Defendant: 'It was an accident'

An Evergreen man on trial for the murder of his girlfriend's 19-month-old daughter testified Tuesday afternoon in his own defense.

Dwayne Scott Smail, 24, told jurors he did not intend to pull the trigger on the handgun that killed Korbyn Eva May Williams, and that the shooting "was an accident."

"I didn't push no gun up in Korbyn's head. That's not how it happened," said Smail, who wept intermittently throughout his testimony.

According to Smail, he returned to his residence in the Montana Village apartments on Montana 35 in Evergreen soon after giving Korbyn's mother, Aimee Marie Williams, a ride to the Taco John's in Kalispell on March 5, 2008.

Williams, who left Korbyn in Smail's care while she worked that evening, was scheduled for a 5 p.m. shift at the restaurant.

Smail said he and Korbyn watched television on the bed until a friend, Kevin Mace, called to say he was going to stop by shortly.

Mace testified Monday he placed that call about 8 p.m.

"I fell asleep," said Smail, who had by that time consumed a few beers. "I woke up to Korbyn tapping on me."

Smail told jurors Korbyn crawled to a corner of the bed, and that's when he saw her holding the gun by the barrel.

As he reached for the weapon, a 9 mm semi-automatic Ruger pistol, Smail said he was distracted by a light outside the studio apartment - which he, Williams, and Korbyn shared.

"I pulled back on it, the gun fired. I looked over and I seen her…," said Smail.

Smail also testified he was surprised to see the pistol outside the gun safe near the couple's bed and that he had expected it to be unloaded.

"I couldn't believe what happened," Smail said. "I loved her more than anything in the world… I'd give anything to go back to that day and change things."

No one else was in the apartment at the time of the shooting. Korbyn, who was shot once in the head, died at the scene.

On cross-examination, Flathead County Attorney Ed Corrigan questioned Smail about his timeline and changing account of how the shooting occurred.

An employee at Taco John's was the first person to call authorities, at 8:17 p.m., after Smail showed up to inform Aimee what happened.

After Mace called, Smail had time to fall asleep for what he told detectives was half an hour, shoot Korbyn, throw the gun at the apartment's door, return it to the bed, pick Korbyn's body up, use a towel to try and help her, and then drive into Kalispell.

When Corrigan asked how he had found time to do all that, Smail replied he couldn't tell how long he had been asleep.

Under questioning, Smail told the jury he had been the last one to clean the gun and that he remembered it "being in the safe, but it could have been anywhere around there."

Prosecutors believe Smail handled the gun last, placed it on an exposed portion of his bed's box spring near the wall, and cocked it.

Smail initially told detectives, Mace, and Williams that Korbyn had shot herself - which he admitted Tuesday was not true. Smail told detectives in interviews after the shooting he had seen Korbyn chamber a round, an impossible task for a 19-month-old, and that she was holding the weapon by the handle when it discharged.

Smail also denied asking Mace to tell authorities he had witnessed the shooting and back his story that it was an accident, contrary to Mace's testimony.

"I don't remember saying anything of that sort," Smail said. "I don't know where that came from."

The jury of nine men and three women is expected to begin deliberating this morning after receiving instructions from District Court Judge Stewart E. Stadler and hearing closing arguments.

Prosecutors, who charged Smail with deliberate homicide in connection with Korbyn's death, allege that physical evidence at the scene fails to support the claim that the shooting was an accident.

Corrigan on Tuesday called a blood-spatter expert and several forensic evidence specialists from the state crime lab in Missoula to testify to how the shooting occurred.

Medical examiner Gary Dale told the jury the pistol was placed firmly against Korbyn's head when the trigger was pulled.

"I have absolutely no doubt this was a contact wound. None," said Dale, adding that the severity of Korbyn's head wound "far exceeds' what one would expect from a distance shot with a 9 mm pistol - even when the victim's skull has yet to fully form and hollow point ammunition was used.

"Typically, wounds of this nature are caused by much higher velocity weapons," Dale said.

However, as defense attorneys pointed out on cross examination, Dale found no gunpowder residue in the wound and very little around it - which they argued was evidence the gun was fired from a distance away.

But Dale later found gunpowder residue and gunpowder grains around the hole where the bullet entered the apartment's wall, which he called "irrefutable" evidence the gun had been touching Korbyn's head when it was fired.

The absence of gunpowder residue in the wound and the very small amount of soot around it can be explained by the type of ammunition used - which was specially designed with a clean burning and low soot-producing powder to reduce muzzle flash for use with night-vision devices.

Dale also identified abrasions on Korbyn's skin that could have been caused by the handgun.

Bill Schneck, a blood-spatter specialist from Microvision Northwest and the Washington state crime lab, told the jury Korbyn was facing west in a sitting or kneeling position on the bed between five and 12 inches from the room's north wall when she was shot. Smail, who had been reclined on the bed with his feet next to Korbyn, was leaning toward her to 'some degree" when the shot was fired, Schneck said.

The jury also heard from a fingerprint specialist, who found no usable prints, and a firearms expert, who found the gun was "functioning correctly as designed."

The gun had a trigger pull of 5 pounds when cocked and 11 pounds when it wasn't. It was about seven inches long - substantially bigger than Korbyn's hand and as long as a good portion of her arm.

If the jury returns with a guilty verdict to deliberate homicide, Smail could face up to 100 years or life in prison. He also could be ordered to serve up to an additional 10 years in prison for the use of a firearm in the commission of a crime.

Reporter Nicholas Ledden can be reached at 758-4441 or by e-mail at nledden@dailyinterlake.com