The paper I wrote for my Criminal Procedure class...

State vs. Smith:
My Observation of the Trial of Christopher Smith

Jeff Osborne

April 25, 2010

You would have had to have been living under a rock, or at least never read a newspaper or watched local news to not be familiar with the name Jimmie Swafford. In what the Kingsport Times-News called the “largest drug indictment in Sullivan County history” Swafford, along with 19 others were charged with conspiracy to sell or deliver over 300 pounds of marijuana. One of the alleged co-conspirators is named Christopher Smith. In addition to being charged in the conspiracy Smith is also charged with 2 counts of official misconduct as he was once a Kingsport, Tennessee police officer. All of the other defendants have pled guilty to their crimes, including the alleged ring leader – Jimmie Swafford. Mr. Smith is the only one of them to actually go to trial.

In order to be completely forthcoming I want to add that I personally know Chris Smith. I also know Jimmie Swafford, though not as well as Mr. Smith. It is more of an acquaintance type of relationship that I had with Swafford, the kind where if we see each other we might say hello or give the acknowledging head nod. Neither of us is going to cross the street just to talk to the other. It’s more like we just know who each other are. Chris Smith, on the other hand, is a completely different story. I met Chris about 10 years ago when I was a DJ at a Kingsport nightclub. Chris was working for the Kingsport Police Department (KPD) at the time, and was one of several officers who would work security in our club when they were off duty. Our kids don’t know each other and I’ve only met his wife once, but Chris Smith is definitely someone who I would say is a friend. We don’t hang out or talk on the phone much (at least not until I started attending his trial) but most people our age don’t. However he is someone who I would actually make the effort to cross the street to talk to. I’ve always liked Chris and always thought of him as a “straight shooter.”

For this assignment I was looking for a trial to attend and I had seriously considered attending the sentencing hearing for my brother in Federal Court (that’s a whole other can of worms though.) The night before I was going to go attend the sentencing I was chatting with Chris Smith on Facebook. I asked him how he was doing and when his trial was going to be. He advised me that it was the next day. I asked if he would be comfortable with me observing the trial and doing a report for my class. I told him that I knew that it was a public trial and I could attend anyway, but I wanted to know that he would be okay with it. I also told him that, even though I considered us to be friends and even though I did have my own preconceived notions as to his guilt or innocence, I would be attending the trial with an open mind. I would be willing to let the prosecution prove to me that he was in fact guilty or make my own opinion as to his innocence. He replied that it was fine with him and that he actually wanted me to keep an open mind. He said that he felt that not only would the evidence cast a shadow of doubt as to his guilt, but that the evidence, when taken in the proper context, would actually show he was innocent.

Monday, April 5, 2010
I had really expected the courtroom to be packed because this was such a famous case in the media. I was running a little late so I fully expected to have to stand, that is if I could get in at all. I went through the metal detector and noticed that the area outside the courtroom was full of people. I went to one of the courtrooms and quickly realized that it was the wrong one. I then went to the next room and to my surprise the courtroom was almost empty. I did see Smith and his attorney, Don Spurrell. I also noticed the District Attorney General Greeley Wells and one of his assistants, Gene Perrin. There was another man sitting at the table with them who I would later learn was Tennessee Bureau of Investigation (TBI) agent Chuck Kimbrel, the lead investigator on the Swafford case. The presiding judge was Judge Robert Cupp. Judge Cupp is normally not a Sullivan County judge but was assigned the case because the usual Sullivan County judges had recused themselves, they both knew Mr. Smith.

There were 2 other cases on Judge Cupp’s docket that day, but neither of the defendants was in the courtroom. I did not hear what happened with the first defendant, but I did hear the judge say he would issue a capias for the second defendant for “failure to appear.” Now it was time for Chris’s case. Before jury selection could begin Mr. Spurrell entered a motion for a bench trial. The prosecution did not object and so the judge said that he would hear the case. He thanked both sides for trusting him enough to hear the case then he said he would like to call in the prospective jurors to let them know what was going on.

After about a 30 minute recess, the prospective jurors were all called into the courtroom. It was then that I learned that all those people waiting just outside the courtroom were all prospective jurors. Judge Cupp then informed them that the defendant had entrusted him with deciding the case and that their services would not be needed that day. He also told them that since it was the end of their terms they would be free to go and not have to return. He went on to talk about how if you had never served on an American jury then you were missing out on one of our great duties as an American. He said that the experience was truly a patriotic duty and very important to our judicial process, then he told them they were free to remain and observe the trial if they chose to but otherwise they were free to go. At that moment almost all of the prospective jurors got up and left the courtroom and the 3 or 4 that remained left within the next few minutes.

