On August 30, 2006, two men wearing t-shirts over their heads and carrying .22-caliber pistols robbed a Fisca gas station in Barton County, Missouri. An employee said the robbers fired one shot into a cigarette rack. The employee then opened the cash register and handed over $700 in cash.
The robbers drove off in a red truck. The station attendant wrote down the license plate number and police determined the truck had previously been stolen.
In January 2007, Barton County Sheriff’s deputies arrested Israel Freeland on charges of forcible rape, forcible sodomy, second-degree assault and victim tampering. At about the same time, police arrested 21-year-old Codey Smith on an unrelated charge. Freeland told authorities that while both were in the Barton County Jail, Smith had confided to him that he and another man named Kyle Carroll had robbed the gas station and dumped the stolen truck in a strip-mining pit. Eight months later, in September 2007, authorities found the truck in a strip-mining pit in Kansas.
Smith and Carroll were charged with armed robbery and armed criminal action for the hold-up of the gas station. Carroll pled guilty and was sentenced to 10 years in prison.
Smith went to trial in Barton County Circuit Court in October 2008. Freeland testified that Smith had admitted committing the crime. Freeland said that in return for his testimony, the prosecution had agreed to dismiss the victim tampering and second-degree assault charges pending against him.
Prior to the trial, Carroll wrote a letter to the prosecution inquiring whether there was something he could do to reduce his sentence. Smith told his trial defense attorney that if called to testify, Carroll would tell the jury that he committed with robbery with someone else—not Smith. However, Smith said, Carroll would not name his accomplice.
The defense attorney chose not to call Carroll as a witness and presented no evidence on Smith’s behalf. On October 15, 2008, the jury convicted Smith of armed robbery and armed criminal action. He was sentenced to 16 years in prison.
In September 2009, the Missouri Court of Appeals upheld Smith’s convictions. Subsequently, Smith, acting without a lawyer, filed a petition for post-conviction relief. Stephen Harris, of the Central Post-Conviction Office of the Missouri State Public Defender Office in Columbia, Missouri, was appointed to represent Smith. The petition claimed that Smith’s trial defense lawyer had provided an inadequate legal defense by not calling Carroll, who would have testified that Smith was not involved in the crime.
During a hearing on the petition in November 2010, Freeland recanted his trial testimony. Freeland admitted that he had learned details of the robbery from others and falsely accused Smith of being involved. Freeland said he wanted to correct the harm of his prior false testimony.
Smith’s trial defense attorney testified that his strategy was to discredit Freeland and to try to persuade the jury that Freeland was lying because the prosecution had promised to dismiss some of his charges. The defense lawyer said he didn’t call Carroll as a witness because he did not know what Carroll would say. He said he was leery because Carroll had written a letter offering to assist the prosecution.
Carroll testified at the hearing that if he had been called at Smith’s trial, he would have testified that Smith was not with him during the robbery. Carroll refused to name his accomplice and affirmed that he would not have named his accomplice at Smith’s trial. Asked about the letter he sent to the prosecution, Carroll said he was only seeking a sentence reduction because he had never before been convicted of a crime. He denied he was seeking to help the prosecution.
On November 10, 2010, the judge granted Smith’s petition, vacated his convictions, and ordered a new trial. The judge ruled that the trial defense attorney should have called Carroll as a witness at Smith’s trial.
However, in October 2011, the Missouri Court of Appeals reversed that ruling and reinstated Smith’s convictions, holding that the trial defense lawyer’s decision not to call Carroll was a strategic decision based on the lawyer’s belief that Carroll was a “time bomb” who could not be trusted as a witness.
But on July 3, 2012, the appeals court decision was set aside by the Missouri Supreme Court, which upheld the trial court’s decision to vacate Smith’s convictions and order a new trial. The court noted that Smith’s defense lawyer never spoke to Carroll or investigated what he would say if called as a witness. Therefore, the court reasoned, the decision not to call Carroll was based on speculation. The court agreed with the trial court judge that there was a “reasonable probability that Carroll’s credible testimony would change the outcome of Smith’s trial.”
On July 19, 2012, the prosecution dismissed the charges against Smith, who was then transferred to a prison in Kansas where he had pled guilty to an unrelated robbery.
– Maurice Possley
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