CHRISTIANSBURG – Former Virginia Tech football player Isimemen Etute was found not guilty Friday in the beating death of Jerry Paul Smith following a three-day trial in Montgomery County Circuit Court.
Etute had faced a sentence of five to 40 years if convicted of second-degree murder. The jury began deliberations at 3 pm and returned with the verdict at approximately before 6:30 pm
Immediately afterward, the victim’s family quickly left the courtroom. The prosecuting attorney, Patrick Jensen, declined comment, referring questions to his boss, Commonwealth’s Attorney Mary Pettitt.
Etute, then an 18-year-old early enrollee at Virginia Tech, fatally beat Smith on May 31 at the Blacksburg restaurant worker’s apartment, according to court testimony.
They connected on Tinder, a dating app, weeks earlier after Smith, who identified as an openly gay man, presenting himself online as a 21-year-old emergency room physician named Angie Renee.
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Smith performed oral sex on Etute on April 10, and Etute returned to the apartment with two of his former teammates in May seeking to determine if Smith was a man or woman.
Defense attorney Jimmy Turk contrasted his client with the victim in stark terms on Friday. He referred to Smith as a “deceitful and dishonest man” who “defrauded young men for his own sexual gratification.”
“Who is the real victim here?” Turk said through tears, with Etute’s family sobbing in the gallery. “This was a wicked sexual ruse.”
The defense argued that Etute, who testified on his own behalf, acted in self defense after Smith punched him and reached under his mattress.
“I felt violated,” Etute said, of discovering Smith’s identity. “I was just in shock, in disbelief that someone tricked me and lied to me.”
The jury got to hear Etute’s description of the events twice during the trial with the also prosecution entering into evidence a 45-minute video of Blacksburg police detectives questioning him June 2.
Etute testified in court that Smith reached for what he thought was a gun under the mattress, but did not mention that fact when originally questioned in 2021. The police did find a knife under Smith’s mattress where Etute alleged the confrontation took place.
Montgomery County Chief Deputy Commonwealth Attorney Patrick Jensen did not defend Smith’s conduct in his closing statement, but said the “brutal beating” he received shows the malice required for a second-degree murder conviction.
Jensen said the defendant’s contradictory statements were enough to cast doubt on the self-defense claim.
“He has a motive for changing what he said,” Jensen said. “Etute has a tremendous amount of riding on this trial.”
A second-degree murder charge conviction would carry a sentence of five to 40 years in prison.
Jensen did cede a bit of ground in his rebuttal remarks after Turk’s emotional final words.
“If you find this was in the heat of passion, you shouldn’t find him guilty of second degree murder, the crime would be voluntary manslaughter, but what I’m telling you is this was not self-defense,” Jensen said.
Fleenor sided with the defense on a pair of notable motions during jury instructions.
He excluded a jury instruction on the “gay panic defense” that was the subject of a law passed by the General Assembly last year.
Gay panic refers to claiming, in court, that the reaction to finding out someone else’s sexual orientation or gender identity justifies violent acts. The law states that juries could not consider such reactions as legitimate justification.
Fleenor said the instruction would have been applied in this case, but the law was not in place until July 1 and did not apply retroactively.
“It would have been applicable, but this (ruling) is purely procedural,” Fleenor said.
Fleenor also allowed the defense’s proposed instructions on self-defense. The prosecution objected on the grounds that a “reach” – the alleged defense that Smith reached under his bed where a knife was later found by the police – did not constitute the necessary overt act for self-defense.
The judge sidestepped the substance of the arguments since the court was only being asked if the defense met what he described as an “extraordinarily low” standard to allow the jury to consider self-defense.
“There just needs to be a scintilla, and there may be all there is in this case, it’s not that much,” Fleenor said, in siding with the defense.
The 25 points of instruction were read to the jury before closing statements.
The defense rested after calling Jordan Brunson, a former Virginia Tech teammate of Etute, on Friday morning. Brunson accompanied Etute to Smith’s apartment along with Jalen Hampton on May 31.
He testified about waiting outside Smith’s apartment that night and feeling in his “gut” that something wasn’t right.
Defense attorney Turk also asked Brunson about a conversation he had with Etute on June 11, two days after his client was bonded out of jail.
“He took the guy’s hoodie, they looked at each other and the guy reached for him and he swung at him,” Brunson said. “Then he saw him (Smith) reach for something under the bed and hit him five to six times.”
Turk told the jury that the defense was unaware police detectives didn’t disclose finding a knife until June 17.
Day three of the trial opened with the defense trying to call Etute’s older brother Ehis to the stand. The move drew an immediate objection from the prosecution, since Ehis Etute was not among the witnesses submitted to the court by the defense during the pre-trial phase.
“This is a trial by ambush,” Jensen argued.
Fleenor asked the prosecution to consider if it would take a brief continuance in order to allow Etute’s testimony since excluding a witness’ testimony was an “extraordinary thing to do”, but the defense withdrew the request for him to testify after a brief recess.
The judge also denied the defense’s motion to strike the second-degree murder charge for a second time during the trial. Defense attorney Cliff Harrison argued that the prosecution did not provide sufficient evidence of malice, but the court disagreed.
“There was witness testimony from law enforcement as well as the defendant that he struck the victim on the ground while he was on his back and also stomped or kicked him,” Fleenor said.