After another “quick” recess (about 15 minutes) the trial was underway. District Attorney Greeley Wells gave the opening arguments for the prosecution, which stated that basically he felt that they would prove that Mr. Smith was guilty beyond a reasonable doubt of the charges against him. He also talked about Jimmy Swafford and discussed all the crimes he had already pled guilty to. He talked about recorded phone calls that showed that Swafford and Smith had a very “close” relationship. He also talked about an accident where Mr. Smith had failed to charge someone with a DUI and that he did so in order to gain a personal benefit.
The defense then gave their opening statement, which included the attorney, Mr. Spurrell, telling the judge a basic history of the defendant up until the charges were placed against him. He talked about Smith’s character and how he had once even written his own citation when he was involved in an accident when the investigating officer refused to do so. Then he said something to the judge which I found to be kind of odd at the time. He actually said that he wanted to remind the judge that in America, a defendant is innocent until proven guilty beyond a reasonable doubt. He said that he did so respectfully, but that this was the kind of case where he felt that the prosecution was going to try to make the defendant prove his innocence, rather than them actually proving his guilt. He also stated that the defendant was innocent and guilty of nothing more than bad judgment. He admitted that yes, the defendant was friends with Swafford and yes he did plan to set up security for his newest nightclub but that alone was not a criminal act. The only arrest that Mr. Smith knew about involving Swafford was at least a year prior to Smith ever meeting him. At that time Swafford told Smith that he wasn’t involved with drugs anymore and that all he wanted was to run his nightclub. He said that he felt that the phone calls would show this. As for the DUI charge he said that the reason Smith did not charge the suspect in that case was because he was advised by an assistant district attorney to not to. Apparently the blood that was taken was taken without the suspect’s permission and this is only allowed when the driver is seriously injured. He then said that in the end the judge would have no other choice but to find the defendant not guilty on all charges.

Again, another break and then it was time for the prosecution to call their first witness, Corporal Tim Horne of the KPD. The first questions were “Please tell the court your name.” “What do you do for a living?” “How long have you done that?” Then the questions moved to Mr. Swafford and a traffic stop that Cpl. Horne had initiated back in 2005 involving him. Cpl. Horne testified that he had stopped Mr. Swafford for a window tent violation and during the stop he had found Mr. Swafford with approximately 10 pounds of marijuana. He went on to answer several more questions from Mr. Perrin but what I found to be odd was that the questions were all about Mr. Swafford, none about Mr. Smith.

Then it was Mr. Spurrell’s turn. He asked basic questions, like if Cpl. Horne knew Smith, how long had he known him, etc. After several more questions he asked Horne if he remembered an occasion where Smith had an “at fault” accident and Horne had refused to write Smith a ticket. He said he remembered the wreck and that he had actually written Smith a warning citation. Spurrell then said, are you sure that is the way it had happened, to which Horne replied “Yes.” Spurrell then asked “So Mr. Smith didn’t take your ticket book from you after you refused to write a ticket and then proceeded to write his own ticket?” to which Horne replied “No, that is not the way it happened.” Then I saw Mr. Spurrell pull out a blue piece of paper. I recognized it right away as the “carbon” copy that you receive whenever you are given a citation. He then showed it to Mr. Perrin and said something like “Your honor, May I approach the witness?” The judge nodded. He then walked up and handed the paper to Cpl. Horne. I noticed Cpl. Horne’s hand shake a little as he reached out to take the piece of paper…

Spurrell: “Can you tell the court what this document is?”
Horne: “It is a citation issued to Christopher Smith for failure to yield.”
Spurrell: “Who issued the citation sir, whose signature is that at the bottom?”
Horne: “That is my signature, sir.”
Spurrell: “That is your signature but whose handwriting is the citation written in?”
Horne: “That is Chris Smith’s handwriting.”
Spurrell: “Nothing further, your honor.”

I remember the first thing I thought to myself after witnessing this was “Damn, this guy’s good!”
By then it was about 11:45 am and the judge said “I think we can stop here for lunch, let’s be back at 1:15.” I walked outside where Chris and his attorney were talking and Chris introduced me to Mr. Spurrell. I stood there and listened while they talked about how it was going so far and how they had already caught the state’s first witness lying on the witness stand. I noticed that Mr. Spurrell seemed very confident in the case and also heard him say that “They don’t have anything, I can’t believe they ever brought this to trial.”

