“It doesn’t make sense because the shooter would’ve had to lift up his hands; it wasn’t a shooting where his hands could’ve been below his waist,” Heyburn said. “He saw the body being jerked and thinks he’s the shooter, but it’s actually Smalley being shot. The body was being jerked because it was being hit with bullets.”
According to the outlined Q & A of that witness, police did not show him a photograph to confirm which person he saw making jerking movements. But detectives did show photographs to other witnesses interviewed in connection with the murder.
“I can’t figure out why they wouldn’t show him the pictures when they showed them to all of the other witnesses,” Heyburn said.
McCauley said they don’t show suspect photographs to all witnesses.
“I don’t know what Heyburn is trying to say,” McCauley said. “If someone says they don’t think they can identify a suspect through pictures, we’re not going to show them pictures.”
Brown was indicted in connection with Smalley’s death in the first week of November. Heyburn says he still has not received all of the discovery documents related to the case. According to Rule 3:13, which governs depositions and discovery in New Jersey courts, the prosecutor’s discovery for each defendant named in the indictment shall be delivered “within seven days of the return or unsealing of the indictment.”
Earlier this week, Heyburn sent a letter to Mercer County Prosecutor Joseph Bocchini stating that McCauley has “refused to provide all witness statements as well as a photograph of the actual shooter.” In a letter to McCauley, Heyburn requested all surveillance videos, crime scene pictures, recorded witness statements, ballistics reports, autopsy photographs and a lot of other items that he says should be available, but has not been provided. Heyburn filed a Motion to Compel Discovery on Thursday.
“If there’s evidence, all of it has to be turned over,” Heyburn said. “We can’t hold things. I’ve been fighting for the videos since August. I have a good faith belief that the Mercer County Prosecutor’s Office is withholding exculpatory evidence.”
McCauley said he plans to turn over the videotapes soon.
“We are going to turn over the videotapes,” McCauley said. “We understand that discovery is a continuing process and as we get it, we’ll turn it over. Mr. Heyburn has a lot to say, and I look forward to having him say that in front of a jury because I’m going to ask for the earliest possible trial date in this matter.”