Greg Gunn trial Day 2: Thick sweatshirt could have impeded Taser, pathologist testifies

Opening arguments in the murder trial of a Montgomery police officer began Tuesday.

Montgomery Officer Aaron Cody Smith shot and killed Greg Gunn in his west Montgomery neighborhood in the early hours of Feb. 25, 2016. Gunn, 58, was walking home from a friend's house when Smith randomly stopped him.

Day 1: Majority white Dale County jury to hear Montgomery officer's murder trial

Midway through the pat-down, Gunn fled from Smith who chased, tased and beat Gunn before shooting at him seven times. Five bullets hit Gunn, who died in a yard steps away from his family home. Investigators have said Smith's accounts of the shooting have varied, and that the officer had no justification to stop Gunn in the first place. Smith's defense has argued he acted appropriately for a young officer on solo patrol in a "high-crime" neighborhood.

People to know:

Gregory Gunn , 58-year-old Montgomery man who was shot and killed in his neighbor's yard in February 2016, steps away from his west Montgomery home

, 58-year-old Montgomery man who was shot and killed in his neighbor's yard in February 2016, steps away from his west Montgomery home Officer AC Smith , Montgomery cop facing murder charge

, Montgomery cop facing murder charge Deputy District Attorney Ben McGough , arguing for prosecution

, arguing for prosecution Mickey McDermott, Smith's defense attorney

Pathologist: Thick sweatshirt could have impeded Taser

Dr. Stephen Boudreau, a forensic pathologist with the Alabama Department of Forensic Sciences, testified to Gunn's autopsy, during which he detailed the injuries.

Gunn was struck by five bullets, Boudreau said. Three bullets struck the victim in his chest, one passing through a lung and stopping near his heart. The second bullet passed through his left lung and struck his liver while the third ruptured Gunn's liver, stomach and bowels.

Gunn was also struck in the right thigh and shot in the left upper thigh fracturing his hip. One of the three bullets that struck his chest first passed through his wrist shattering it before exiting his arm and passing through the chest, Boudreau said.

A laceration on Gunn's head was indicative of force from a blunt object, which previous testimony revealed was from Smith's baton.

Boudreau also noted that there were Taser barbs embedded in a "heavy sweatshirt" that Gunn wore that night.

Crime scene photos previously shown in the court, indicative that medical personnel had cut through Gunn's clothing to administer life-saving measures, appeared to show Gunn was wearing two layers under the sweatshirt, a red shirt and white shirt.

"I'd think that would impede the effectiveness of the Taser," he said of the barbs. "I could find no evidence on his body of marks from Taser barbs."

Witnesses cop close to 'hyperventilating' after shooting Gunn

Two police officers testified Tuesday that Smith asked to sit or lie down when back up arrived minutes after he fatally shot Gunn.

"He was winded like he was in shock or gasping for air," said Randall Smith, a MPD special investigator with no relation to AC Smith.

"He was distraught."

Officer Steven Warren, who was assigned to the same patrol area as AC Smith that night, said he thought Smith was "close to hyperventilating" when he arrived on scene.

Prosecutors played a police radio recording in the courtroom during Warren's testimony, as members of the jury leaned forward to make out the radio chatter among static. A voice, identified as Smith's, breaks into otherwise calm chatter to say, "Foot pursuit" to the radio operator. Moments later, Smith says, "Shots fired," before he says "Code 6," police radio code for subject shot.

As the radio recording played, Gunn's sister, Kimberly Gunn, broke down into sobs in the front row of the courtroom.

"I walked up to Mr. Gunn, he appeared to be deceased, he groaned one time and then didn’t move again," Warren said.

Randall Smith testified that he noticed slight movement and signs of breathing when he saw Gunn.

Defense: 'This young man had to make a decision in micro-seconds'

10:30 a.m.

McDermott addressed jurors for about 30 minutes focusing on Smith's attempts at non-lethal force prior to shooting Gunn.

