A DEADLY PRESCRIPTION

"Smitty's" wife, Sue, found some comfort in the fact that her husband's death ended his earthly torment. But for her, she believed, things had hit bottom. She was only 45 and a widow. The suffering of her husband, a construction supervisor and volunteer firefighter for the small mountain community of Georgetown, had taken an emotional and financial toll on her. Things couldn't possibly get worse.

Or so she thought.
Eight months later, Sue Smith woke to find a dead man sitting on her sofa and a second corpse parked in her Ford van. Autopsies showed that the men, a houseguest and another man Sue and her roommate had invited home for food and drinks after a night on the town, had overdosed on morphine--Smitty's morphine, which Sue never threw out following her husband's death.

After the bodies were discovered, Billy Been, a semi-literate short-order cook who was also at Smith's home that night, told police Sue Smith had provided the morphine to at least one of the dead men. Sue and two other witnesses denied it, telling investigators the men must have found Smitty's stash of narcotics and taken the drugs without her knowledge.

It was a classic he said/she said battle pitting middle-class, middle-aged townspeople against young, rootless men. To date, the young and the restless have won almost every round.

Prosecutors couldn't tie Smith to the death of the man in the van, which was parked in her driveway. But she was charged with manslaughter in the death of the man found in her living room. Been's testimony--and Smith's inability to provide a plausible explanation for some of her actions--led to Smith's conviction last fall on charges of drug distribution and criminally negligent homicide. She could face as long as 24 years in prison.

Following the verdict, the families of the dead men appealed to the court to hand down a suitably harsh punishment for Smith, whom they characterized as "smug" and a liar. "I believe Billy Been," says Diane Wirtzfeld, whose 26-year-old son was found dead on Smith's couch. "[Smith] is lying through her teeth."

But many Georgetown residents believe Smith. Her friends have engaged in a letter-writing campaign urging the judge to go easy on a woman they describe as a selfless grandmother and Good Samaritan. Two days prior to Smith's scheduled sentencing, 300 townspeople bought a full-page ad in the local newspaper voicing their belief in her innocence. Even the police chief, who investigated the case and believes Smith is guilty, concedes that the drug episode appears out of character for her and suggests that her actions may have sprung from thoughtlessness and grief.

Six months after being convicted, Smith has yet to spend a day in jail, her sentencing repeatedly delayed by District Judge William Jones. The judge's rulings were prompted by a motion from Smith's attorneys, which asks the judge either to vacate the sentence or to order a new trial. The lawyers based that request on what they call "newly discovered evidence"--provided by Smith herself--that the state's star witness perjured himself. The attorneys say they believe so strongly in Smith's innocence that they have been representing her without charge since the trial.

Judge Jones has scheduled a hearing on Smith's motion for March 1. If she fails in that bid, she likely will be sentenced later that month. The uncertainty of her future has weighed heavily on Smith, who has put her house up for sale to pay her legal bills. "If I had done it, fine, I'd deserve all this," she says in a voice made gravelly by cigarettes. "But I didn't do it."

Sue Barnett and Gary Smith met in August 1989 on a blind date arranged by mutual friends from Denver. Sue was living in New Jersey at the time, running her own wholesale uniform business. Smitty, a construction engineer who supervised roofing contracts at various 3M plants, was working on a project in the area.

"We went out one weekend and we were together ever since," Sue says. When Smitty's work took him to California later that year, they launched a long-distance relationship, making numerous cross-country trips to see each other. By March 1991, the couple was ready to make a real commitment and bought a house in Georgetown, which had served as Smitty's home base for nearly twenty years.

Their choice was a compact, three-level house at the top of a hill, just minutes from the town's main street. The two of them looked forward to sprucing up the house and settling in together. But Smitty's stay would be short.

He was working on a project in Alabama, a month after closing on the house, when he began experiencing intestinal problems. On May 8 he was diagnosed with rectal cancer.

Smitty returned to Georgetown on a medical leave, and in September 1991 underwent the first of many surgeries. When those operations failed to stop the cancer's deadly march, he was put through a series of chemotherapy and radiation treatments.

In late 1992, a group of Smitty's friends began planning a benefit for him to help defray his mounting medical bills. The fact that several members of his large and far-flung family were coming to town for the December 5 bash caused the couple some consternation--they really hadn't had the time or money to furnish their new place, and there was virtually nowhere for the visitors to sit. Sue and Smitty bit the bullet and bought a living room set consisting of a gray sofa, love seat and recliner.

But furniture alone couldn't make it a comfortable visit for anyone. On December 2, three days before the benefit was to take place, Smitty underwent another chemotherapy treatment. The session, Sue says, "fried his insides," damaging his sciatic nerve, his bladder and his scrotum.

