Bryan Timothy Smith is found guilty of attempted armed robbery.
By Jason Geary
Published: Tuesday, October 28, 2008 at 12:01 a.m.
BARTOW | After spending about eight hours deliberating over two days, a jury Tuesday acquitted Bryan Timothy Smith of a first-degree murder charge in the slaying of Bartow store clerk Remesh Desai.
However, the jury found Smith, 23, guilty of participating in the attempted armed robbery that ended Desai's life.
Prosecutors concluded Smith wasn't the person who fatally shot the 44-year-old store clerk. They point to Smith's stepbrother, Jamail Hogan, as the gunman.
Prosecutors are seeking the death penalty against Hogan, 27. His trial is expected to begin next week.
Under Florida law, those who participate in certain felonies, including attempted armed robbery, that result in the death of another can be charged with murder.
Smith, who already has a 140-year federal prison sentence, is scheduled for sentencing Nov. 12 for the attempted armed robbery conviction. He could receive a maximum of 15 years in prison.
Chip Thullbery, a spokesman for the State Attorney's Office in Bartow, said it was important to prosecute Smith on the state charges to guard against his being released if there is a successful appeal of his federal conviction.
Prosecutors say Smith and Hogan are responsible for the fatal Dec. 2, 2005, robbery attempt at Bill's Market store.
Desai was shot and later died of complications from a single gunshot wound. A medical examiner concluded he died of a blood clot that traveled to his lung, reports state.
Unsettling evidence at Smith's trial came from video surveillance taken from several angles inside the store on U.S. 17.
There is no sound on the recording. But the color footage vividly captured disturbing images as the robbers enter the store and demand money.
Desai is shot and falls to the floor in pain.
During Monday's closing arguments, Assistant State Attorney Hardy Pickard told jurors that it didn't matter what role Smith played in the botched robbery.
He might be the man seen in the footage holding a police baton or he might be an unseen getaway driver waiting outside, Pickard said.
In either role, Smith is guilty of murder, Pickard said.
"It makes absolutely no difference," he said.
But Smith's lawyer, Robert Norgard, argued that his client had no idea an attempted robbery was going to take place until it was too late.
Smith was "duped" by his stepbrother and a stranger into serving as the getaway driver, Norgard said.
"They thought they were slick," Norgard said.
Smith told detectives what happened, but they refused to believe him, Norgard said.
Pickard dismissed the defense's claim that Smith was an unwitting participant in the crime.
"That doesn't hold water at all," he said.
The would-be robbers were armed when they went into the store and were dressed with sweatshirts, gloves and fabric covering their faces, Pickard said.
Norgard argued Hogan and the unknown man managed to conceal the robbery weapons and disguises from Smith and get ready before they went into the store.
Smith told investigators he loaned his red sweatshirt to the unknown man.
Pickard said if Smith really did lend the clothing to an unknown man that he knew it was to help disguise the man's identity for the robbery.
But Norgard suggested Smith might have thought the man was cold on that December afternoon and he wanted to wear the sweatshirt to keep warm.
Smith and Hogan are sons of two Polk County Sheriff's Office employees, Capt. James Hogan and Lucretia Smith Hogan, a detention deputy.
The stepbrothers have received federal prison sentences on charges related to a series of robberies throughout Winter Haven, Haines City, Davenport, Bartow and Osceola County, court records
Smith was sentenced to 140 years in prison, and Hogan was sentenced to 242 years in prison.
[Jason Geary can be reached at firstname.lastname@example.org or 863-802-7536.]
This story appeared in print on page B1