I came back after lunch at about 1:20 and the court was still not in session. I remember thinking to myself at that moment “It’s no wonder this process takes so long.” After a few more minutes the judge came in and court was back in session. The prosecution called agent Chuck Kimbrel of the TBI to the stand. The first questions were what I would learn would be standard procedure for both sides: “Please tell the court your name.” “What do you do for a living?” “How long have you done that?” After the standard questions came the questions about the case.
All of the questions from the prosecution surrounded the joint investigation of Mr. Swafford by the TBI, KPD and several other law enforcement agencies. Kimbrel testified all about the investigation - when it started, how long it lasted, when Mr. Swafford first came to his attention, how it all came about. He testified about how the investigators obtained wiretaps to monitor Swafford’s phone calls and how they were able to determine other “co-conspirators” from these recordings. He talked about where, because of the wiretaps, they were able to determine that Swafford was going to North Carolina to make a drug buy. They were following him but somehow lost him near, I believe, Boone, North Carolina. They were able to catch back up with him in Johnson City, Tennessee and, believing that he was now in possession of the drugs, they had the Tennessee Highway Patrol (THP) instigate a traffic stop. It was then that they found Swafford in possession of approximately 15 pounds of marijuana but instead of arresting him they took him to the TBI offices and asked him if he would be willing to be a confidential informant. Agent Kimbrel went on to say that he did not really intend on using Swafford as a confidential informant but at the time they were still investigating the “conspiracy.” Because they weren’t ready to finish that they did not want to “give up their wiretaps.” The whole confidential informant thing was a ruse to throw Swafford off to the fact that he was a part of a much bigger investigation. Swafford would end up going home that night without so much as a citation.

As far as Mr. Smith goes, agent Kimbrel testified that during the process of the investigation they found that Mr. Smith had a relationship with Mr. Swafford and because of this they became “alarmed.” He testified about a meeting he had with Mr. Smith as the investigation was wrapping up and how Smith had offered to buy drugs from Swafford, “if Swafford was in fact selling drugs.” The prosecution also touched briefly about the recorded conversations between Smith and Swafford, but they stated that they would be talking more with Kimbrel about them when they were actually played for the court.

The defense then cross-examined Mr. Kimbrel and asked several questions of their own, most centering around the yet un-played conversations between Mr. Smith and Mr. Swafford. Mr. Spurrell asked if Mr. Smith, as a KPD officer, was assigned to the investigation, to which Kimbrel replied “No.”
Spurrell: “Did Smith have any knowledge that this investigation was even occurring?”
Kimbrel: “No.”
Spurrell: “Was either Swafford or Smith even aware of the fact that their calls were being monitored?”
Kimbrel: “No.”
Spurrell: “Did they have even one phone call between them where they discussed drugs?”
Kimbrel: “No.”
Spurrell: “Do you have any evidence that shows my client was ever in the presence of so much as a single seed of marijuana”
Kimbrel: “No.”

Agent Kimbrel was the last witness to take the stand that day. As I was leaving the courtroom I realized that most of the questions asked by the prosecution that day involved Jimmy Swafford and his drug “enterprise.” Because of this I found myself thinking “If I didn’t know better I would think Swafford was on trial here.”

At this point I knew that I had already completed more than the time that was required for this assignment but I found myself very interested in the process of the trial. I decided that I would come back as my schedule would allow. For the sake of time, I will summarize the remainder of my observations throughout the trial. It continued on Tuesday, April 6th, Wednesday, the 7th, Thursday, the 8th, and for a half day on Friday, the 9th. Because of scheduling conflicts the case then picked back up on Wednesday the 14th and Wednesday the 21st. Of those days, I was only able to attend the last half of the day on the 8th, the first half of the day on the 14the, and the full day on the 21st.

