A DEADLY PRESCRIPTION
part 2 of 2
When police and firefighters arrived at Smith's home, they found the house clean and tidy, making Wirtzfeld all the more incongruous. He was sitting on a corner of the sofa, perched casually as if he'd fallen asleep while chatting with friends. He was leaning on his left elbow, which was propped atop a bed pillow. His right foot was resting on his left knee. An unopened beer can sat on the coffee table in front of him. Wirtzfeld's head was tilted back, his eyes partly open. His mouth was agape, revealing rows of crooked teeth.
Georgetown police chief Greg Wood found Smith in the master bathroom, where she and Perkins had been smoking cigarettes and speaking together in low voices. Wood says it was clear to him that Smith was ill, an observation that would be used against her at trial when the prosecution suggested that she, too, might have ingested an opiate. Smith also didn't tell Wood about Clogston's body being out in the van. It was ten or fifteen minutes before she mentioned to the local fire chief that there was a dead man in her driveway. That set off another flurry of activity and raised suspicions in Wood's mind: Why hadn't anybody mentioned it earlier?
Wood was well-versed in investigations. He'd become Georgetown's top cop ten years earlier after serving as a Nebraska law enforcement officer for eighteen years. But he wasn't quite sure what he had on his hands that day. He asked firefighters to check the house for the presence of dangerous gases, and he and his officers gathered up food on the chance that the men might have died of food poisoning.
Smith and her friends didn't know Wirtzfeld's last name, and police couldn't find any identification on him. And, for all Wood knew, there might be yet another dead body out there somewhere--after all, no one could account for Billy Been's whereabouts. No one could remember Been's last name, either. Wood set out with photos of Wirtzfeld to identify both him and the missing Been.
Wood eventually tracked down Been at his stepfather's home in Georgetown. Been answered the door looking, Wood says, "like warmed-over death." When the chief began questioning him about his whereabouts, Been gave the officers a brief accounting, ending with his departure from Smith's house at about 8 a.m. that same day.
Wood recounted his interview with Been in a written report. According to that report, when Wood asked Been, "`Did you know Bruce was dead when you left?' [Been's] eyes got big and his mouth dropped.'" Wood then told Been that Clogston was dead, too, "and I asked him if Bruce and Bill were using drugs at the bar or at Sue's house. By his reactions, I could tell he thought he was in trouble. I told Billy that if he took the same drugs that Bruce and Bill took, he might be in big trouble right now because they're dead and [he]might need medical attention."
It was then, according to Wood's report, that Been began reciting the version of events that later would serve as the backbone of the prosecution's homicide case against Sue Smith. Wood wrote in his report that Been told him the offer of "leftovers and a cocktail" at Smith's house had turned into something more sinister. Been told Wood that Smith had pulled open a couch drawer and produced a plastic bag "with about nine prescription bottles in it." Been said that Smith placed one brown bottle (later identified as having been filled with liquid morphine) on the coffee table and that she also passed around some "little pink pills."
Been said Smith told him the pills were "uppers." Been swallowed two. He said Smith and Wirtzfeld took some as well. (Investigators never asked Smith to submit to a blood test, a procedure that could have confirmed or disputed Been's account.)
In addition, Been told the chief that Wirtzfeld had taken "two or three" swigs from the brown bottle Smith had set on the coffee table. Been claimed he didn't know what was in the bottle but said Wirtzfeld told him the liquid tasted like peppermint schnapps.
By the time he went to sleep, Been told the chief, it was roughly 2:30 or 3 a.m. At that time, he said, Smith was conked out on a chair in the living room--not in her bedroom, as she claims.
Been told the chief he'd awakened about 8 a.m., feeling ill. He told Wood that he tried to awaken Wirtzfeld by jiggling his knee. After failing to rouse his buddy, Been said, he headed home alone.
Since leaving Smith's home, says Wood, "Billy Been had been sick the whole time. He'd been puking. He was very ill. When I told him Wirtzfeld was dead, he was visibly upset and worried about his own well-being.
"That kid," Wood continues, "he was scared. He thought he was going to die. I have no doubt he gave me the correct story. I interviewed him several times, and he always gave the same story."
Because Been "can barely read and write," says Wood, Georgetown officers had to help him fill out a written statement. Later that day, when Been's stepfather took him to the hospital, where he was held overnight for observation, doctors interviewed him. They noted in their report that Been had admitted to a history of "heavy multi-substance abuse." The doctors also concluded that Been's nausea likely derived from ingesting Dilaudid, one of the painkillers that had been prescribed to Smitty.
