Witnesses describe fatal attack on student

New details emerged this week regarding the death of Northwest Missouri State University student Tomarken Smith from injuries suffered in an early morning assault Sept. 14 outside Molly's, a bar and dance club on the Maryville square.

Witnesses gave nearly three hours of testimony before associate Circuit Judge Corey K. Herron in a preliminary hearing Tuesday for Kevin Dell Mooney, 31, one of two men charged with second-degree murder and felony assault in the case.

The other suspect, Tony M. Overlin, 23, will next appear in court on Dec. 17.

More than 20 members of the Sigma Phi Epsilon fraternity, to which Smith belonged, jammed into the small, stifling associate division courtroom on the second floor of the Nodaway County Courthouse.

Members of Mooney's family were also in attendance.

Prosecuting Attorney Robert Rice sought to present evidence showing that there is probable cause to believe felony crimes were committed, and that Mooney, who is free on bail, was involved.

Had the judge so ruled, the case would have been bound over to Circuit Court for trial. However, Mooney's three-member defense team, led by Kansas City attorney John O'Connor, questioned Rice's attempt to charge Mooney with murder rather than manslaughter using what is known as the "merger doctrine."

This is a point of common law that can broaden the crime of manslaughter when an offender kills accidentally or without specific intent while committing another felony.

Mooney's defense team argued that the merger doctrine excludes felonies presupposed by a murder charge, such as assault, since nearly all murders, by definition, involve some type of physical attack.

Due to the number and complexity of various legal precedents, Herron said he would take the matter under advisement before issuing a ruling.

Prior to the merger doctrine debate, which ended the hearing, Rice called a procession of witnesses who described the events surrounding Smith's death.

Kenny Forrester, who was at Molly's the night of the alleged murder, told of watching Smith push Overlin to the floor inside the bar while "sticking up for a couple of girls."

According to several witnesses, including two Maryville police officers and bar owner Michael Hoskey, Oberlin was extremely intoxicated at the time of the incident, while Smith appeared to have had less to drink.

Forrester also recounted watching the attack outside the bar, during which he claimed to have seen Overlin punch Smith in the face, a blow, he said, that was followed by Mooney striking the victim's temple.

After being hit, Forrester said, Smith sank to the pavement and never got up.

"It was the worst thing I've ever seen in my entire life," he said.

Smith's fraternity brother Colby Branstine described how the two men ended up at Molly's around 11 p.m. after a night of drinking at a house party and another local bar.

Branstine said he threw his arms around Smith in an attempt to keep the altercation inside Molly's from escalating and, a few minutes later, was walking down Market street beside his friend when he heard, but did not see, a punch thrown.

"I heard Tomarken get hit, and then just knelt down and held his head," said Branstine, who added that he noticed a small, bleeding wound where Smith's head had struck the pavement.

Also testifying were Maryville Public Safety police sergeants Rick Smail and Rex Riley, who were working "bar patrol" inside Molly's when the initial incident occurred, and who reached Smith seconds after he was struck down.

Once outside, Smail said he recognized Mooney and Overlin as they fled north down Market Street toward City Hall and into an alleyway.

Both officers described their attempts to revive Smith using CPR and mouth-to-mouth respiration, and said they saw Oberlin return to the scene at about the time the victim was being loaded into an ambulance.

Riley said Smith initially had a pulse, but that it faded and then stopped. He was declared dead less than an hour later at the St. Francis Hospital emergency room.

During the hearing, Dr. Keith Norton, the forensic pathologist who performed the autopsy on Smith's body, said the victim's death was caused by "blunt force injury to the head."

However, Norton said, Smith also had a slightly enlarged heart, blood irregularities and a condition known as a myocardial bridge, a birth defect in which a coronary artery tunnels through the heart muscle instead of resting on top of it.

Asked by O'Connor if Smith, whose blood-alcohol level was 0.189, could have died from a heart attack rather than head trauma, Norton said it was unlikely since he found clotted blood around Smith's brain, indicating that the victim's heart was still beating following the attack.