By Connie Morrison
Judge Glen A. Tyler has declared a mistrial in the murder trial of Tyvon Smith, who was accused of the July, 2011 murder of Belarmino Escalante. He also faced charges of attempted murder and related firearms charges.
Day two of Mr. Smith's trial began with testimony from Devonte Davis, who is a co-defendant in the murder case. Mr. Davis testified that he, Mr. Smith, and Kevonte Bell, another defendant in the case, were hanging out together in the early morning hours of July 21, 2011. They pulled alongside a fuel pump the Royal Farms at Nelsonia, and decided to rob the Hispanic at the pump in front of them. They followed the individual in his truck to Candelero de Oro church on US-13 near Gargatha, not knowing that there were three other vehicles also going from Royal Farms to the same location. The co-defendants pulled up to the first vehicle to commit the robbery, but others began to arrive, frustrating their plans. Mr. Escalante had left his vehicle and was approaching on foot. They decided to leave, and as they did, Mr. Davis testified he heard Mr. Smith tell Kevonte Bell to back up the vehicle, then he heard a gunshot. Mr. Escalante was shot, and the three co-defendants sped off in their vehicle. Mr. Davis said he saw the gun in Kevonte Bells hand.
Mr. Davis testimony concluded the Commonwealths evidence, and defense attorney Carl Bundick immediately moved to strike the Commonwealths evidence because he said that even in the best light, the evidence did not support the charges. Judge Tyler granted the motion on counts three and four attempted robbery and use of a firearm in the commission of an attempted robbery but denied the motion for murder and two other related firearms charges.
Mr. Bundick then called Mr. Smith's parents as alibi witnesses, and Mr. Smith testified in his own defense. All testified that Tyvon had worked at Tyson that night, and was picked up by his mother at around 2:00 a.m., and he did not leave the house again that night. A Tyson's employee provided records that showed Mr. Smith arrived at work on the 20th around 4:00 p.m., and clocked out around 11:33 p.m. that same night. Mr. Smith explained that he was required to stay another two hours off the clock because he was still learning his job.
Royal Farms surveillance first caught the three codefendants and their vehicle on video around 12:30 a.m. on the July 21st 2011 as they purchased gas at the Parksley Royal Farms. Royal Farms in Nelsonia captured the vehicle again around 4:00 a.m. on the 21st at as it waited behind a white pickup truck, and then followed it out of the Royal Farms Parking Lot. In both cases, the video was not of a resolution to permit identification without other knowledge of the scene. In the Parksley video, a witness who knew the three and engaged them in conversation while they were pumping gas identified himself and the codefendants in the video. Devonte Davis provided identification for the second video.
The judge gave the jury instructions, and then the jury heard closing arguments.
Commonwealth's Attorney Gary Agar emphasized the instruction regarding concert of action.
"Were they planning to kill someone? It doesn't matter. All who participated in bringing it about are responsible whether the resulting crime was originally contemplated or not," said Mr. Agar.
After deliberating for about three hours, the jury returned and the foreman reported they were hopelessly deadlocked on the murder charge and use of a firearm in the commission of a murder, but they had reached a verdict on the charge of possession of a firearm by a person convicted of a crime as a juvenile that would have been a felony for an adult. Judge Tyler said he did not see how he could accept a verdict on the last, without a verdict on the other two when all three charges were so intertwined, and declared a mistrial. Mr. Agar said he intends to re-try the case.