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Lawyer: Smith’s statements should be thrown out

  • Joshua Hart and Brittany Smith recorder file photo



Recorder Staff
Friday, March 02, 2018

GREENFIELD — The lawyer for one of two people accused in a 2016 double homicide in Orange argued Friday that incriminating statements should be thrown out because Brittany Smith wasn’t feeling well when interrogated by police.

Friday saw the final hearing on a motion to suppress evidence in the case of an Athol couple accused of the double homicide. The presiding judge expects to render a decision by March 9.

Judge John Agostini heard defense attorney Mary Anne Stamm argue on behalf of her client, Smith, in Franklin Superior Court.

Smith, 29, and Joshua Hart, 25, are accused of killing Thomas A. Harty, 95, during an Oct. 5, 2016, home invasion at 581 East River St. and fatally injuring his 77-year-old wife, Joanna Fisher.

The hearing Friday pertained to whether statements by Smith during interviews with Lt. Steven Funkhouser of the Rockland County (Virginia) Sheriff’s Office and Stephen Bushay of the Massachusetts State Police should be permissible in the upcoming trial.

Smith was first interviewed by Funkhouser after she and Hart were arrested in Virginia. They allegedly had previously ransacked Harty and Fisher’s home, stealing the elderly couple’s credit and debit cards and the keys to a Toyota Matrix.

Prosecutor Jeremy Bucci of the Northwestern District Attorney’s Office agreed with Agostini and Stamm that audio recordings make clear Smith was feeling unwell during the initial interview with authorities. However, he said a suppression of information would not be appropriate.

According to later testimony from Funkhouser, Smith complained of stomach cramps during the interview. It is unclear whether Smith was suffering from an unspecified illness or, as a heroin addict, symptoms related to drug usage.

“I think it is evident she was experiencing the effects of some kind of illness,” said Stamm, adding that the “cause doesn’t matter.”

Stamm argued that when feeling unwell people cannot “process and mentally respond” the same way they can when they feel well, “even to things that are routine.”

She referred to the difficulty of relaying and processing information when sick as a “common life experience,” and asked those in the room, including Agostini, to recall a time they have had that experience.

Stamm also described Smith’s interactions with the criminal justice system as “limited” and said that would have added to problems with the interview process, in addition to the physical ailment.

Agostini said it is apparent in the first 30 pages of the documents relating to the interview — and in the tape recording — that Smith was sick but felt somewhat better by the end.

However, Agostini asked how that first interview affects the subsequent Massachusetts State Police interview, in which Smith was not ill and gave some similar statements.

Stamm had two answers. The first was a “cat out of the bag” effect, as she termed it, in which Smith will repeat her previous statements because she has already told them to police. The second was that the manner in which police read Smith her Miranda rights was inadequate.

Both Hart and Smith have said Hart murdered Harty and tried to help Smith kill Fisher, according to prosecutors. According to Bucci, both victims were beaten and stabbed in the home invasion, which lasted around 30 minutes.

According to Bucci, the fact that Smith was ill does not warrant a suppression of information related to her interviews. He pointed to court cases where information from interviews was suppressed, but because the interviewee was noticeably in a state of confusion.

“This is very, very different,” Bucci said, adding that the recordings show Smith is lucid and a “person aware of needs, what would help, what wouldn’t help.”

Bucci said Smith was asked during her first interview with Virginia police if she would like a blanket to help her feel better and she said “yes.” She also said “no” to caffeinated beverages, fearing the drinks would make her feel more sick.

The fact that Smith was unwell, Bucci said, does not necessarily mean she gave inaccurate or involuntary statements.

The motive, according to the prosecution, is that Hart, who had warrants from his home state of Pennsylvania, wanted to avoid jail after he and Smith were arrested for car theft a few days before the home invasion.

Smith, according to the district attorney, did not want to enter treatment for her heroin addiction.

The trial of Hart is expected to take place in the first two weeks of April, with Smith’s trial following. Bucci expressed belief Friday that the trials would be finished within five weeks after starting with Hart on April 2.

Reach David McLellan at dmclellan@recorder.com
or 413-772-0261, ext. 268.