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November 9, 2009

Trial scheduled in Keene hunting fatal

Statements of accused ruled eligible as evidence

By KIM SMITH DEDAM

ELIZABETHTOWN — A trial date in connection with a Keene hunting death last year has been set for Jan. 11.

Michael M. Smith, 44, allegedly fired a bullet that struck a tree and splintered into four pieces, killing Leo Hickey on Nov. 15, 2008.

STATEMENTS USABLE
A suppression hearing held at Essex County Court on Friday ruled that statements Smith made to police that day will remain part of the proceeding, according to Smith's attorney, Public Defender Livingston Hatch.

"The judge held in the two statements: one made to Trooper Brian McCormick and another made to Bureau of Criminal Investigation detective Joel Revette. They can be used at the trial."

Prosecutors maintained the statements should remain on the record.

"Every time someone gives a statement to police, we try to use it," said Essex County Assistant District Attorney Michael Langey, who is handling the case.

Smith was indicted by a grand jury on a single count of criminally negligent homicide, a felony that carries a possible sentence of up to three years in prison.

His trial is scheduled to begin at 9:30 a.m. Jan. 11.

FEDERAL CHARGES
Smith is also facing federal charges for gun possession.

"He is restricted by federal charges for possession of a gun," Hatch explained. "He had been previously convicted of a felony in New Hampshire, stemming from a domestic incident."

According to details from the federal case, published in the New York Law Journal, Smith was indicted "as a drug user in possession of a firearm, a fugitive in possession of a firearm and a person convicted of misdemeanor crimes of domestic violence in possession of a firearm."

Smith, who is a stonemason, faces up to 10 years in federal prison on those charges.

The federal hearing, to be held in Albany on Dec. 4, has no direct bearing on the county case, Langey said.

ACCIDENT?
Hatch previously moved to have the grand jury indictment thrown out of County Court, claiming the incident was a hunting accident.

But Essex County Court Judge Richard B. Meyer upheld the charge, saying evidence "establishes that the defendant discharged his firearm through and into an area which he described as 'thick brush,' at what he thought was the back of the head of a deer, at a time when he did not know where his camouflaged companions were situated. Thus, whether the bullet which struck and killed Hickey was a direct hit, a stray or a ricochet may be irrelevant and immaterial."

Four men were in the hunting party that day, driving deer in a wooded area off Lacy Road near the junction of Bartlett Road in Keene.

Two other members of the group pushed deer toward Hickey and Smith.

All four men were dressed in camouflage clothing; no one was wearing blaze orange.

Smith told police he fired at what he thought was a deer.

"His statements have been consistent all along," Hatch said. "His story is that he shot at a deer. It is a sad situation."

Hickey died at age 35, leaving a wife and two young daughters.

Smith is out on bail with an electronic monitor, living with his mother in Keene, Hatch said.

E-mail Kim Smith Dedam at: kdedam@pressrepublican.com


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