GREENFIELD — Requests for a change in venue and limits on courtroom use of photos of victims’ bodies were among the motions filed Tuesday in a double homicide case.
Defense lawyer Mary Ann Stamm, who is representing Brittany Smith, raised objections to certain aspects of co-defendant Joshua Hart’s trial before Judge John Agostini, who is presiding over the Superior Court case in the Franklin County Justice Center.
Smith, 29, of Athol has pleaded not guilty to the murder of Thomas Harty, 95, and the fatal wounding of his wife, Joanna Fisher, 77, during an Oct. 5, 2016 invasion of their 581 East River St., Orange, home.
Hart, 25, of Athol was convicted of first degree murder and other charges last week, and faces a mandatory minimum sentence of life imprisonment without the possibility of parole.
One of Stamm’s concerns was the prosecution’s use of a photo of the crime scene during the Hart trial. Stamm argues the photo, which shows Harty’s body in his living room reclining chair, was used too frequently in the Hart proceedings.
“It is a photo that is emotional and is gruesome and invites sympathy, and I ask that its use be limited,” Stamm said.
Stamm does not object to the use of the photo entirely, but wanted to make sure the photo of Harty is not left on the courtroom television monitor for extended periods of time.
During the Hart case, the jury saw the photo several times. Extended viewing of the photo could make the jury prejudicial against Smith, Stamm said.
Prosecutor Jeremy Bucci of the Northwestern District Attorney’s Office has indicated much of the evidence presented in the Hart case will be presented again in Smith’s case.
Agostini, who did not rule on the motions Tuesday, indicated his opposition to “any photograph” being displayed too long, and told Stamm he does not allow photographs to remain on the screens while they are not being discussed.
“We will be vigilant in that regard,” Agostini said.
Other motions from the defense included a change of venue for the trial, which Stamm did not elaborate on, and a motion to limit the testimony from the family members of the victims.
Fisher’s son and daughter and Harty’s daughter testified briefly at the beginning of Hart’s case. Agostini expressed his belief that the family testimony was limited, and that the prosecution is allowed to call family members to the stand to “lend a human face” to the victims.
Stamm disagreed.
“Me, personally, I thought there was a lot of that testimony in the first case,” said Stamm, adding that testimony about Harty being an avid hiker in his old age is “not relevant.”
“They do more than lend a human face to the victims. What they do is garner sympathy, which is prejudicial to my client’s case,” Stamm said.
Agostini said he expects objections to such testimony during Smith’s case, and that the court will rule on a “question by question basis.”
Stamm also filed motions to preclude information relating to crimes Smith had allegedly committed before the home invasion, including two instances of breaking and entering in Athol that Smith and Hart were being investigated for.
She also objected to the use of part of an interview Smith gave to police in which Smith talks about debt related to drug dealing and usage.
Bucci argued in favor of using that part of the audio-recorded interview. He said debt owed and drug usage is important in establishing the defendants’ motive.
The prosecution alleges the defendants engaged in a “joint venture,” during which they robbed and murdered the victims, taking their car in an attempt to flee Massachusetts and start a new life elsewhere.
The defendants had been arrested two nights before the home invasion, and the prosecution alleges Smith, a heroin addict, and Hart, who had warrants for his arrest out of Pennsylvania, wanted to escape potential court-ordered drug addiction treatment and incarceration, respectively.
They were caught in Rockland County, Va., after being tracked by Massachusetts police. A Walmart employee recognized Hart from a wanted picture, and waived down nearby police. Hart and Smith then gave audio-recorded interviews to both Massachusetts and Virginia police — Hart confessed to the murders in the interview, and Smith confessed to some of the crimes, including attacking Fisher.
Jury selection for Smith’s case is expected to begin April 23.
Reach David McLellan at dmclellan@recorder.com or 413-772-0261, ext. 268.