GREENFIELD — “They had been picked and they had been chosen.”
That’s what prosecutor Jeremy Bucci said of the victims in the 2016 double murder trial that began Thursday.
“It was an altogether ordinary night” for the victims, Thomas Harty and Joanna Fisher of Orange, Bucci told the jury and Judge John Agostini during his opening statement. “But they were being watched,” Bucci said as one of the defendants in the case, Joshua Hart, 25, of Athol, listened during the first day of testimony at Franklin County Justice Center.
Hart is charged with the murder of Harty, 95, and fatally wounding his 77-year-old wife, Fisher, during an Oct. 5, 2016, home invasion at the couple’s 581 East River St., Orange residency.
Hart has pleaded not guilty to nine counts. He is being tried before his co-defendant, Brittany Smith, 29, of Athol, who has also pleaded not guilty to the double homicide.
The prosecution alleges the defendants, having been arrested just two nights before in the theft of Brittany Smith’s great-grandmother’s car, wanted to steal anything of value and “get a car and get out of town.” Smith, a heroin addict, and Hart, who had warrants out for his arrest from Pennsylvania, allegedly wished to flee any potential consequences of their prior arrest.
Prosecutors say they watched Harty and Fisher through the windows of the home before entering. Upon entering, Hart allegedly grabbed a knife and attacked Harty in his chair.
“He stabbed, and stabbed and stabbed Mr. Harty,” Bucci said.
Bucci asked the jury — nine women and five men — that it find Hart guilty of murder in the first degree because it was premeditated and because it was “extremely cruel and atrocious.”
Bucci described Hart and Brittany Smith as taking part in a joint venture.
Attorney Brian E. Murphy, representing Hart, told the jury that his client is not guilty of murder and that Smith killed Harty and Fisher. Murphy said Hart was “madly in love” with Smith, providing a false confession to police after being caught in Rockland County, Va., in order to protect her.
“Josh is a criminal. He helped her steal, he helped her clean up,” Murphy said. “He is a criminal, but he is not a murderer.”
Following opening statements, the prosecution called Timothy Haley, Thomas Harty’s friend who was planning a hiking trip at Grand Canyon with him. The two had a brief phone call the evening of Oct. 5.
“We’ve gone hiking,” said Haley, remembering his incredibly active 95-year-old friend. “I went hiking the Grand Canyon with him seven times.”
Haley stated the phone call was “normal” and lasted less than two minutes.
More dramatic testimony was provided by Cindy Sumner-Morrill, a Catholic Charities nurse who found Fisher, who was partially paralyzed due to a spinal stroke, the morning after the attack when she came for a scheduled visit to help her learn how to walk again.
“She was making a lot of strides,” Sumner-Morrill said. “She was very diligent about doing her exercises.”
Sumner-Morrill found Harty dead and Fisher, moaning on the floor. She testified Fisher said, “Invasion. Ambulance.”
“She told me they tried to kill her, kept putting a pillow over her face to try and smother her, but she said, ‘But I’m tough,’” she added.
Fisher died on Nov. 10, 2016, from complications relating to her injuries, but was able to assist police in the investigation.
During cross-examination, Sumner-Morrill said Fisher only referred to her attackers as “they” and did not specify if a man or woman was the primary attacker.
Also testifying was Fisher’s son, Donald L. Fisher, who detailed his mother’s medical struggles, and Harty’s daughter, Kathleen Harty, who described her father’s health as “almost perfect.”
Kathleen Koonz, Fisher’s daughter, was questioned by both attorneys.
“She said she was attacked by a female is that correct?” Murphy asked.
“Yes,” said Koonz, recalling a conversation with her mother.
Massachusetts State Police Trooper William McMillan helped track the suspects in the attack to Virginia, studying surveillance cameras showing Hart and Smith in a Worcester Walmart around the same time someone attempted to buy things with Harty’s credit card.
Murphy played a video during McMillan’s time on the stand of Fisher in the hospital looking at a photo arrangement containing several men who looked like Hart, as well as Hart himself. She could not identify any of the men in the photos, including Hart.
Other witnesses included an Orange police officer, Jonathan Cole, who responded to the crime scene on Oct. 5, 2016, and during the investigation was able to identify Hart and Smith as the people in the Walmart surveillance footage. Cole had arrested the two on Oct. 3, and knew Smith’s mother from childhood.
Smith’s uncle, Dennis Brooks, and mother, Nicole Smith, were also witnesses, and Murphy questioned them about the seriousness of Brittany Smith’s heroin addiction.
“I arranged to take custody of D.J. (her daughter’s son),” said Nicole Smith, who stated she planned to have her daughter “sectioned” — forced into rehab — and that her daughter’s children would sometimes sleep at the homes of family and friends, away from their mother.
Murphy alleges that Brittany Smith had spiraled “out of control,” and would do anything to continue her drug habit.
Hart, with hair slicked back and wearing a gray dress shirt and tie, sat calmly throughout the proceedings, but smiled repeatedly and talked animatedly with his lawyer before the session and during a brief recess.
According to Bucci, the Hart case is expected to conclude after roughly two weeks. The Brittany Smith case will follow immediately after Hart’s.