After Wood's conversation with Been, Georgetown police again contacted Sue Smith. She didn't make a good second impression.
By then, Smith had sought refuge at the home of neighbor Mark Reynolds. She says she didn't want to remain in the home where Wirtzfeld died and acknowledges that she was reluctant to comply with the officers' request that she accompany them back to her home. When she got there, she says, she would enter only as far as the garage.
It was in the garage that the officers told Smith what Been had said about the events of the previous evening. Then they read her the Miranda warning and asked her to turn Smitty's drugs over to them. If she refused, they told her, they would secure the house, obtain a search warrant and get the drugs anyway. By then, however, the bag of drugs was no longer in Smith's home: she had taken it to Reynolds's house and stashed it in a kitchen cabinet.
Smith concedes that removing the drugs from the scene "does make me look bad." But she notes that if she had been trying to destroy evidence, she could have simply thrown the drugs away. "I had four hours to ditch this stuff, and I had no cause to," says Smith. "I didn't even know what these people died of."
After consulting with an attorney, Smith led officers to Reynolds's kitchen and handed over the plastic bag. Police investigators didn't yet know the cause of the men's death, but they proceeded to investigate the case as a possible double homicide.
In a taped follow-up interview with police on September 12, Been told Chief Wood that Smith never suggested that anyone drink from the bottle of morphine after she set it on the table, and that she never identified what was in it. Asked why Wirtzfeld would choose to drink from it, Been replied that he had "no idea."
But it didn't take police long to discover that both of the victims, along with Been, had more than a passing acquaintance with drugs. Investigators learned that Clogston had been a heroin addict and had checked into a drug rehabilitation program a year or two prior to his death. Friends of Clogston's girlfriend told police that they'd even heard that Clogston had overdosed on more than one occasion.
Nor was Been squeaky clean. According to Wood, Been admitted using drugs (primarily methamphetamines) and said he had once been arrested in Texas for possession of marijuana. Police also found hallucinogenic mushrooms among Wirtzfeld's belongings, which were stowed at Been's house. Wirtzfeld's mother, though, denies that her son used drugs. "It was probably just curiosity," she says of the mushrooms. "If you have to eat them, he was a picky eater."
Unlike her guests, Sue Smith's reputation was primarily that of an average, middle-class citizen. She had no documented history of drug use, though she acknowledges a brief flirtation with pot that she says ended twenty years earlier. When investigators ran her name through the crime computer, the only thing that showed up was an arrest in Florida a decade earlier for writing a check with insufficient funds.
Wood interviewed Perkins on September 15. Her version of events closely matched that of Smith's, but Wood wrote in his notes of the interview that Perkins "sounded rehearsed."
The investigation remained in limbo until approximately six weeks after the deaths, when the autopsies on Clogston and Wirtzfeld were completed. Both men, according to pathologist Ben Galloway, had died of heart and respiratory failure brought on by an overdose of opiates. Both had a substantial amount of morphine in their systems. Boulder toxicologist Kathey Verdeal, who testified for the prosecution, says the amount of morphine each man had consumed was "tens to hundreds of times the amount for a lethal dose. It was not surprising they were dead."
Soon after the autopsy results were made available, Smith was told she would be charged with manslaughter in connection with Wirtzfeld's death. She was never charged with causing Clogston's demise--investigators had been unable to find anyone who actually saw Clogston in possession of the morphine that killed him. There was also the fact that everyone, including Been, told authorities Clogston never returned to the house after passing out in the van. "We don't know that [Smith] gave the morphine to Clogston," Wood explains. "There was no evidence at all as to how he got it in his system."
Smith's friends were shocked by the decision to charge her. Been's allegation that she had set out morphine cocktails and Dilaudid pills seemed totally out of keeping with what they knew of her character.
Wood says he, too, struggled with the apparent contradictions. "It seemed out of character to us, too," he says. "But we weren't judging her on her entire life. We had to look at the evidence we had." Wood says he believes that Been was telling the truth--and that Smith and her friends lied to cover up her ill-conceived decision to offer her guests a deadly narcotic.
