In reversal, accused Lacon murderer decides to testify

The Marshall County jurors deciding Tony Smith's fate on first-degree murder charges had reason to be surprised when they entered the courtroom at 9 a.m. today.

After being told late Thursday morning that the defense case had ended after brief testimony by two witnesses, they learned that the 40-year-old defendant will be testifying on his own behalf.

The prosecution's case ended Thursday with the tape of a 911 call in which Judith Berchtold said she was dying after being shot by Smith. Shorlty thereafter, Smith told Circuit Judge Stephen Kouri that he had decided not to testify.

"Mr. Smith, do you need more time to decide whether you want to testify?" Kouri asked him outside the presence of jurors. "If you do, I'll give it to you."

Smith, who had often sat with his head in his hands during and after the 911 tape, repeatedly shook his head. "That's a no," Kouri said.

The jurors were released for the day after that, with instructions to return for closing arguments the next morning.

But when the judge and attorneys gathered in the afternoon to discuss formal jury instructions, Smith's lawyers said Smith had changed his mind. And after a recess to consider legal issues, Kouri agreed to allow testimony prior to the closing arguments.

"(Smith) was in physical pain because of some back problems and was not prepared to testify," said co-defense lawyer Roger Bolin. "But over the noon hour, he decided he did want to testify."

Smith's testimony now would appear to be crucial in whether Kouri will give jurors the option of finding him guilty of second-degree murder, an offense that would mean a much shorter prison term than the 45 years to life for first-degree murder. Kouri reserved ruling on that until after Smith's testimony.

Bolin said Thursday there will be no claim of self-defense as a justifiable use of force, a possibility signaled earlier by a court filing. But state law says that a second-degree conviction could result if Smith is found to have acted "under a sudden and intense passion resulting from serious provocation by the individual killed."

The climactic closing of the prosecution case with the 911 tape appeared designed to refute any contention that there had been such a "provocation" by Berchtold. It began with her saying, "My boyfriend just rammed my car," shortly after identifying herself.

"He just shot me," she said moments later.

Much of the approximately 4 1/2-minute tape consisted of Berchtold crying and screaming, and other parts carried radio traffic between police officers and a dispatcher trying to get someone to the scene. But some statements could be made out.

"He shot me a second time," Berchtold said at one point. And soon after: "I'm (expletive) dying."

"Ma'am, they should be on their way. They should be there shortly," dispatcher Charlene Phillips said near the end of the tape. "Hello?" she then said, but got no response.

Over defense objections, Kouri allowed prosecutors to provide each juror a transcript prepared by a court reporter to help follow the 911 conversation. State's Attorney Paul Bauer refused to provide copies to reporters afterward, saying Kouri had told him not to.

That matter was not discussed in open court, but Kouri did tell jurors to rely on their hearing if they perceived any conflict between the tape and transcript. The copies given to jurors were taken back after the tape was played.

"The tape and not the transcript is the evidence," Kouri said.