In court papers filed in May, defense attorney Gary Pendleton implied that Smith killed the woman because he felt threatened by his friend Paul Clifford Ashton, who had just shot and killed one woman and shot and wounded another man. But prosecutors argued in a response motion filed in late June that Smith should be charged with aggravated murder because he independently decided to beat, strangle and ultimately slice Christensen's throat with a pocketknife.
The slaying was especially heinous, Deputy Washington County Attorney Brian Filter argued, because Smith had a loaded handgun at his side that he could have used to end the woman's life more quickly.
After a three-day preliminary hearing in October, 5th District Judge James Shumate who has since retired ruled that prosecutors had shown probable cause that Smith murdered Christensen. He also found that several aggravating factors justified the aggravated murder charge: that Christensen was killed during a criminal episode in which two or more people were killed, that the homicide was committed incident to attempted kidnapping, that Christensen was killed to prevent her from testifying and that the homicide was committed in an "especially heinous, atrocious, cruel or exceptionally depraved manner."
Pendleton argued in his motion that this decision should be reversed because there was no evidence presented by prosecutors that supported the aggravating factors.
Shooting • Pendleton wrote in the motion that Smith went to Ashton's St. George apartment Dec. 11, 2010, after Ashton had texted him, asking for a gun and saying he needed to "defend himself."
Smith came to the apartment with two guns, but Pendleton wrote that it quickly became apparent to his client that Ashton was not in any grave danger. Three people Christensen, Brandie Sue Dawn Jerden and James Fiske were at the apartment moving Jerden and Fiske's things out, but there was no "real tension" between the parties, according to the defense motion.
At some point, Ashton began using Smith's knife to cut tie-down straps into shorter lengths, according to Pendleton. Later, Smith told police that he eventually came to the conclusion that Ashton "was thinking about tying them up and taking them out in the desert somewhere and then ... yeah."
Pendleton wrote that Smith told police that after Christensen and Fiske had left for a short time, Ashton repeatedly urged him to go up behind Jerden and hit her in the back of the head with the handle of a socket wrench but Smith refused.
Prosecutors noted that Smith later told a detective he did not refuse because he was opposed to the kidnappings or murder but because he didn't think the socket wrench was heavy enough.
"It was not that he refused to knock out Jerden because he did not agree with the criminal objective," Filter wrote. "He refused to carry out this plan because he did not think that the plan would succeed. Smith rejected the means, not the objective."
Sometime later, after Christensen and Fiske were back in the apartment, Jerden confronted Ashton who was seated in an electric wheelchair because of an accident that injured his leg about a missing mountain bike. Jerden struck Ashton in the face with a plastic clamshell toolbox, according to the defense motion, and, at that point, Smith pulled out a gun he was carrying. Ashton pulled out a gun as well.
"Ashton simultaneously produced the firearm [Smith] had given him and shot Brandie Jerden in the face," Pendleton wrote. "She was apparently killed instantly."
Ashton then shot at Fiske, a bullet hitting him in the right shoulder. Fiske testified during the preliminary hearing that before he left the apartment, he heard Ashton order Smith to "go get the other one," in reference to Christensen.
"Smith had just witnessed Ashton shoot two individuals," Pendleton wrote in the motion. "Ashton was no longer in the wheelchair talking to Smith. He was on his feet halfway back to the bedroom holding the firearm he had just used on Jerden and Fiske, shouting directives at Smith."
Smith later told police that Christensen had locked herself in the bathroom after the shooting. He kicked in the door, he told a detective, while Ashton yelled at him to "get her" and "do it."
Smith told police that he "just wanted to knock her out, because that didn't work, and then she was in, yeah, a lot of pain. And then I was like, 'Oh crap.' And I think somewhere along the line it was like gone too far. It was like, might as well just yeah."
Smith admitted to police that after he beat Christensen with the socket wrench handle, he tried to choke her, and ultimately cut her throat with his pocketknife, according to attorneys.
"He did not even know her name!" Filter wrote in his response. "What makes this killing especially disturbing is that he chose not to just kill but to inflict unnecessary pain and suffering on a stranger, on a woman whose name he did not know and with whom he had never before interacted. He could not possibly have had any reason to want her to suffer other than to have the thrill of killing her slowly with his own hands."
Jail letters • After Ashton was arrested, he claimed that he shot Jerden and Fiske in self-defense and had nothing to do with Christensen's murder, but Pendleton wrote in his motion that jail letters seized in 2011 indicate that Ashton was more involved with Christensen's death than he let on.
"Brandon is my homie and I've known him for a long time," the note purportedly from Ashton reads. "He was just in the wrong place at the wrong time. I'm not taking the fall for it all! He had to do Jerico [Jerrica Christensen] or I was doing him. He didn't even know how to slice [her] throat! I had to show and tell him. I should have just shot him, too. Do em all!"
Ashton also said in the note that he wished he would have killed Fiske and Smith "Instead of 14, I would have 17," he wrote, seemingly in reference to the number of people he has claimed to have killed.
Ashton who had faced the possibility of the death penalty is serving two life sentences in federal prison after he pleaded guilty in the apartment killings, and also admitted to kidnapping and aiding in the murder of a homeless man, also in October 2010.
Pendleton argues in his motion that prosecutors failed to show that Smith planned the killings with Ashton, that Smith had any intention of kidnapping Christensen, that Christensen was killed to keep her from testifying or that Smith tortured or caused unnecessary suffering to the woman. Because prosecutors did not prove these aggravating factors, Pendleton argued, his client should not go to trial for aggravated murder and should not face the death penalty.
Pendleton further argues that prosecutors have "conscientiously avoided any meaningful examination of exculpatory evidence," including the text messages between Ashton and Smith and the jail letters believed to have been written by Ashton.
Filter would not comment about the defense team's motion, but said in his response motion that prosecutors "absolutely deny" the allegation. He wrote that the jail "kites" from Ashton are of little value "because there was no evidence that Paul Ashton ever pointed a gun at or communicated a threat to Brandon Smith."
Filter has asked 5th District Judge Michael Westfall to allow the case to go to trial on the aggravated murder charge, arguing that the issues presented by defense attorneys should be decided by a jury, not a judge at the preliminary hearing stage.
No date has been set for oral arguments regarding Pendleton's motion, according to court records.