Judge denies motion for mistrial in 2009 murder case

Michael Smith, left, is being tried for the 2009 death of Drake Muncie.

GOSHEN — Jurors began deliberations Thursday in the trial of a Tennessee man accused of a 2009 murder in Elkhart, hours after the judge refused to declare a mistrial over one witness’s remarks.

Lawyers for Michael Smith, a 32-year-old former Elkhart man now living in Union City, Tennessee, moved for a mistrial after a witness was apparently about to state or imply that Smith was in jail after his arrest. The judge denied their motion and instead instructed the jury to disregard the remark.

Jurors began their deliberations shortly after 4 p.m. and remained in talks into the evening.

Smith is charged with the murder of 26-year-old Drake Muncie, who was fatally shot outside his north Elkhart home on Aug. 2, 2009. It remained a cold case until a warrant for Smith’s arrest was issued in April 2018, based on DNA evidence that allegedly placed him at the scene.

Smith has been held in the jail without bond since his arrest.

Attorney Matthew Johnson made the motion Thursday morning as Lt. Mike Carich, an investigator with the Elkhart County Homicide Unit, answered questions about Smith’s eyeglasses being examined as evidence. After Smith was arrested and booked in the Elkhart County Jail, police used a warrant to have the glasses he was wearing examined by an optometrist to determine the frame number and lens prescription.

It was a line of questioning to which Smith’s attorneys lodged a standing objection. They have also objected to the original justification police used to get a court-ordered sample of Smith’s DNA before charging him with the murder.

Carich was beginning to say that he took the glasses back and returned to the jail, where he gave them to the jail investigator, which was when Johnson interrupted to ask the judge for permission to approach the bench. Circuit Court Michael Christofeno had the jury sent away so attorneys could discuss the issue more freely.

Johnson said Carich’s statement implied that Smith was in jail, something so prejudicial that he might not have a fair trial after the jury heard it. Johnson pointed out that they go to great lengths to ensure the jury knows that a defendant on trial is not in custody, which includes allowing the defendant and courthouse security to wear normal clothes instead of an inmate or officer’s uniform.

“We don’t believe the jury can look at him and believe he is not currently in custody,” he said. “No order you could give could unring that bell.”

Deputy Elkhart County Prosecutor Don Pitzer disagreed that Carich’s statement was prejudicial enough to warrant a mistrial. He pointed out that it wasn’t a stretch for the jury to imagine Smith might be in jail.

Christofeno agreed that Carich’s answer didn’t cross the line into risking a mistrial, but observed that it could have if Johnson hadn’t interrupted with his objection. He also noted that the instructions the jury are given before considering their verdict includes a reminder that a charge against a defendant isn’t evidence of guilt.

The judge suggested having the last question to Carich withdrawn and the answer stricken from the record, which was done after the jury was called back. He reminded jurors that they can’t give any consideration to testimony that was stricken from the record.

Carich then said on the record simply that the eyeglasses were returned to Smith.

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