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Smith jury deliberations pass 7-hour mark at Terre Haute
UPDATE: T.J. Smith case has gone to the jury after federal prosecutor calls defendant "a thug with a badge" in closing arguments.
Deliberations went past the seven-hour mark before 7 p.m. as jurors ordered out for dinner without yet reaching a verdict in the four-day trial.
TERRE HAUTE -- The jury heard a final day of testimony Wednesday the trial of Putnam County Sheriff's Department (PCSD) Deputy Terry "TJ" Smith.
Smith, 37, Greencastle, is being charged with four counts of deprivation of civil rights under color of law in the federal case that is expected to be handed over to the jury for deliberation Thursday.
In the morning court session, Mike Bain was called to the witness stand regarding the incidents that took place at the Cloverdale Truck Stop on Dec. 28, 2013.
Bain was on-shift as cook at the truck stop at the time and testified that he was working shortly after 3 a.m. when Amber Stwalley entered the restaurant and began verbally abusing a patron.
Stwalley, then a waitress at the truck stop, had arrived over an hour early for her shift, intoxicated from alcohol, to confront a woman she knew to be at the diner, Paice Neimeyer.
Bain said he tried to calm the agitated Stwalley in the kitchen of the truck stop, out of sight from patrons, which included a table of law enforcement officers.
At that table was Smith, along with PCSD Deputy Phillip Troyer and Reserve Deputy Andrew "Mo" Fenwick as well as Tony Keith, who works with Van Bibber Lake Security, Putnamville Corrections and at the time of incident was also a special deputy with PCSD.
Bain stated that he had attempted to calm Stwalley by taking her back into the kitchen several times, with Stwalley returning to the dining area multiple times to harass the table at which Neimeyer was sitting with two friends.
According to testimony later given by Keith, Smith had told Fenwick to find a sober driver to give her a ride home after several bouts of harassment made by Stwalley at Neimeyer's table.
Bain testified that while Stwalley had been taken to the kitchen to be calmed, Fenwick came into the kitchen to assist and was more than professional in handling the obviously agitated woman.
Bain also testified that despite Smith being involved with a prior burglary case that Bain had been charged in, he and Smith had no ill will between one another.
Testifying that Smith was "aggressively leaning in, intimidating her (Stwalley)" just inches from her face, Bain said he called her a "scumbag" and worse. According to Bain, she "reacted in anger" to Smith's comments at which point the deputy forcibly restrained her to the ground and assumed a "mounting" position.
Bain said his point of view was partially obstructed and was unable to confirm or deny having seen Smith choke Stwalley as prior testimony from Troyer had suggested.
The woman had not been physical in any way prior to Smith pinning her to the ground, Bain told the court.
In opposition to prior testimony, Bain also said he did not believe that Deputy Fenwick was in the process of arresting Stwalley.
He also denied seeing a second officer attempting to help Fenwick prior to Smith's involvement.
After Bain's testimony, the U.S. District Attorney's Office rested its case.
Shortly after 10 a.m., defense attorney John L. Tompkins called Putnam County Sheriff Steve Fenwick to the stand.
Regarding his involvement with the Sept. 7, 2012 incident involving Cletis Warren, wherein Smith is charged with unnecessarily punching Warren, Sheriff Fenwick testified he arrived about 10 minutes after "everything had happened" in the pursuit and that Warren was already in handcuffs when he had arrived.
The sheriff further testified that in ascertaining what had happened, PCSD Sgt. Jon Chadd told him Warren had hit his head on the truck during the apprehension, but that Smith spoke up immediately.
Sheriff Fenwick testified Wednesday in court that Smith said, "Hell no he didn't, I hit him in the head."
The sheriff denied the implication that he had told officers to falsify information on any report related to the incident.
Fenwick addressed the allegation made by Chadd that he'd insinuated a falsification be made by uttering the phrase "I call it good, you call it good," and instead explained that he (Fenwick) thought it to mean that he trusted the deputies on scene to be honest about what happened since he had not been present when PCSD apprehended Warren.
Fenwick denied knowledge of where Smith's patrol vehicle would have been later that evening, saying he imagined it would be at the body shop and probably not at the Sheriff's Department..
Earlier testimony from Sheriff's Deputy Mike Downing placed Smith's vehicle at the Sheriff's Department hours after the incident, where Smith was playing the now-missing video footage that supposedly captured Smith punching Warren.
Downing did not get to see the video as a group of "a half dozen officers" had crowded around the vehicle to watch the footage.
When asked by prosecution what the reaction to the footage was by the officers, Downing replied with only one word.
"Wow."
