It appears David Dewayne Smith's effort to have his conviction tossed out, or at the least, a new trial, is headed for the Tennessee Court of Criminal Appeals after Cumberland County Criminal Court Judge Leon Burns rejected both motions during a hearing Friday morning.

Burns told defense attorney Douglas Fields of Crossville he has 30 days to appeal Burns' ruling.

Smith was on trial this summer along with co-defendant Mitchell Hunter Oakes for the execution murder of Donnie Elbert Stone. Stone, 47, was shot in the head as he slept on his couch in his Lantana Rd. home in July of 2004.

Fields had filed the motion for a new trial based on 16 issues concerning the jury trial and filed a separate motion seeking his client's acquittal, claiming insufficient evidence, because the verdict was the product of uncorroborated accomplice testimony and because evidence did not raise to the level above reasonable doubt.

"Nobody can say the car was at the scene, that it was tied to David Smith except the two accomplices ... the gun is tied to Hunter Oakes. No one ties David Smith to that gun except for Hunter Oakes ... out of his own hands and into somebody else's."

Fields in his motions also questioned plea bargain agreements, especially the one with co-defendant Mitchell Hunter Oakes, who turned states' evidence in the middle of the trial. Specifically, Fields claims that the state failed to make full disclosure of its plea agreement with Oakes.

Burns noted that he was "not convinced" that his ruling allowing the testimony of Oakes should be changed, and that he found no proof of prosecutorial misconduct.

In the motion for a new trial, Fields argued that the court was in error when it excluded testimony of the victim's cousin, Juanita Stone, and centering on her meeting with the victim just hours before he was killed. Fields claims Stone would have testified that her cousin told her to not let his estranged wife get away with killing him.

Fields also claims the court errored in not allowing the testimony of Nita Thacker who would have testified that the estranged wife displayed before her a handgun that the estranged wife allegedly claimed would be used to kill Stone.

In the motion Fields said he should have been granted a mistrial or a continuance when the plea agreement was struck between Oakes and the state.

Assistant District Attorney General Gary McKenzie said that evidence was sufficient and that state law did not require that a conspiracy be spoken. Actions of a group can be interpreted a conspiracy.

As for Oakes testifying against Smith, the prosecutor responded, "How do you get a conviction without someone involved telling what they know?"

Fields is expected to appeal the decision.