Wood says he has a theory about why Smith, an otherwise upstanding citizen, would have handed out dangerous drugs to three men who essentially were strangers. The chief says he believes Smith had been feeling morose about the loss of her husband and tried to fight off that grief with alcohol and late-night camaraderie. "I think she wanted to have some fun," Wood says. "I think she was being careless. And stupid. That's what the charges were all based on; she knew what the drugs would do, and she dispensed them anyway."
Wood is well aware that his view of the situation doesn't gibe with that of Smith's supporters. He knows that some townspeople have even suggested that the investigation was botched or twisted by a police force with little experience handling apparent homicides. "I took the position that I am going to enforce the law," Wood says. "And if [the critics] don't like that, they can change the law."
Smith's trial began August 22, 1995, at the courthouse in Georgetown and lasted four days. Billy Been, the state's star witness, did well on the stand, and prosecutor Titus Peterson managed to score points with some of his other witnesses. Jeff Van Bush was put on the spot about a comment he'd made to an acquaintance regarding what Smith had been doing the morning he arrived to repair her plumbing. According to the prosecutor, Van Bush told the acquaintance that when he arrived at 11 a.m., Smith was already awake and cleaning the house. Van Bush countered that he didn't remember making such a comment, and that if he did, he would have meant it in a sarcastic way. But a seed of doubt was planted.
Peterson told the jury in his closing argument that the state believed Smith had discovered Wirtzfeld's body, phoned her friends so they could concoct a cover story, and then cleaned the house before Chandler picked up the phone to call for help. He also implied that Smith had been sick that afternoon because she had taken some of Smitty's drugs herself--a theory that couldn't be proven since police never conducted a blood test.
Some of the prosecution's witnesses, though, seemed to be of more help to the defense. Joe Levisky, a forensic toxicologist with the El Paso County coroner's office, testified that Bruce Wirtzfeld appeared to have ingested the drugs over a period of several hours. That conflicted with Been's recollection that Wirtzfeld had taken the Dilaudid and morphine within an hour of arriving at Smith's home. Levisky also testified that Wirtzfeld most likely took the drugs about five hours before he died. The coroner's office estimated that Wirtzfeld died at about 4 a.m., meaning he would have had to take the drugs while still at the Crazy Horse bar, at least an hour before arriving at Smith's home.
Perkins and Chandler testified for the defense, telling the jury that they never saw any drugs on the table or anywhere else that night, and that they had never seen Smith take drugs of any kind.
Defense attorney Pat Butler also produced a witness--Diane Perkins's 22-year-old daughter, Tina Perkins--whose testimony suggested that Clogston may have been the one who was interested in handing out drugs that night. Tina Perkins said that she and a friend, Angie Dragomaru, were at the Crazy Horse the night of the men's deaths. Clogston, she testified, invited the two of them to go outside and "get a buzz." Perkins said that when Dragomaru asked Clogston if he was referring to marijuana, Clogston replied, "No, something much better than marijuana." But she said that they dismissed Clogston's offer as a come-on, and that they never saw or accepted any drugs he might have had to offer.
Butler also presented evidence that he maintains contradicts Been's recollection that Smith had "crashed" in the living room about 2:30 or 3 a.m. He produced phone records to prove that Smith had phoned a friend in Florida at 3:12 that morning, meaning, to his mind, that Smith was still up and lucid.
Smith took the stand in her own defense. She told the gallery that she knew how lethal the drugs in the sofa were and that she would never have handed them out, particularly not to men she'd met only that night. Nor, she said, would she have allowed Clogston to remain in the van if she had known that he had possibly overdosed on morphine.
Yes, Smith said, she had been sick when police arrived that day, but there was nothing ominous about it. She had a hangover from drinking Seagram's and Cokes at the Crazy Horse, she said, and discovering two dead bodies hadn't made her feel any better. ("If she had taken any of the drugs," Butler says, "she would have gone to the doctor," just as the frightened Been had. "But that didn't happen, because she hadn't done anything.")
Smith also defends her seemingly irrational decision to hold on to Smitty's drugs after his death. "If I was going to sell them or use them, wouldn't they have been gone by then?" she says. She also pointed out that the plastic bag she saved contained not just morphine but other medications such as a preparation to soften Smitty's stools. "It wasn't like I just kept the `good drugs' and threw out the rest," she says.
The jury got the case on the morning of August 25 and reached a verdict nine hours later. Exactly how and why the jurors arrived at their guilty verdict is unknown; before announcing the verdict, the jurors told the judge they'd agreed among themselves not to disclose anything about their deliberations. (The jurors have kept that vow, remaining silent despite Westword's request for comment.)