Wednesday, April 14, 2010
The prosecution had wrapped up their case on the previous Friday, so today is when the defense will start to present their case.
• Mr. Spurrell submits a motion for judgment of acquittal – Denied by Judge Cupp who says “I wouldn’t say the prosecution has kicked the door open on this case, but I think they may have it cracked just a little.” (Copy of Motion for Judgment of Acquittal is Attached)
• Gary Alexander: Testified as to when he purchased a Mercedes SUV from Jimmy Swafford. This was the same SUV that Swafford was driving when he was arrested in 2005 with the 10 pounds of Marijuana. There had been some testimony by witnesses for the prosecution that the vehicle was spotted parked beside a police cruiser, behind a car-wash on a specific date, a date when Mr. Alexander was already in possession of the vehicle.
• Timothy Laron Ingram: Testified that, as a former employee of Coconuts and Hog Wild Saloon in Kingsport, it was common to for uniformed police officers to stop in during the day when the business was closed and grab a soda, fill out reports or to just hang out and talk while on duty. On Wednesday nights when they were having bikini contests there would be sometimes 3 or 4 patrol cars outside with officers inside observing the contests. This was because the prosecution had shown evidence prior of Mr. Smith going to Swafford’s Club Limelight while he was on duty. When cross-examined by Attorney General Wells he was asked if he knew that they were in fact on duty to which Ingram replied “It was pretty obvious considering they were in uniform in the middle of a shift” After General Wells gave him a blank stare he finally said “Officially, No.”
• Jimmy Swafford: Testified that “there was no way Smith could have known” that he was dealing drugs because he kept that part of his life separate from the club – or at least he tried to. He admitted to misleading Smith and “playing the race card” to gain Smith’s sympathy and in turn his help with setting up security at Limelight. He testified that there was no way he would have ever told Smith what he was doing because he knew Smith would arrest him. Smith had told him so many times.

At this point it was lunch time and, due to other commitments, I missed the cross-examination of Mr. Swafford by the prosecution.

Wednesday, April 21, 2010
The day begins with Chris Smith taking the stand to testify in his own defense, and he testifies to the following.
• His history leading up to the indictment, including his career in the police force and how he would eventually meet Swafford.
• He was aware of Swafford’s past arrest but that he (Swafford) had told him that he was planning to plead guilty, put it behind him and move on with his life. He had told him several times that he was no longer messing with drugs and that he wanted to “go legit.”
• Was never made aware by Swafford of the THP stop in Johnson City. 2 weeks after the stop he (Smith) began hearing rumors about it and called Swafford and asked if the rumors were true, to which Swafford completely denied. (The call was recorded and already presented in court)
• He did end up getting close with Jimmy Swafford and truly felt that he was trying to turn his life around. Admitted that he was “duped” by Swafford and that he “is not too proud to admit it.”
• Felt that the only reason that Swafford kept being pulled over (Swafford told Smith about every time he was pulled over and searched when no drugs were found) was because he was led to believe, by Swafford, that the city was “out to get him.” (Swafford) and keep his new club from opening. Says that he had witnessed the bias at the police department and within the city and so it was easy to believe.
• Discussed all of the 52 recorded conversations and gave his side as to what he meant in specific statements that were recorded.
• As to the Dennis Kerns case (the “uncharged” DUI), Smith testifies as to everything that happened, from the one vehicle accident in which Kerns was injured and suspected by Smith of being intoxicated leading up to his deciding not to charge Kerns. Smith states that he seeks out the advice of Officer Dale Farmer and assistant district attorney, Ed Wilson, who both advise him that they would not charge because without the tainted blood sample, which Smith believes was taken illegally, there is no probable cause and the case would be dismissed anyway.
• He (Smith) never made any attempt to hide his relationship with Swafford from anyone and that it was well known from the beginning at the KPD. Says that all that the KPD would have had to done, if he was in fact “breaking the rules” was to suspend him when his relationship first began with Swafford and that would have been it…he would have severed ties with Swafford and “we wouldn’t be sitting here today.”

At the end of this day, Judge Cupp advised that while he was definitely not pushing any of the attorneys to rush through their case, he did think that they were at a point where they could schedule the remainder of the trial. Both sides agreed and it was determined that the case would wrap up on Monday, April 26. The judge then advised that he would be taking the time to thoroughly review the evidence and that he would be prepared to render a verdict on Friday, May 7th.

