Agent: Officer had conflicting accounts of black man's death

MONTGOMERY, Ala. – A white Alabama police officer charged with killing a black man gave two conflicting accounts of what happened to a state investigator, the agent testified at a hearing Thursday.

Officer Aaron Smith is charged with murder in the Feb. 25 death of 58-year-old Greg Gunn. After Thursday's hearing, Judge Jimmy Pool ruled there was probable cause for a grand jury to review the charge.

State Bureau of Investigation Agent Jason DiNunzio testified Smith didn't suspect Gunn of a crime when he initially stopped him, but Smith immediately confronted Gunn and told him to put his hands on the hood of the patrol car. DiNunzio said he doesn't think Smith had probable cause to stop Gunn while he was walking on a sidewalk in his neighborhood.

Smith's attorney, Mickey McDermott, said Gunn's presence in the neighborhood at 3 a.m. was reason enough to stop him.

"He's a suspect of being in a high-crime area," McDermott said after the hearing. "He's in a high-crime area, at three o'clock in the morning, dressed in all black. Can you not draw those conclusions?"

In two interviews, Smith told DiNunzio Gunn bolted when he attempted to conduct a body search. Smith used his stun gun and a metal baton in an attempt to subdue Gunn during the chase. DiNunzio said Smith didn't turn on his body camera and his patrol car dash camera.

Gunn died yards from his front door. It was the neighborhood he grew up in. Police have said officers were aware of a rash of burglaries in the area earlier this year, but there was no special patrol deployed on Feb. 25.

Smith initially said he had struggled with Gunn on the ground before the two men separated and Gunn ran to a nearby porch, where he picked up an extendable painting stick and swung it at Smith's head, DiNunzio testified.

Smith said he ducked the swing, backed up and then fired at least seven shots, according to his initial statement.

But DiNunzio said the pole, which was found near Gunn's body, was nearly 5 feet, 6 inches long. Given the length of the pole and two support pillars on either side of the porch, the investigator said he had doubts it could have happened that way.

"I did have reservations if that was even possible, due to the porch layout," said DiNunzio, adding that is why he did a followup interview.

In Smith's second statement, he said there was no physical struggle and added he "was not sure" if Gunn swung the pole at him, according to DiNunzio's testimony.

Smith told DiNunzio that Gunn did not fight back or attempt to gain control of the stun gun, baton or gun. DiNunzio said Smith's initial interaction with Gunn wasn't "normal" for an average field interview.

"Based on the facts as Officer Smith was describing them, I don't believe he had enough probable cause to use deadly force," DiNunzio testified.

McDermott asked DiNunzio, a former police officer himself, if he would've acted differently from Smith.

"I guess my response would be if I had established probable cause," DiNunzio responded. "I've had people run from me before who I haven't given chase to."

At a news conference after the hearing, McDermott said his client had a panic attack after the shooting and his mental distress explains the discrepancies in his two statements.

"How many of us have had a car wreck and remember it one way at the scene and three days later, remember it differently?" McDermott said. "It happens. It's called post-traumatic stress disorder."

He maintains Smith was exercising his rights as a law enforcement officer to detain and question, and that Gunn should have complied.

"He (Gunn) fought by running," McDermott said.

Smith is currently free on bail.