Tenuous Witness Cred Erodes State’s Case Against Tree

Paul Mann
Mad River Union

HUMBOLDT – The heroin addictions and resulting memory loss of three prime witnesses in the Bodhi Tree triple murder trial are chipping away at the state’s charges.

Rhett August, the one victim to survive last spring’s shooting binge in Eureka and Arcata, remains unable to identify who shot him the night of May 15, 2013, when he answered the doorbell and stepped outside his Eureka apartment.

The prosecution alleges Tree attempted to murder his friend of some four years in retaliation for a beating Tree suffered at the hands of August’s friends in the alley behind August’s apartment, several blocks from Eureka High School. The beating occurred in two bouts in quick succession in the early evening of May 13, two days before August was shot.

August told jurors he did not join in the attack at first but, in his words, “egged it on” when it erupted a second time.

Until last fall a heavy drinker, heroin and marijuana addict and drug dealer, August appeared at the trial for the first time last week and could not pinpoint his assailant’s identity, gender or skin color. The evening was dark, he remembered, and the shooter emerged suddenly from what August described as a crouching position in the shadows lying across the threshold of his apartment. The muzzle flames were what he saw for certain.

Prosecutor Elan Firpo, unable thus far to establish the identity of August’s assailant in court, is also at pains with two more of her key witnesses. Like August, Sean Butler-Smith and Charles Crow have also suffered heroin-induced memory losses.  Also like August, Butler-Smith is on felony probation, in his case for the attempted armed robbery in the middle of last year of the former Noodle House in Arcata.

Testifying days before August, Crow and Butler-Smith revised, recanted or contradicted prior statements they delivered in the preliminary hearing September 27th or in prior investigative interviews with detectives.

In their vacillating responses, the state’s three witnesses appeared to bolster one of the principal claims of defense attorney Casey Russo since the trial opened May 14: their memories and their credibility are prima facie unreliable.

Again and again, Crow and Butler-Smith told the jurors in separate appearances, “I don’t remember” or “I don’t recall” when questioned about various aspects of the attempt on August’s life. Like August, they also blamed their forgetfulness on what they considered “the long period of time” that had passed since the homicides.

In extenuation, all three underlined that heroin addiction results in memory loss. The haze lifts gradually in recovery, which shored up their recollections as the start of the trial approached, they added. Butler-Smith said he had been drug-free since last summer and August reported being clean since last fall.

One of the linchpins of Firpo’s attempted murder charge against Tree is that Crow and Butler-Smith were sitting in Crow’s parked Land Rover near the Eureka apartment where Tree allegedly shot August. Crow had picked up Butler-Smith and Tree in Arcata’s Northtown when Butler-Smith asked Crow for a ride to Eureka in exchange for either cash or drugs. Crow said he needed gas money and Butler-Smith sought either drugs or the money to buy them, heroin in particular, as he was getting high regularly. Evidently Tree promised one or both men the deal in return for a ride to August’s apartment. As Crow headed out of Arcata, however, neither he nor Butler-Smith knew Tree’s destination, according to their testimony. Crow lamented he had failed to ask Tree to see the money up front before departing.

Butler-Smith and Tree were recent acquaintances following the latter’s release from prison on felony probation in the weeks immediately before the murders. Butler-Smith stated repeatedly that he wanted to escape Tree and avoid all contact with him but Tree was tenacious in tagging along, including at alcohol-, marijuana-  and ecstasy-laced parties in Arcata.

Crow and Butler-Smith had been classmates in grade school, but according to Crow they rarely saw each other in adult life. The two came across one another that evening in Northtown by pure happenstance and they have diametrically opposed views of their relationship. Crow testified to his long-held dislike of Butler-Smith, who allegedly stole marijuana from him when the two were teenagers.

Yet Butler-Smith testified they were friends and he spoke of Crow in amiable tones. Either Butler-Smith was unaware of, or oblivious to, Crow’s aversion.

In any event, the discrepancy was characteristic of last week’s four days of testimony by key witnesses.

Butler-Smith told jurors he heard four gunshots in quick succession emanating from the alley behind August’s apartment on May 15, 2013. He and Crow were idling in the vehicle after Tree left the back seat and approached the building on foot.

Butler-Smith was unable to say whether he did or did not see Tree’s gun when the suspect got back into the car. In contrast, in the wake of the two subsequent gunshot slayings in Arcata of Christina Schwarz and Alan ‘Sunshine’ Marcet, with which Tree is also charged, Butler-Smith had ample opportunity to identify the alleged murder weapon, albeit in far different circumstances.

Butler-Smith described Tree as breathless from dashing back out of the alley and uttering expletives as he hurried into the rear seat of Crow’s car. Butler-Smith was inconsistent about whether the vehicle’s dome light was on or off and whether music was playing while he and Crow waited.  Previously, Butler-Smith had claimed the gun was visible because the dome light was on. But Crow, the driver, claimed the light didn’t work and in any case, Butler-Smith was on heroin as well as ecstasy last spring.

For his part, Crow told jurors his radio didn’t work, raising another conflict. At last September’s preliminary hearing, Butler-Smith claimed he and Crow were “listening to music and chillin’” before the gunshots rang out and Tree returned to the Land Rover.

As August took the stand late last week, he too found himself at odds with his statements for the preliminary record. At that time, he testified he had gone back upstairs to his apartment when the second round of Tree’s May 13 outdoor beating took place in the alley. Yet he insisted to jurors last week that he was present in the alley at both bouts of the fight, although he played no physical part in either one.

Friends attending a get-together May 13th in his apartment ushered Tree outside and pummeled him for allegedly groping and putting his arm around one of two women present at the gathering. According to August, Tree persisted when she rebuffed him. That led the men in the group to escort Tree downstairs and into the alley, where they assaulted him in retaliation.

August and the two women watched as the beating proceeded, August testifying amid some confusion that he had urged the parties to stop in the first confrontation, but encouraged Tree’s beating when it resumed. He was forced up against a truck in the adjoining street and kicked and punched in the face, head and ribs, August told the court. Tree limped away from the scene.

At no time did Tree attempt to defend himself or strike back at his assailants, August testified. All had been drinking alcohol and smoking marijuana before the confrontation except Tree, who was on felony probation and had declined to smoke, August added.

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