By Michael R. Moser
Appeal of an eight-year-old murder conviction will have to wait a little longer after the judicial district's chief prosecutor agreed to step aside "to avoid any appearance of impropriety," an assistant prosecutor told the court last week.
David Dwayne Smith, a Bledsoe County resident, filed appeal of his conviction in 2006, but for a variety of reasons including the changing of attorneys, the appeal has never been heard and remains on the Criminal Court docket.
Smith and three others were originally charged in the July 2004 shooting death of Donnie Elbert Stone, 47, who was found shot in the head as he slept on his couch in his Lantana Rd. home.
It only took a Cumberland County jury 30 minutes in July 2004 to find Smith, now age 39, guilty of first-degree murder and conspiracy to commit first-degree murder.
He was given the mandatory life sentence on the first-degree murder charge and later was sentenced on the conspiracy charge.
District Attorney Randy York was one of the defense attorneys involved in the case that began with four defendants and ended up with two actually going to trial. York represented Mitchell Hunter Oakes who, in the midst of the trial, suddenly copped a plea, trading his testimony for a lighter sentence.
One defendant early in the case had the charges dropped against him when investigators learned that he had erroneously been identified by witnesses and was not involved.
A second defendant, Noel Anthony Underwood, cut a deal with prosecutors in exchange for his testimony. When Oakes suddenly turned state's evidence mid-way through the trial, it left Smith to face a jury alone.
Cookeville attorney Douglas Turner filed a motion on behalf of Smith, asking the District Attorney's Office to step aside on the appeal, citing a conflict of interest because of York's earlier involvement in the case.
Judge Leon Burns said the motion "raises a good question."
While not admitting a conflict exists, Deputy District Attorney Gary McKenzie said York felt it was best to step aside so that the appeal can be heard as quickly as possible and so his presence in the case will not be brought into question later.
Burns accepted an agreed order and urged that the process to find a new prosecutor begin as soon as possible.
McKenzie explained that the state District Attorney's Conference would name a new prosecutor — mostly likely from an adjacent judicial district — and that his office would immediately meet with the prosecutor to turn over all files in the case. He said he expected a new prosecutor to be identified by the end of next week.
Once that is done and the new prosecutor is ready to proceed, the case will be set for a hearing on Smith's appeal.