Smith used his Taser on Gunn four times, McDermott said, to no avail.

"He had so much cocaine in his system that it didn't have an effect on him," McDermott said. "What the state hasn't told you is that officer Smith repeatedly told him to 'stop, stop, stop, police.' He chose to use the words 'stop, get on the ground.'"

When the Taser proved unhelpful, Smith moved to his baton, McDermott said.

"This bad boy doesn't stop him," McDermott says as he wielded the baton over his head. "As they're running, one of the blows strikes his head. The autopsy will show. that there are strikes all over his body. He's not out there to kill him. He's out there to arrest him and stop him."

It was only after Gunn allegedly picked up a painter's pole that Smith elected to use deadly force, McDermott said.

"He went up there to arm himself," McDermott said of Gunn running to a neighbor's house, which had a paint pole laying nearby. "The evidence will show this officer shot Mr. Gunn with his gun. One goes through his arm as he was pulling this up. This young man had to make a decision in micro-seconds."

Smith beat Gunn in back of head before shooting him

9:45 a.m.

Smith beat Gunn in the back of the head with a metal baton, contrary to his initial statements to investigators, prosecutors say.

"Over and over and over again (Smith) hits (Gunn), with this solid metal baton," McGough said. "He says he hits him in the legs, he says he hits him in the arm, but if you see the autopsy pictures, you’ll see he hit him in the back of the head with this metal baton. It split Mr. Gunn’s head open."

The state's opening arguments focused the fact that Gunn ran from Smith but never threatened him, even after he was tased and beaten.

"Greg Gunn does not turn and charge the defendant," McGough said. "He does not make a threat, he does not put up his fists. He doesn’t pick up a stick or a rock or pull a gun or knife, after being tased and beaten. Greg Gunn ran, and the defendant chased him."

McGough also walked the jury through Smith's multiple differing statements on the shooting. One occurred shortly after police responded to the scene, the second five days later. Two more occurred during a court hearing in 2018, in which Smith offered differing testimony to a defense attorney and prosecutor while on the witness stand.

The jury was also told that an autopsy found cocaine in Gunn's system after his death.

"We’re not trying to hide from that," McGough said. "We’re not going to dispute that."

But McGough repeatedly stressed that prosecutors don't believe Smith had legitimate reasons or charges to pursue Gunn in the first place, and that the officer's story "evolved" to try to justify potential harassment or even felony charges he was pursuing when he shot Gunn.

"Remember, it has to be Greg Gunn’s fault," McGough said. "You can’t kill a man because he ran."

Officer AC Smith 'nothing more than a bully with a badge'

Officer Aaron Cody Smith was nothing more than a "bully," Deputy District Attorney Ben McGough told the jury Tuesday morning in his opening argument.

"Make no mistake about it — on that day, at that time, in that neighborhood, dealing with Greg Gunn — (Smith) was nothing more than a bully with a badge. He was going to enforce his will, he was going to show his authority, to Greg Gunn," McGough said.

McGough walked the jury through the 30 minutes before Gunn's death, when he left a friend's house, where he'd gone after leaving his second job. McGough said Smith pulled up beside Gunn and demanded he stop, which Gunn was not legally obliged to do.

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"He didn’t get out of the Tahoe and say, 'Excuse me sir, I just want to check on you.' He didn’t get out and go, 'Excuse me sir, I’ve got some questions, would you mind talking to me?' " McGough said. "He didn’t do that because he had a badge and he had a gun. He immediately started barking orders at Greg Gunn, a man who had done nothing wrong and had committed no crime, a man who was bothering no one in the world."

Gunn complied when he "didn't have to," McGough said, placing his hands on Smith's fender. But soon within a pat-down, when Smith wouldn't answer Gunn's questions, Gunn "sidestepped" the officer, crossed the street and began running.

Contact Montgomery Advertiser reporter Melissa Brown at 334-240-0132 or mabrown@gannett.com.