Brothers guilty of second-degree murder

Two Six Nations brothers were found guilty Wednesday of second-degree murder in the death of 27-year-old Andrew Davis, who was shot in the head as his young daughter sat on his lap.

A jury found Eric Jerome Smoke, now 24, and Andrew Brent Smoke, now 26, both of Six Nations, were each responsible for Davis’s death, which was recorded on video and audio on Nov. 30, 2020.

Andrew Smoke was arrested shortly after Davis’s death, but police were searching for Eric Smoke for more than a week, warning the public he might be armed and dangerous.

Davis, also known as Scruff to friends and family, had been picking up his daughter from her mother’s home when he got into an argument with the woman’s new boyfriend, Andrew Smoke, and Smoke’s brother.

Evidence was presented that the brothers crowded Davis as he sat in his truck with the door open and the child on his lap. Audio and video evidence was played repeatedly throughout the two-and-a-half week trial.

Some audio evidence was recorded by the murdered man, who likely thought he was collecting evidence to use in family court, said one lawyer.

“You’re dead,” Andrew Smoke told Davis.

“Put her down,” said Eric Smoke. “You’re wearing your kid like body armour.”

Davis is heard reasoning with the men, saying “there’s a place and time” to fight.

Zuraw said the Smokes knew there would be violence and the use of the term body armor indicated it wasn’t going to be a fist fight.

Lawyers for the Smoke brothers took pains to point out discrepancies in descriptions, saying it was an unknown individual who accompanied Andrew Smoke to the truck.

Patrick Skye, the much older brother of both Smokes, tested that when Andrew Smoke and another man came to his workplace immediately after Davis’s death, he didn’t recognize the second man. Skye said they were asking to borrow his vehicle, after having crashed the van they normally used.

“He’s lying to protect his younger brother,” assistant Crown attorney Derek Zuraw told the jury.

Zuraw showed “first-class” surveillance video from the Sit-N-Bull gas station that showed Skye standing close to the two men and talking. Skye tested he didn’t hear or understand anything the second man said.

Zuraw told the jury of eight women and four men that it would have had to be an incredible series of coincidences for the brothers not to be guilty.

Zuraw presented comparisons of photos from the crime videos and booking photos that showed the men and the dark hoodie with a distinctive Air Jordan logo worn by Eric Smoke.

The same kind of hoodie was found days later in Smoke’s Hamilton home with his DNA on it and a small amount of gunshot residue.

Investigators also linked a satchel seen at the crime scene to Eric Smoke.

“These are not coincidences but evidence beyond a reasonable doubt,” said Zuraw.

The jury was handed the case for deliberation on Tuesday afternoon and were sequestered for the night. Jurors returned to the Superior Court on Wednesday afternoon after nine or ten hours of deliberation, finding both Smokes guilty of second-degree murder.

A large group of family and friends of Andrew Davis sat in the courtroom some weeping as the verdict was returned.

Justice Robert Reid asked the jury to perform one further task, sending them back to consider — “as representatives of the community” — how long the Smokes should be imprisoned before there was even a chance at parole.

Six jurors offered no opinions and the others suggested years that ran from the middle to the highest of the range, which is from 10 to 25 years by law.

Most of those offering recommendations indicated Eric Smoke should get a longer sentence.

The case will return in April to an assignment court for next dates to be set while Gladue reports are prepared on both men.

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