Defense witness testifies at trial
Case may go to the jury Thursday for a final decision

By Katie Pizza
Argus Observer
Wednesday, June 11, 2008 10:16 AM PDT

Payette — A bar patron who claimed he was near a deadly 2006 shooting in a Fruitland tavern testified in the murder trial of Hector Brito Almaraz in Payette County court Tuesday.

Almaraz was arrested and charged with first-degree murder in connection with the shooting death of Gabriel Flores, 28, at the Club 7 bar in April 2006.

Mike Smith, a witness for the defense, testified he was within arm’s length of Almaraz at the time of the shooting and did not see him with a gun. He also said he did not hear a gun shot originating from Almaraz’s direction, but rather believed it came from the people in the midst of the fight.

“I heard a gunshot,” he said. “You hear the shot and it’s like a surprise because it happened so fast. It sounded like a firecracker, man. That’s what it sounded like.”

He then said he saw Gabriel Flores come towards him and his group of friends.

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“Everybody was like shocked,” Smith said. “Then we see the guy in the jersey coming towards us.”

Smith said he originally believed Flores was headed toward the back entrance of Club 7 before he collapsed on the ground.

“I went down to touch him and I was like ‘hey man, you all right?’” Smith said.

He testified he originally thought Flores was drunk, but changed that notion when he became aware of his injury.

“I felt something warm on my hand,” he said. “I looked down and saw blood on my hand. He said ‘I got hit.’”

Smith said he then called a bar employee over and requested an ambulance. Defense attorney Rolf Kehne asked his next course of action.

“I left,” he said. “I called a limo and left. They cleared everybody out.”

Smith said a bouncer asked everyone to leave, which caused him to get into the Club 7 limousine parked in front of the establishment.

Smith also described the flood of people who left the establishment after the shooting.

“People ran out as soon as the shot went off,” he said. “It was unexpected. People near it ran out and I guess word got out. People were just pretty much leaving.”

One of those people, Smith testified, was Almaraz, who he said exited the building around the time he did. Smith said he knew Almaraz as Puppet and had met him once before the shooting.

“I was still a student here at TVCC (Treasure Valley Community College) when I met him,” he said.

Smith said he was not friends with Almaraz, but knew his face when he saw him at the bar.

“He was to the left of me,” he said. “He was sitting right there. Right to the left of me.”

Kehne asked if Smith meant standing rather than sitting. Smith said yes.

“Are you sure you were looking at Puppet when you heard the shot?” Kehne asked.

Smith said yes. He then answered that he did not see a gun in Almaraz’s hand or have any reason to believe Almaraz was responsible for the noise Smith originally believed was a firecracker. Kehne then asked how confident Smith was in his assertion.

“I was close enough to see him,” he said. “I was close enough I could have reached out and touched him if I wanted to.”

As he continued to view a surveillance tape taken from the scene, he spoke more about where the gunshot noise came from.

“I can’t tell you where it came from, but it was in that vicinity where the crowd was,” he said. “It was in that vicinity, near that far end.”

Earlier in his testimony, Smith said he was gone by the time police arrived and has not been questioned by law enforcement.

Kehne then asked him about a diagram Prosecuting attorney Brian Lee drew of the bar. Smith had previously initialed and circled where he believed the shot came from.

While Smith said he believed he drew the circle as close as he could to where the incident occurred, he answered pointing out the area in the video was much easier.

“Yeah,” he said. “I pretty much remember it that way.”

Prosecuting attorney Anne-Marie Kelso then questioned Smith.

“You were roommates with Mercedes Grant,” Kelso stated. “Hector’s girlfriend.”

Smith agreed with the assertion. He also agreed he was and continued to be good friends with her.

Kelso then questioned Smith about statements he had made to her on Monday regarding the man he testified was Almaraz.

“You said you watched the fight with him,” she said. “You said he stayed with you and wasn’t in the fight.”

Smith agreed with the assertion. He also agreed with Kelso when she said the man he believed to be Almaraz casually left after a bouncer told everyone to leave.

“We were kicked out, the bouncer told us to leave,” Smith said. “I tended to the victim, then they told us to leave.”

Smith said he left the scene five to seven minutes after the shooting. Kelso then asked if he was sure he saw Almaraz leave a couple of seconds before him.

“Yes, he was closer to the door than I was,” he said. “He was standing right to my left. He was right in my sight.”

The defense took a short break to speak with Smith, then began their line of questioning. Smith said at that moment he found the video confusing.

“They’re saying ‘we think he’s the first one out the door,’” he said, referring to the prosecution.

With his testimony concluded, Smith was dismissed. Defense attorney Van Bishop said the defense had no more witnesses to present at that time and would rest. Judge Gregory Culet then asked jurors if they would be willing to stay as long as necessary when court reconvened in order to hear the rest of the testimony. The jurors complied.

“We’re a little bit ahead of where we expected to be,” Culet said. “The defense thought they would be finished tomorrow. They finished today.” Culet said all testimony and closing statements are slated to conclude today.

“When Thursday rolls around,” he said. “It goes to the jury.”