Fenwick also denied being asked by Putnam County Judges Matt Headley or Denny Bridges to investigate Deputy Smith and the Warren incident.
Testimony revealed that Fenwick was under the impression that since he hadn't been told to do anything from the prosecutor, and thought Headley or Bridges were going to do something about it, he did not need to investigate the matter.
Judge Bridges would later testify that he had told Fenwick he remained concerned about Smith's behavior after the alleged punch to Warren's head.
Finally, Bridges told Fenwick that something had to happen.
"Steve, I've got to do something about this," Bridges gave as testimony to what happened prior to FBI involvement.
According to Bridges, Fenwick responded by saying there was nothing to hide and he hoped that the FBI would look into it.
Headley, communicating with Bridges, then contacted the FBI.
It was reported when the FBI served Fenwick with a subpoena, he told the agent that it was "based off a lie."
Fenwick has spent all of his 33 years in law enforcement with the PCSD and when asked, said that he did not blame the government's investigation for his loss in the recent election.
The prosecution spent considerable in cross examination with the testimony of VBL Security Officer Keith.
In his testimony, Keith was the only law enforcement officer throughout the trial to claim that Smith had not used excessive force.
"He used a minimum amount of force," Keith replied to the prosecution calmly.
At one point, when pressed by Blackington, Keith agreed that Smith had placed Stwalley to the ground in a "gentle" manner.
Keith's testimony of the event did not have Troyer taking an active role in the subduing of Stwalley in the kitchen.
"Troyer did not engage," Keith informed the jury.
Keith in fact, couldn't really remember many details about Troyer's activity other than he was at the scene that night eating.
According to Keith's testimony, Smith was not unnecessarily aggressive nor did he use unwarranted force.
Keith's activity on Facebook around the time of the indictment of Smith, was called into question.
One comment "the ones who lied are no better than the criminals whose testimony they used to get the indictment," was of particular concern to the prosecution.
Keith explained that he was merely defending his friend against individuals on Facebook who were making threatening statements, some going so far as to call for Smith's death.
In regards to a comment in which Keith was purported to have said Smith gets away with stuff on the street that couldn't be done at a correctional facility. Keith clarified that he was referring to the amount of paperwork required any time non-incidental physical contact is made with an inmate, something that PCSD officers do not have to worry about.
David Gruner was later called to the stand who, along with Neimeyer, were eating at the Cloverdale Truck Stop on the night of Dec. 28, 2013.
Gruner testified that Stwalley had first been calling him over and over throughout the night, then began calling Neimeyer. Gruner did not know how she got Neimeyer's phone number.
During his testimony, Gruner gave a collected account of what, as the designated driver that night, he recalled of the evening.
His testimony was later called into question by FBI Agent Jacob Overton, who testified that when he interviewed him in Feb. 2014, Gruner was vague about the incidents of that night and that it was unlikely Gruner had a better memory of events now than he did then.
The defense questioned the interview that, according to Tompkins, was printed on a single piece of paper. Tompkins continued that perhaps the brevity of the interview was representative of a lack of depth.
Tompkins also raised questions about Overton not recording the phone conversation nor documenting the questions that were asked, although the FBI requires neither.
Special Agent Michelle Cunnane, who was investigating the case along with Overton, was called to the stand to speak.
According to Cunnane's testimony, when Fenwick was delivered the subpoena, which named Smith as the focus of the investigation, she was concerned for the safety of incarcerated witnesses Warren and Billy Jones.
Cunnane testified that when she told Fenwick that Smith was not to have contact with these inmates, Fenwick replied saying that he would tell him but that he didn't ultimately control the actions of Smith.
In closing Wednesday, PCSD Lieutenant of nearly 16 years, Dwight Simmons, was asked to testify about the comment Keith had made.
Simmons told the prosecutor he'd heard Keith say, "TJ (Smith) is off the hook, I work at a prison and couldn't get away with half the things he does," in a conversation with Reserve Deputy Rick Lambert.
Simmons testified that the tone of the statement did not sound as though he was referring to paperwork, but rather that Keith had seen Smith act "outside the norm," during the time from March 2013 to Sept. 2013 in which Keith regularly rode along with Smith.
Smith waived his right to testify during the trial, as is his legal right to do.
Closing arguments will be made from both prosecution and the defense beginning at 9 a.m. Thursday morning at the U.S. District Courthouse in Terre Haute.
After closing statements are made, the jury will be given instructions and asked to deliberate on each of the four charges until a verdict is reached.
Smith is being charged with four counts of deprivation of civil rights under color of law.
Each charge carries a maximum sentence of 10 years imprisonment and fines of up to $250,000.