ELIZABETHTOWN - Michael Smith is scheduled to stand trial Jan. 11 for fatally shooting a hunting companion in the town of Keene in November 2008.
Meanwhile, Essex County Court Judge Richard Meyer ruled Friday that statements Smith gave to state police after his arrest along with his rifle and other physical evidence taken from his vehicle can be used as evidence during the trial, according to Essex County Assistant District Attorney Michael Langey.
"State Police testified and the judge held that all the evidence would be admissible at trial, denying the suppression motion by his attorney," Langey said.
Smith, 44, of Lake Placid, was hunting in the woods off Lacy Road with his brother Mark Smith, Kevin Straight and Leo Hickey when he fired at what he says he thought was a deer. Polices said the bullet struck Hickey in the head and killed him.
The four men were all wearing camouflage but no hunter's orange. Hickey, a 35 year-old father of two, was a Keene native but was living in Elizabethtown at the time of his death.
Smith was arrested and later indicted on a charge of criminally negligent homicide, a felony. If convicted, he faces a maximum of one to three years in prison.
Langey said he feels prosecutors have a strong case and enough evidence to get a conviction.
Essex County Public Defender Livingston Hatch, Smith's attorney, described the incident as a "terrible accident."
"He's very sorry about it," Hatch said. "The facts are quite simple. There was no alcohol involved, and it's a fairly straightforward case."
Hatch said the bullet from Smith's gun ricocheted through several trees and that Hickey was killed by pieces of shrapnel.
"It's not a direct hit," he said. "How does that make it negligence? It has to be a gross deviation from standards, and I don't think a jury would say it is."
Hatch also said he intends to argue that Smith wasn't the only one who should have been wearing blaze orange.
"When you take your hunter safety course, they warn you about that," he said. "If you go into the woods completely camouflaged without (wearing) any orange, you assume some responsibility, too."
Last month, Judge Meyer rejected an attempt by Hatch to dismiss the indictment, finding that Smith, as a hunter, "had a duty to properly identify his target and everything in the area" before firing his rifle. Meyer left it to a jury to determine whether Smith's actions were criminally negligent.
Smith could face a longer prison term, up to 10 years, on a series of federal charges including possession of a gun in violation of the terms of his domestic violence conviction in New Hampshire. He also was wanted on a federal charge of illegally possessing prescription drugs in New Hampshire at the time of his arrest in New York.
Federal prosecutors have indicted Smith as a drug user in possession of a firearm, a fugitive in possession of a firearm and a person convicted of misdemeanor crimes of domestic violence in possession of a firearm.
Contact Chris Knight at 891-2600 ext. 24 or firstname.lastname@example.org.