Suspects in cold case auto shop slaying can’t get a fair trial now, defense argues

Attorneys for two suspects charged in Kirby Smith’s 2004 fatal shooting are arguing their clients can’t get a fair trial because prosecutors waited too long to try the case.

During a hearing Wednesday before Muscogee Superior Court Judge Gil McBride, the attorneys representing Rebecca Haynie and Donald Keith “Bull” Phillips had an expert in cyber security testify cell phone records crucial to the defense have been lost or purged since Smith’s body was discovered around 8 a.m. March 4 in Kirby’s Speed Shop, 1438 Jacqueline Drive, where police believe he was shot about 9 p.m. the night before.

Haynie was Smith’s estranged wife at the time, and they were going through a contentious divorce. Police allege Phillips was her lover, who conspired with her to kill Smith.

They’re set for trial Sept. 17. But their attorneys argue their defense has been prejudiced, or sabotaged, by the prosecution’s delay in bringing the case to trial, as critical evidence has been lost over the ensuing years.

Their ability to defend their clients now is so hampered that McBride should dismiss the indictment charging Haynie and Phillips with malice or intentional murder, they said.

Prosecutors countered that some delays were requested by the defense, not the prosecution, and that the defense was calculating the delay from the date of Smith’s death, not from when Haynie and Phillips were arrested by cold-case investigators on June 5, 2014.

Defense attorneys requested about a year’s delay after that, so the prosecution is accountable for a delay of only about three years, not the 14 years since Smith’s homicide.

Haynie is represented by attorneys Foss Hodges, Jason Sheffield and Erin King. John Martin represents Phillips. The prosecutors are Chief Assistant District Attorney Al Whitaker and Assistant District Attorney Veronica Hansis.

The defense focused much of its argument Wednesday on cell phone records, calling witness Jim Persinger of the firm PM Investigations Inc., which specializes in digital forensics and cyber crime.

Examining phone evidence in the case, Persinger said critical data needed to validate the information was missing, including service calls and maintenance records on the cell towers involved. He said the data is unreliable without that.

Some of the missing information is needed to establish the location of the cell-phone user, and which time zone the service provider used to designate the times calls were made, particularly in the Columbus area, on the border between the central and eastern time zones.

Martin had Persinger testify that such information was subpoenaed March 9, 2004, and again on May 28, 2014, before Haynie and Phillips were arrested. The data was available then, Persinger said.

But when Martin tried to get the data again this year, it had been purged.

The defense also questioned police Sgt. Matt Blackstock, who in 2004 was the lead investigator in Smith’s slaying.

Detectives suspected Smith was killed by someone he knew and allowed into his auto shop, because they found no evidence an intruder had broken in. Police also found no evidence the killer wanted money. All that was missing was a gold necklace Smith wore. He still had cash in his pocket, and more money was in a cash box in the shop.

Smith, 50, was shot once in the torso and again in the head with a Hi-Point 9mm pistol.

Hodges asked Blackstock whether police pursued other suspects, noting that on the night Smith was killed, he had been on his shop computer visiting the online dating site Match.com, and had communicated with potential suitors whom police could have tracked down.

Hodges also questioned the sergeant about the shifts Haynie and Phillips worked at the time Smith was slain. Both should have been at work, and police could have confirmed that by examining their employment records and questioning coworkers, Hodges said.

Hodges also went through a list of potential witnesses in the case whose testimony no longer is available because they have died since the homicide.

Blackstock testified that police identified Haynie and Phillips as suspects in 2004, but the investigation languished until cold-case detective Randy Long revived it in 2013. When Hodges asked whether police had any new evidence then, Blackstock said the difference was that police took a renewed interest in inconsistencies in statements the suspects gave in 2004.

Wednesday’s pretrial hearing was the second in a set, the first having been held July 19, when Sheffield, Haynie’s other lawyer, stressed his belief that police in 2004 had multiple suspects in Smith’s homicide, but focused on Haynie because her divorcing Smith gave her “the most obvious motive.”

A third pretrial hearing is set for Aug. 15.

Haynie now is 48 years old, and Phillips is 39.

This story was originally published August 1, 2018 at 6:09 PM.