A jury Monday night failed to agree on whether Allen Dale Smith was guilty of the 2005 felony murder of 77-year-old Clarence David Boose.
Douglas County District Court Judge Michael J. Malone declared a mistrial at the Douglas County Courthouse, but he scheduled a retrial to begin at 1:30 p.m. Wednesday.
The jury was unable to determine whether Smith was telling the truth when he says he wasn't present April 29, 2005, when Boose was shot to death in his rural Lecompton home during a burglary. The jury forewoman said it was "hopelessly deadlocked and unable to make a decision in this matter."
"It was very hard with the evidence we had," said juror Judy Gragg, Lawrence.
Smith was also charged with aggravated burglary.
While Smith claimed he was not present when Boose was shot, his cousin Leonard Price not only testified that Smith was with him during the burglary at the Boose home but also that Smith was the gunman who fired the fatal shot. Price pleaded guilty to felony murder in the same case several months ago.
Smith, 36, and Price, 46, both from Topeka, are already serving prison time for convictions in Pottawatomie County stemming from a burglary and shooting.
"You don't have to like Leonard Price to believe him," Chief Deputy District Attorney Amy McGowan said during her closing statements to the jury.
Price had little to gain by pinning the shooting on Smith, McGowan said. In a plea agreement, the district attorney's office said it would recommend to the judge that Price's sentence in the killing run concurrently with his 13-year-sentence in the Pottawatomie case. Price will be formally sentenced Aug. 20; he is facing 20 years to life in prison.
Price said during his testimony that he doesn't expect to leave prison because he doesn't think a parole board will ever allow it.
McGowan said Smith's alibi in the case - that he was baby-sitting - was flimsy and that his witnesses were weak. She also said that Smith, following his arrest in the Pottawatomie case, gave investigators wrong information in talking about other cases and trying to link Boose to them.
But Tom Bartee, Smith's attorney, said it took several months after Price was arrested before he came up with a story that investigators jumped on. He had told them other stories investigators couldn't corroborate.
"Finally, he gave them something they were satisfied with," Bartee said of Price.
Smith, who was known to sign his real name to stolen checks and cash them, wasn't sophisticated enough to come up with an elaborate alibi, Bartee said. He also said that Price had committed other burglaries without Smith's help.
Both Bartee and McGowan complimented the jury on its work.
"They did the best they could, and I appreciate their hard work," Bartee said. He said the ruling was "disappointing."
"Everybody would like an outcome," he said.
Boose's family members declined to talk to the media following the ruling, as they comforted each other outside the courtroom. Smith hugged his attorneys after the jury was dismissed.