When the day of the benefit arrived, Smitty was in so much pain that his wife was unsure if he could make it to his own party. The pain pulsed down his left side all the way to his foot, making it hard to walk or stand. Smitty did make a showing, but he and Sue were forced to leave the benefit early.

By the following summer, Smitty was forced to spend most of each day reclining on the new sofa, watching television and reading magazines. The couch was convenient to the kitchen and master bedroom, and it sported a handy storage compartment. Beneath the seat, upholstered to match the rest of the sofa, was a drawer. In it Smitty kept his TV Guide and numerous medications. "Smitty used it all the time," says Sue.

Marriage had been on the couple's minds for some time, Sue says, but they both kept delaying a ceremony in the hopes that Smitty would get well. Eventually, they began to accept that he might never recover. "We realized things were not going well and that he wasn't getting better," Sue says. "Smitty was having a hard time and he thought I might leave him. It was a security thing for him. And I never wanted him to think that just because he was sick that that would make a difference.

"Our friends kept teasing us and asking when we were going to get married," she adds. And one day I said, `We're doing it next week.'" Sue and Smitty wed on August 18, 1993, exactly four years from the day they met. The small ceremony was held in a gazebo in the town park, with Sue wearing a white dress cut above the knee and carrying a cascading bouquet of pink flowers. Smitty wore a sports coat and leaned heavily on a cane, upon which he'd become increasingly reliant.

The two entered the marriage with eyes wide open. It was Sue's fourth marriage and Smitty's third. Both had grown children. "Our relationship was very different from other people, I'm sure," Sue concedes. And indeed, it was--she was to be Smitty's nurse as much as she was his wife. Within months of the wedding, Smitty's health began rapidly deteriorating. In October 1993, Sue moved a hospital bed into the living room and consigned the sofa to the upstairs loft.

Smitty's longtime friends admired Sue's courage and patience in dealing with her husband. "She definitely had her plate very full," says Joanie Regester, who, with her husband, owns and operates a specialty lighting store in Silver Plume. "She would be with him at the hospital all the time and drive back and forth for his therapy, and she continued to work full-time because they needed the money."

Sue Smith was spelled in her nursing duties by home-care nurses, but it was she who transported Smitty to Denver for his visits with his oncologist. Whenever he was hospitalized, Smith was the one called upon to advise hospital employees about his condition and fill them in on the medications he was taking. And upon his return home, Smith was the one who informed his nurses about changes in his regimen.

That regimen was daunting. Smitty's first surgery necessitated the use of a colostomy bag. After his right kidney shut down, he was forced to wear a catheter. In the months before his death, Smith was so miserable that doctors prescribed liquid morphine and Dilaudid, another narcotic, for pain. He was given antibiotics to ward off infection, pills to help him sleep, vitamins, stool softeners, and pills to quell anxiety. He was taking so many medications, in fact, that Smith kept track of her husband's dosages and timetables on a paper tablet.

"Everything was very regulated," Smith says. "I had to continually watch him for fear of overdosing. He had a tremendous tolerance. He could take a lot of [liquid morphine], but he took it with an eyedropper. We had to be very careful with it." Smith says she developed a healthy respect for the narcotic and never took it herself, even to ease her occasional migraine headaches.

On January 12, 1994, Smitty went back into the hospital to have a tube to his kidney replaced. But when it came time for him to be discharged, Smith says, her husband was experiencing excruciating pain. Smitty's oncologist had him transferred to another room, and then met with the couple to discuss Smitty's options.

Smith says it was clear to all of them that the morphine and Dilaudid--which sometimes left Smitty groggy and uncommunicative--were no longer helping. There was, however, a radical solution available: surgeons could paralyze Smitty from the waist down, forcing him into a wheelchair but cutting off all sensation of pain. "He would be a normal person and know what was going on," Smith says. In addition, she and Smitty believed that the surgery would make it possible for them to carry out Smitty's last wish--he wanted to visit the Smithsonian Institution in Washington, D.C.

"He'd been all over the country, and it was the main thing he wanted to do," Smith says. "I knew that with the pain he was having, he couldn't go. But he could go in a wheelchair."

Smitty agreed to the surgery, but never realized his dream of seeing the Smithsonian. He died on the operating table after suffering a heart attack. He was 47. And Smith was a widow after five months of marriage.

Smitty had lived in Georgetown for 22 years, and had served as a volunteer firefighter. His friends saw to it that he received a working-class hero's sendoff. A friend placed quarters in Smitty's jeans pockets so that he'd have money to play pool in heaven. His casket was carried not in a hearse but in the back of his beloved El Camino. A fire truck led the lengthy funeral procession, which wended through town to the cemetery.

