Attorneys challenge ruling to allow DNA evidence

Michael Smith

GOSHEN — Attorneys for a man accused in a once-cold case murder may try to appeal a judge’s decision on evidence before they go to trial next month.

Michael Smith, 32, is charged with killing Drake Muncie at his Elkhart home on Aug. 2, 2009. Smith was arrested in May based on DNA evidence that allegedly placed him at the scene of the shooting.

He is scheduled to stand trial beginning Oct. 7.

His attorneys are challenging the justification police used to get a warrant for his DNA and other evidence starting in 2017. Investigators learned that a man had said he was with Smith when he went to buy eyeglasses in 2009, and that Smith told him the reason he needed new glasses was related to being involved in a homicide.

His attorneys argued in a motion to suppress evidence that Smith’s alleged confession to the man was multiple degrees of hearsay, and shouldn’t have been the basis for a warrant.

Circuit Court Judge Michael Christofeno ruled against them in a Sept. 3 order, which followed a hearing in May and written followup arguments submitted by attorneys for both sides.

Potential trial delay

On Wednesday, Smith’s lawyers filed a motion that could have Christofeno’s decision examined by the Indiana Court of Appeals. It could delay the trial by another six months to a year, if Christofeno agrees to allow it.

He questioned them on the motion Thursday, asking why they thought his decision was wrong and whether they had given any thought to how Muncie’s family could be affected by the delay.

Attorney Michael Roose said the family would have to go through a second murder trial if Smith went before a jury now and the Indiana Supreme Court decided afterward that a mistake had been made. 

“We’d like to go to trial one time, and do it right the first time,” he said.

He also thought that the objections he would be forced to raise at trial could add a full extra day to the proceedings.

Christofeno expressed doubt at the thought that even 150 appeals could add more than half a day to a trial. He also remarked that, if Smith wins his motion to suppress, the state’s DNA evidence will go out the window. 

Elkhart County Deputy Prosecutor Don Pitzer said he thought the most efficient way to handle the issue would be to take the case to trial and then let Smith appeal the results if he’s convicted.

Christofeno said he’ll take the request under advisement and have a decision soon.

Suppression hearing

Police had spoken with Smith within days of the murder, according to a detective’s testimony at the suppression hearing, which was recounted in Christofeno’s 20-page written order.  A pair of eyeglasses had been found at the scene and police were checking with optometry stores to see if anyone matching the description of the suspect had come in recently.

Muncie’s wife said he was killed by “a light-skinned black or Hispanic male who was fat, was 5’7” to 5’9” in height, and was wearing glasses.” Court records list Smith as being 5’6” and 260 lbs.

Smith told officers he lost his glasses while bowling at the end of July. He declined to speak with police any further.

Officers also spoke with a man who was in a vehicle parked outside the store. About five years later, when the man was facing charges of his own, police were told by a deputy prosecutor that his attorney said he had information to share about Smith.

Investigators never spoke with the man directly, but cited the information he gave in their May 2017 search warrant for Smith’s DNA, according to Christofeno’s recounting. The man allegedly recanted his earlier statement in a July 2017 conversation with police, but the statement was cited again in a March 2019 warrant for Smith’s glasses while he was in the Elkhart County Jail.

Smith’s attorneys argued that the warrants were based on substantial hearsay and should be invalidated. Roose also pointed out Thursday that police didn’t act on the statement about Smith for three years, which he said suggested they didn’t believe it was credible at the time.

Christofeno found in his order that the warrants were issued based on probable cause. He noted that warrants may be issued based on evidence that wouldn’t otherwise be admissible at trial, including hearsay, if the judge approving the warrant deems it trustworthy.

The witness “was not just an anonymous source or a typical ‘jail house snitch,’” Christofeno wrote.

He also noted that police had other reasons to suspect Smith, such as the fact that he ordered new glasses the day after the murder, which were also cited in the request for a warrant.

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