The eight-man, four-woman panel found Smith guilty of distributing drugs but rejected the manslaughter charge, opting instead to convict Smith of criminally negligent homicide. She was released pending sentencing.
Smith says she was "devastated" by the verdict. "Everyone was," she says. "Everyone knew I didn't do it. They all said, `You're going to be found not guilty.' But they were wrong."
Smith's attorneys were among those who had predicted a not-guilty verdict. "I don't know if it was a compromise verdict," Butler says of the jurors' decision to convict Smith of a lesser charge. "But as far as we're concerned, it's a complete loss."
Smith's sentencing was set for November 17, but despite the verdict, her attorneys--Butler and Tom Lamm (brother of former governor Dick Lamm)--continued to press forward with the case at no charge. "That's just the way we feel about the case," says Butler. "In the scheme of things, you don't always get cases where you believe your client is innocent, but we absolutely believe in Sue's innocence."
Not long after the trial, Butler and Lamm were called upon to work even harder when Smith claimed that Billy Been was backtracking on his testimony. According to Smith, she approached Been at Empire's Bard Creek Inn on October 18 and he told her that he'd "cut a deal to testify" at her trial, and that he knew that she "had nothing to do with this." The following week, she says, he told her the same thing when she contacted him at another local watering hole.
Based on Smith's account of those conversations, Butler filed a motion on November 9 requesting that Judge Jones either grant Smith a new trial or vacate the judgment of conviction. But when a Georgetown police sergeant investigated Smith's claims, Been told him he'd never said any such thing. In fact, Been told the officer, Smith had been trying to intimidate him. A friend of Been's, Jeff Winefeldt, corroborated Been's version of events. "Since then," Butler says, "Billy Been has refused to talk to anybody." (Been didn't return phone calls from Westword requesting comment. Neither did prosecutor Titus Peterson.)
On November 15, two days before Smith's scheduled sentencing hearing, a full-page ad supporting Smith appeared on the back page of the Clear Creek Courant, the newspaper that serves Georgetown and the surrounding area. The ad was the brainchild of Georgetown cafe owner Becky Richardson. "This whole thing is a real mess, and Sue does not deserve this," Richardson says of the case. "She bends over backwards to help people. She is so well-loved by this town, and that's why those guys [Been and Wirtzfeld] spent the night at her house--she didn't want them to drink and drive."
Richardson's campaign on behalf of Smith was quickly embraced by Smith's friends. "I don't know if things like that can influence a judge or whoever, or if they'd be allowed to be influenced by it," says Joanie Regester. "But I don't want the police or anybody else to think that we believe they did a good job [on this case]. I want them to know that we will not sit quietly by."
Judge Jones postponed the November 17 sentencing, ordering investigators to get to the bottom of the perjury allegations. Procedural difficulties and red tape have delayed the hearing twice since then. The new scheduled date is March 1--Smith's 47th birthday. On that date, Smith expects to learn whether or not she will be granted a new trial. If she fails in that bid, the judge will set a new sentencing date, possibly for later that month.
Smith claims that a part of her feels sorry for Billy Been. "I feel he's been just as much a victim as I have," she says. "I believe he realized Bruce [Wirtzfeld] was dead, he got scared to death, and he blew out of here." Smith says she believes Been lied to protect himself from being charged in the case.
If Smith is angry at anyone, it's Bill Clogston, her husband's erstwhile friend. "Bill Clogston is the one that started this whole mess," she says.
Since the verdict was handed down, Smith has put up for sale the house she and Smitty bought together. She says she needs the money to pay her outstanding legal bills. Smith's eyes fill with tears when discussing the case, and her nails are bitten to the quick. She admits that the thought of jail terrifies her.
"She's the kind of person who always just hopes for the best," Joanie Regester says. "But I just feel like a lot of it is a show to comfort her friends. I'm amazed how she carries on and puts one foot in front of the other."
Smith has moved forward in many respects--she has been dating steadily and is even considering remarrying. But she still hasn't thrown out Smitty's belongings. Her late husband's razor and pocket knife are still in a drawer in the bathroom, she says. His clothes are in an upstairs closet. She still keeps his wallet--expired credit cards and all--in the bedroom.
"I suppose that when I sell the house, I'll have to deal with it," Smith says. "I've got enough going on without having to deal with that, too."
end of part 2
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