Man guilty on lower charge
By NICHOLAS LEDDEN/Daily Inter Lake
Published: Wednesday, March 11, 2009
An Evergreen man was convicted Wednesday afternoon of negligent homicide in the March 5, 2008, shooting death of his girlfriend's 19-month-old daughter.
After deliberating for three hours, jurors found 24-year-old Dwayne Scott Smail — who was on trial for deliberate homicide — guilty of the lesser murder charge.
"I'm not surprised. I'm not even disappointed," County Attorney Ed Corrigan said. "We simply couldn't provide an answer as to why he killed that baby."
Without evidence of intent and "definite, concrete" proof Smail knew the gun was loaded when he pulled the trigger, Corrigan said he understood the jury's decision not to convict Smail of deliberate homicide.
Defense attorney Steven N. Eschenbacher said the verdict was the "right outcome."
"We just thought Dwayne never had the intent," Eschenbacher said. "In this particular trial it was more about challenging the state's case than presenting our own."
Smail, who wept during his testimony and hung his head after the verdict was read, was taken back to the Flathead County Detention Center to await sentencing.
Prosecutors have said physical evidence at the scene failed to support Smail's version of the shooting or his claim that it was an accident.
"He never told the truth," Corrigan said. "I don't think he told the truth in court."
The jury of nine men and six women heard from several forensic experts, including a blood-spatter analyst and medical examiner, who testified that Smail was holding the gun to 19-month-old Korbyn Eva May Williams' head when it discharged.
Corrigan told jurors Wednesday morning that if they were convinced by testimony that the handgun was against the toddler's head, they "certainly have the right to conclude as well that the pulling of the trigger was not accidental."
Corrigan also asked the jury to consider the credibility of Smail's testimony, which differed greatly from what he told investigators, a friend who arrived at the scene soon after the shooting, and Williams.
"He made this statements because he did not want to be caught and held responsible for what he did," said Corrigan, who offered the jury several scenarios of how the shooting may have occurred but acknowledged what actually happened may never be known.
During testimony Tuesday, Smail — who originally claimed Korbyn shot herself — admitted shooting Korbyn once in the head with a 9 mm Ruger pistol while he cared for her at the Montana Village apartment, located on Montana 35 in Evergreen, that he shared with the child's mother.
Korbyn's mother, Aimee Marie Williams, was at work at a Kalispell restaurant when the shooting occurred.
During his closing argument, Eschenbacher asked the jury to return a guilty verdict to negligent homicide.
"He did not deliberately kill that child," said Eschenbacher, who told the jury they would have to believe Smail was a monster is they thought the shooting was deliberate.
"Dwayne loved that child," Eschenbacher said. "What kind of person would read a book to a child and then kill them?"
The state's forensic experts weren't present when the shooting occurred, and all of them admitted they couldn't rule out an accident, Eschenbacher said.
"They did not prove beyond a reasonable doubt it was not an accident," he said. "What he did was kill the child he loved, but he didn't do it deliberately."
Smail, who is scheduled to be sentenced May 28, could face up to 20 years in prison and a $50,000 fine. He also could be ordered to serve up to an additional 10 years in prison for using a firearm in the commission of the crime.