A Solano County Superior Court judge on Tuesday declared a mistrial in the penalty phase of Henry Albert Smith Jr.'s trial for killing Vallejo police Officer Jim Capoot in 2011.
Smith, 41, of Fairfield, was convicted of all charges and special circumstances Friday. The trial to determine whether he should receive the death penalty was to begin this week, but one of the jurors is moving out of state Thursday.
All five alternates were pressed into service for various reasons, including illness, during the month-long guilt phase of the trial, leaving an incomplete panel to determine Smith's fate.
A new date to begin the penalty phase with a new jury will be set Aug. 31.
Earlier this month, a Solano County jury convicted Smith on all charges, including killing a police officer during the performance of his duties, committing the murder while fleeing from a robbery and to avoid arrest, and intentionally killing the 45-year-old officer from Vacaville while lying in wait.
Capoot chased Smith, the suspect of a robbery of the Bank of America in Vallejo around 1:30 p.m. on Nov. 17, 2011. Police said Capoot first bumped Smith's GMC Denali during a vehicle pursuit to get him to stop, then chased Smith on foot.
Smith then shot Capoot three times in the back in the backyard of a residence on Janice Street in Vallejo.
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Police said Capoot was wearing body armor under his uniform, but a bullet still caused a mortal wound.
Chief Deputy Public Defender Oscar Bobrow told the jury during his closing argument that Smith was not the man who committed the bank robbery or killed Capoot, and he questioned whether there might have been another person in the GMC Denali since some of the officers' testimony was inconsistent.
Bobrow told the jury that officers were initially unsure whether there was a second suspect, and they continued searching long after Smith was taken into custody. He said no gunshot residue was found on Smith's hands.
Deputy District Attorney Karen Jensen told the jury Smith was hiding behind a house when he ambushed Capoot and fired three shots, one of which struck the soft flesh between Capoot's bullet-proof vest and traveled upward to his chest. Jensen deemed the slaying "an execution."
Jensen presented evidence linking Smith to the bank robbery, including a mask, sunglasses and gloves seen in the bank video that were found in Smith's car. She also said some of the clothes Smith wore during the robbery were shed and found by investigating officers at the house on Janice Street.
Smith's DNA was found on the mask and a pair of false teeth used in the disguise for the robbery, but Bobrow argued the DNA wasn't a perfect match, and the mask also was known to be in possession of Smith's cousin.
Jensen also said Smith was carrying a gun that fired bullets consistent with those fired where Capoot was killed.
An estimated 4,000 people attended a memorial service for Capoot at Vallejo High School's Corbus Field on Nov. 30, 2011.
Judge Peter B. Foor issued a gag order on Dec. 1, 2011 prohibiting attorneys from discussing the case.
