Warner Robins woman testifies she intended to end her own life instead of her husband's

bpurser@macon.comAugust 6, 2013 

CORRECTION: An earlier version of this story contained an error. Brian Smith was killed with a semi-automatic .40-caliber handgun. A corrected version appears below.

PERRY -- On trial for killing her husband two summers ago, Ebony Passion Smith testified Tuesday that she took his handgun from the top dresser drawer not with the intention to kill him but to end her own life.

Smith is on trial in Houston County Superior Court for the July 15, 2011, slaying of Brian Smith in the couple’s Jay Drive home in Warner Robins. Her attorney says that although she killed her husband, she is not guilty of murder.

“I wasn’t even thinking,” said Ebony Smith, who testified that she was “floating” on pills she took to get up the nerve up to kill herself.

As she stood in the door of the hallway bathroom with the gun at her side, Smith kept asking her husband where he’d taken their daughter, who was 4 at the time. He didn’t answer immediately and finally told her he’d dropped their daughter off, she recounted to jurors Tuesday. Ebony Smith said she figured their girl was at the home of a woman she suspected him of dating.

“It made me feel like he was trying to take my baby and hide her from me,” Smith testified.

Smith said she shot her husband with his semi-automatic .40-caliber handgun, inflicting multiple gunshot wounds. She said she took more pills to end her life but couldn’t shoot herself because there were no bullets left in the gun. The gun magazine had held 13 bullets.

Smith, dressed in a gray business suit, testified Tuesday she had asked her husband for a divorce and wanted him to pay for it. She said she wasn’t bothered by the divorce but was surprised that Brian Smith sought sole custody of their daughter. The divorce papers were served a few hours before Ebony Smith shot him to death.

Assistant District Attorney Clif Woody questioned Ebony Smith about the divorce papers -- which he noted did not state that Brian Smith was seeking sole custody. He asked her if a reasonable course of action would have been to seek the advice of an attorney about custody.

Attorneys also asked Smith more than once why she shot her husband, but she wasn’t always able to give an answer. She kept her head down for most of her testimony and barely spoke barely above a whisper. She sobbed when recounting the shooting.

She was the last witness to testify Tuesday, with both prosecution and defense attorneys resting their case. Closing arguments are expected Wednesday morning, followed by instructions on the law from Judge Edward D. Lukemire on malice murder, felony murder and other charges against her.

Earlier Tuesday, jurors heard testimony about the discovery of the body, viewed autopsy photos and watched video of the crime scene.

Former Warner Robins police Sgt. Matt Moulton, among the first officers on the scene, testified that he found a lethargic Ebony Smith hidden under covers on a bed. She had emptied several pill bottles, he said.

“She told me she was very mad and she was tired of being lied to and cheated on,” Moulton told jurors.

But when an audio recording of his conversation with Smith was played by the defense, Ebony Smith was not heard making that statement. Moulton said not all of their conversation was recorded because the officer who had the microphone was in and out of the bedroom while Moulton talked with Smith.

Dr. James Whitaker, Houston County medical examiner, testified that Brian Smith was “hit nine different times” based on entry wounds. Smith was shot in the abdomen, chest, right arm and right leg, Whitaker said.

Whitaker’s testimony included the introduction of graphic autopsy photographs of the victim’s body. When the photos were first shown, Ebony Smith started sobbing, prompting Judge Lukemire to call a recess.

Police officer Juan Herrera, a crime scene investigator, testified about the semi-automatic Glock handgun used in the slaying that was recovered in the three-bedroom home. Five of the bullets were not recovered.

Jurors watched a video that showed the victim’s body on the bathroom floor. Herrera said there were numerous shell casings and a few bullets recovered nearby. One of the shell casings was found in the bathroom sink, and some of the bullets traveled through the bathroom wall into the wall of the master bedroom, Herrera said.

Houston County sheriff’s Deputy Robert Davis testified about serving Ebony Smith with divorce papers the day Brian Smith was killed. He said he asked her if she was expecting divorce papers and she said, “No.”

Davis said Ebony Smith was “pretty calm” when she received the papers. But after defense questioning, he added that she also did not read the papers in his presence when they talked briefly at her front door.

Family members of Ebony and Brian Smith were in the courtroom Tuesday.

To contact writer Becky Purser, call 256-9559.

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