After Smitty's death, Smith took some of her husband's books and magazines to the hospital so that other patients might enjoy them. She donated his walker, cane and numerous other items to an Evergreen hospice. Smith says she also tried to give Smitty's remaining prescriptions--including his morphine--to one of his home nurses, Peggy Kirschke. She claims that Kirschke told her she couldn't accept the drugs because once a prescription had been dispensed, it couldn't legally be given to someone else. Kirschke testified to the same thing at trial.

For whatever reason, Smith took the morphine and other assorted prescriptions and placed them back in the sofa drawer where Smitty had always kept them. They would remain there because of a dream.

About two weeks after Smitty's funeral, Smith says, she dreamed that Smitty was alive and well. "All his friends were here," she remembers. "And he asked me about his toothbrush. I started crying. I was upset because I had thrown it out. He was laughing, and he said he could get another. But I was still upset."

After that, Smith says, she couldn't bring herself to throw out any personal items belonging to her dead husband.

Smitty's friends weren't limited to those he knew in Georgetown. He'd met and befriended various tradesmen in his work across the country, and they'd sometimes breeze through town for a visit. One such friend was Bill Clogston, a 43-year-old roofer Smitty had met years before in California.

Sue Smith says Clogston stopped over in Georgetown a couple of times after Smitty fell ill, staying for a few days each time. "The only thing Smitty ever said about Bill was that he was a wild and crazy boy and that he liked to fight," she says. "When he came here, there were no problems. He was happy-go-lucky."

Smith says she never knew that Clogston struggled with a heroin habit, a fact that would come out during the police investigation. Smith adds that she doesn't believe Smitty was aware of Clogston's history of drug use, either. "If Smitty had known," she says, "he would have told me."

The first time Clogston visited, Smith says, was in the summer or early fall of 1992. He stopped in again the following summer. By the time of Clogston's second visit, Smitty's health had visibly deteriorated--he was spending his days on the couch, watching television and dispensing painkillers to himself from the drawer in the sofa. "Bill knew the drawer was there," Smith says, "because Smitty used it all the time."

Smith heard from Clogston again on Tuesday, September 6, 1994. He was in Denver and wanted to come up to Georgetown for a visit. "He said his car was in Glenwood Springs and that he would like to come up on Wednesday and leave on Friday to get his car and pick up a paycheck," Smith says. "Then he was going to go home to Ketchum, Idaho."

Clogston didn't know Smitty had died when he called, Smith says. "He was just floored." Smith invited Clogston to stay with her in Georgetown anyway. She recently had acquired a roommate, Diane Perkins, and though Clogston wouldn't be able to sleep in the spare room, Smith told him he was welcome to camp out on the sofa.

When Clogston arrived the next day, he and Smith visited Smitty's grave. It was peaceful there--friends of Smitty's had built a wooden bench near the gravesite--and when they ran into another friend at the cemetery, Smith says, "we all sat around and told Smitty stories."

Later that day, Smith says, she and Clogston had dinner and drinks at the Crazy Horse, a Georgetown saloon. After they returned home, Clogston did some of his laundry and Smith went to bed. The next morning, Smith says, Clogston was already up and reading a copy of Reader's Digest when she arose at 8 o'clock. He told Smith that he'd been awake for two or three hours and made a reference to "roofers' hours" and early rising.

Smith had upholstery work to attend to and says she occupied herself with that throughout the morning. After lunch, Clogston helped Diane Perkins and her friend, Jeff Van Bush, mow yards around town. (Perkins, who works at the Loveland ski area during the winter, operated a lawn service in the summers.) Clogston and Perkins "called me about 2:30 p.m. from the Crazy Horse," Smith says. "They were drinking beer and I said I would be there later."

Smith joined the group for drinks sometime after 5 p.m., returning home with Perkins, Clogston and a couple of other friends about 8:30 p.m. to make dinner and place phone calls.

"We ate dinner," Perkins remembers, "and [Clogston] called his girlfriend and I went upstairs to do the girl thing with my hair. Then we went back to the bar." Smith estimates that it was about 10:45 p.m. when they returned to the Crazy Horse.

Back at the bar, Smith and Clogston began shooting pool with other patrons--including Billy Been and Bruce Wirtzfeld, whom they met that evening. The two men, who were staying with Been's stepfather in Georgetown while working as cooks in Idaho Springs, got on well with Smith and her friends, even though Been and Wirtzfeld were fifteen to twenty years younger than the others. Been's statements to police and his testimony at trial about the group's actions that evening would coincide almost completely with those of Smith and her friends--with one fatal difference.

Smith and Perkins say Clogston was drinking beer and shots of Wild Turkey that night. And to no one's surprise, he began to fade fast sometime between midnight and 1 a.m. "Somebody said, `Bill's about to pass out,'" Smith recalls, "and I asked him if he wanted to go to my van and lie down, and he said yes. I just figured, well, this guy's been drinking since three this afternoon, and he was drinking shots. That drags you down."