Monday, April 26, 2010
The prosecution wraps up there cross-examination of Smith and calls three rebuttal witnesses
• Ed Wilson: former assistant district attorney. Testifies that he does remember Smith stopping him outside his office one day and asks his advice about a case where the blood was “forced” on a suspect. Doesn’t remember a specific case name or if it was ever given, but that it did involve a single vehicle crash on Stone Drive with no witnesses (the exact same circumstances as the Kerns case.) States that based on what Smith told him he told him he wouldn’t charge the suspect but that he “didn’t work for me” and that he should follow his department’s procedures.
• Dale Farmer: Kingsport Police officer, testified that he doesn’t remember any specific conversation with Mr. Smith regarding the DUI case, but also admitted under cross-examination by the defense that he is asked many questions every day by many different officers.
• Mark Addington: former Kingsport Police Chief testifies that Smith did seek approval to work security at the Limelight club and that he was aware of Smith’s association with Swafford even though it is a blatant violation of the KPD’s general orders. When asked by the defense why he never pointed this out to Smith he says that he is not one to make rash decisions and that he wanted to look into it further and that he was also on the way to a meeting when Smith brought it up. He also adds “as a police chief I was a busy man who worked 70 and 80 hours a week”
Both sides rest and after a brief break it is now time for closing arguments. The prosecution goes first and basically reiterates everything that they have already said. They go over several of the transcripts for the recorded conversations and pick comments out and tell the judge what they think these comments mean. Mr. Perrin tells a story about Wal-Mart and how they are a large corporation with many different employees, each responsible for their own part of the business, and that between all the people at different levels there are many employees that never see each other or even know that the other exists. This, he says, is how a conspiracy works also and that “this criminal conspiracy, this criminal enterprise” is nothing different except that it is illegal. Jimmy Swafford is the man at the top, the “hub of the wheel.” He goes on to define the law and what the state has to prove, which he thinks they have, and what they don’t have to prove.

Next up is the defense and Mr. Spurrell. I have attached both Mr. Spurrell’s personal copy of his closing arguments (of which he “ad-libbed” a lot of.) and also a copy of the newspaper article that really does a good job of capturing how it went. (I’ve also attached the article from the day prior which details the prosecution’s statement, along with every article printed by the Kingsport Times-News regarding anything to do with Mr. Smith in reference to this case or Swafford or Club Limelight.) Because I’ve attached this I won’t go into detail here as to its contents but I will say that I was totally blown away by Mr. Spurrell’s delivery.
In conclusion I would like to say how much I have really learned from this whole process. This case has really opened my eyes to how things work in this country with regard to our criminal justice system. I have got to observe how the process works, at least the trial process, from beginning to end. I’ve also realized things that I never knew about the press and how they fit into the process. I think the court of public opinion is sometimes very important, and I realize that a single reporter is sometimes the only person who people can depend on to know what is happening in our system of justice. It is very important that this reporter is fair and unbiased…sometimes I don’t think that is always necessarily the case.

So with all this being said, one might ask “what is your opinion as to the guilt or innocence of Mr. Christopher Smith?” and to that I would say this. We are taught from the time we are small children (or at least I was) that a person is always innocent in this country until proven guilty beyond a reasonable doubt. In my personal opinion the only thing the state has proven beyond a reasonable doubt is that James Swafford Jr. was a drug dealer. The majority of their case was stating just that fact. I understand that the state is trying to prove that the conspiracy exists in order to be able to tie Mr. Smith into it. The only thing wrong with that in my opinion is the fact that Swafford has already pleaded guilty to all of his crimes. I don’t understand why the state would spend so much time, effort and money to prove something that someone has already admitted to. Would I bet everything I own that Mr. Smith is innocent? No, I would not. I wasn’t with him every minute of every day so I would have no way of knowing if he is truly innocent or not. The good thing for us as Americans though is that I don’t have to know. The burden of proof in this case is not Mr. Smith’s. He doesn’t have to prove his innocence. The state must prove his guilt beyond a reasonable doubt. In my opinion, if this case has anything it has reasonable doubt, on both sides, reasonable doubt as to his innocence and reasonable doubt as to his guilt. I do not know what the future holds for my friend, but we will all find out on May, 7.

**This is my grade and my teacher's comments...yes, I'm just a little proud considering I have never received a grade of 100 on a paper.

CJCR 2650:
Criminal Procedure
Term Paper
Grading Rubric
Student Name:
Jeff Osborne
#Pages: 14
Letter Grade: A
Points Awarded: 100

Instructor Comments:
Jeff...you have written an
excellent paper that is all inclusive
of the events that took place in court recently. Your paper demonstrates that you went above and beyond what is normally expected of a student in an undergraduate course. Your product is mostly free of
grammatical errors and provides excellent insight and observation. I imagine that Chris Smith may like a copy for himself!!!
EXCELLENT JOB!!! @