SCHENECTADY -- A man charged with murder got an unexpected note in the mail -- a jury duty summons for his own trial in Schenectady County Court.

On Tuesday morning with his trial set to start, Visiting Schenectady County Judge Richard Giardino wisecracked that the defendant, Derrick C. Smith, told him he was more than willing to be part of the jury pool, and if selected could be fair and impartial.

Smith, who was seated in court with his defense attorney, Mark Gaylord, when Giardino mentioned the matter, nodded and cracked a smile when the judge mentioned the matter. Gaylord confirmed his client had received the jury letter.

Commissioner of Jurors Hope Splittgerber said that in her 28 years on the job no defendant had ever receive a summons to be a juror at his own trial. Smith was Juror 171.

"I have never had this happen," said Splittgerber.

She said Smith had received the jury summons at his home in late August after he failed to respond to a juror questionnaire sent to him under a policy designed to save the court from the need to mail out multiple questionnaires.

"When people do not send (the questionnaire) back, we automatically qualify them," Spittlgerber said, "and when they come in, they have to tell us why they didn't send it back."

It was a moment of levity in an otherwise grim case of Smith and Charles Louviere, who are accused of killing Michael Deveaux Jr. after fight at a city bar in the early hours of June 27, 2010.

In the trial's opening arguments, the prosecutor told jurors that as Deveaux lay dying on a city street, Smith stood over him at and pumped two more shots into his chest.

"Michael Deveaux is the man Derrick Smith robbed of his life," Assistant District Attorney Peter Willis.

He said Smith, "finished the job" after Deveaux was shot three times in the chest by Smith's friend, Charles Louviere, inside the El Dorado bar on Crane Street.

The pair, reputed members of the Bloods street gang, had targeted Deveaux, 21, and used the same .22 caliber revolver to slay him.

"The proof will show that Charles Louviere fled to an area where he gave Derrick Smith the gun, and he finished the job," Willis said.

Deveaux, managed to draw his weapon, and return fire, before stumbling outside the bar where his two cousins attempted to get him into a car and to the hospital when Smith shot him, according to Willis.

Deveaux was driven to Ellis Hospital's McClellan Street campus in a car that crashed through the sliding doors of the ambulance entrance. He was pronounced dead at the hospital.

Gaylord did not present an opening argument for his client who faces 25 years to life in prison if convicted of second-degree murder and two weapons offenses.

Earlier Tuesday during a pretrial hearing, the judge heard arguments from Gaylord and Willis on whether the grand jury testimony of a witness should be allowed into the trial because the witness, Lafanetta Bethea, subsequently refused to take the testify at the trial for the prosecution. At issue was whether, Smith sought to intimidate her.

To prove that he did, Willis himself took the stand and was questioned by Chief Assistant District Attorney Philip Mueller about his efforts to find Bethea and how over time she went from being a willing witness to an obstinate one.

Additionally, the prosecution played recorded phone calls between the incarcerated Smith and his girlfriend. In one, he boldly proclaimed that "if Lafanetta don't come, I go home."

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Willis said that in the aftermath of the killing, Bethea had identified Smith, whom she knew through her sister, as one shooter and later picked Louviere from a photo array and surveillance footage as the other gunman. Willis said she later told relatives she didn't want to testify because she feared for her safety and that of her 3-year-old son, and efforts in the days leading up to the trial by prosecutors with the help of other law enforcement and social service agencies to find her proved futile.

Gaylord, Smith's attorney, dismissed the prosecution's assertions that his client was the reason Bethea was now refusing to testify and had disappeared. He countered that the threat by the District Attorney's Office that she would be thrown in jail for a year, the stigma of being labeled as a snitch and talk about a contract on her life were the real reasons she changed her mind about taking the stand for the prosecution at the trial.

"They have not met their burden of proof and have not presented any evidence that Mr. Smith was the motivating factor behind the girl's fears," Gaylord argued. "It was all generalized that she felt threatened."

Giardino sided with the prosecution and ruled that jurors could hear Bethea's grand jury testimony, saying Smith had the "motive and the opportunity" to intimidate Bethea.

That decision prompted Fred Rench, the defense attorney for Smith's alleged accomplice, Charles Louviere to, ask that his client be tried separately, a request that was granted.

Testimony will continue Wednesday in Smith's trial, and when it's done, Louviere's trial will be scheduled.

Reach Paul Nelson at 454-5347 or by email at pnelson@timesunion.com