Perkins held the door open for Smith and Been as they assisted Clogston outside. "He was getting pretty loaded," Perkins says of Clogston. "He was starting to mumble like a drunk person."

After that, Smith went back to the pool table, and Perkins reclaimed her stool in front of a video poker game. At closing time, as they got ready to leave, Smith mentioned something about heating up leftovers and having another drink back at the house. She included Been and Wirtzfeld in the invitation. "Diane said she'd seen them in the Crazy Horse on other occasions and figured they were okay," Smith says. "And Brian [Chandler, Perkins's boyfriend, who also was at the bar] was coming back with us, so I wasn't worried about them."

Three people--Perkins, Chandler and Wirtzfeld--piled into the back of Smith's van alongside the apparently sleeping Clogston. Been sat up front with Smith, who was driv-ing. No one noticed anything amiss on the five-minute drive to Smith's home.

Because Clogston was still out like a light when the group arrived at Smith's place, Smith and Been covered him with a sleeping bag, took off his shoes and left him to sleep it off in the van. "I felt that when the floor got hard enough or he got cold enough, he would come in," Smith says.

The others in the party went inside, warmed up the leftovers and ate, says Smith. "The police [later] made it sound like we were swinging from the ceiling fan and dancing around naked, but that was not the case at all," says Smith. "We had the TV on, we messed around with the dog, Billy helped me clean up the kitchen and get the house picked up."

From there, Been's and Smith's versions of events take radically different turns.

According to Smith, after she and Been tidied up the place, "I told [Been and Wirtzfeld] that they could stay on the couch. They didn't need to be out walking or driving. I got them some pillows, went to my bedroom, called a friend of mine in Florida and went to bed."

Smith says she was awakened sometime after eleven the next morning by Jeff Van Bush, who'd come over to repair her toilet. "I told Jeff that we'd partied late last night," Smith says. "And I noticed that Billy [Been] was gone. And Jeff looked into the living room [where Wirtzfeld was sitting on the sofa] and he said, `God, how can anybody sleep with their eyes open?' I didn't think anything about it. When I was a kid, my mom slept with her eyes kind of partway open."

At any rate, Smith says, she didn't get a good look at Wirtzfeld. She was sleepy and hung over, and wasn't wearing her eyeglasses or contact lenses. When Van Bush left to get plumbing parts in Idaho Springs, says Smith, "I crawled back into bed."

It was about 2 p.m. Friday before Smith decided to get up. "I was waiting for everybody to start stirring," she says. "It was getting late, and Bill [Clogston] needed to get to Glenwood. We needed to get the show on the road."

From the door to her bedroom, says Smith, she could see into the living room. She could tell that Clogston was still sitting in the same spot on the sofa where she'd seen him hours before. "I figured Bruce was still asleep," Smith says, "and I didn't want to startle him, so I started singing to him [to the tune of the song "Name Game"]: `Bruce, Bruce bo Bruce, banana fanna fo fruce...' and he didn't stir. I walked over and leaned over him and touched his hand. It was ice-cold. And I looked him in the face. I'm blind as a bat. I touched his hand again and I thought something was not right. Then it dawned on me that Bill [Clogston] was not here."

Smith says she ran outside to the van. "I pulled the sleeping bag to the side and I saw that [Clogston's] face and arm were blue and splotchy" she says. "I knew something was wrong. People were dead." Smith says she rushed back into the house and hollered from the top of the stairs to Perkins and Chandler, who were still asleep in the third-floor bedroom. "She yelled, `Dee Dee, come here!'" Perkins recalls. "She said one guy was dead and that she went out to the van and that she thought Bill was dead, too. We were panicking. It was like a dream or a nightmare."

Smith was waiting for Perkins and Chandler to dress and come downstairs when, she says, she remembered that Smitty's painkillers were still in the sofa drawer. What she did next would become a crucial issue at trial. "I didn't know if I was supposed to have them or not," she says of the drugs. So, she admits, she took a plastic bag filled with morphine and other prescription drugs from the sofa drawer--which was inches from Wirtzfeld's dead body--and put the bag in her bedroom closet.

Chandler and Perkins raced downstairs moments later. "I didn't want to leave the kitchen," Perkins says. But she could see into the living room from where she stood. "I thought [Wirtzfeld] looked like he was sleeping," she says. "But I'd never seen a dead person except in a casket."

While Chandler phoned 911, Smith and Perkins retreated to Smith's bedroom. After hanging up with the emergency operator, Smith says, Chandler told the women that, while he told authorities about Wirtzfeld, he hadn't had a chance to mention the second body--Clogston, out in the van. He claims the dispatcher didn't allow him to get a word in edgewise.

end of part 1