Sentence Hearing Begins : Courts: The jury will recommend whether or not a child-killer should be executed.

TIMES STAFF WRITER

A Ventura County jury trial opened Tuesday to decide whether a former Canoga Park day-care aide should be executed for the kidnap-murder of an 8-year-old boy whose gagged and burned body was found in Simi Valley 21 months ago.

Gregory Scott Smith, 23, pleaded guilty Oct. 8 in Ventura County Superior Court to charges that he abducted, raped and strangled Paul Bailly of Northridge and set his body ablaze on March 23, 1990.

Paul's mother, Mary Bailly, testified that she kissed her son goodby that day, as she did every school morning, before dropping him off at a latchkey program at his school in Northridge.

No one was outside Darby Avenue Elementary School when she left Paul behind that morning, Mary Bailly testified. "He was . . . just looking down at his folder and walking toward the gate."

Deputy Dist. Atty. Peter Kossoris asked her to describe her son.

"He was always very happy, he laughed all the time," she testified, her voice choking. "I think he probably would have grown up to be a comedian. He was always making people laugh. He had a very big heart. He was a very, very forgiving child, and he was a good boy."

During opening statements earlier, Kossoris said prosecutors hope to prove that Smith raped and killed Paul for sexual pleasure and to get revenge for complaints Paul made that led latchkey program officials to dismiss Smith.

Smith was fired on March 6, 1990, after Paul and other children complained that he had overdisciplined them and treated them roughly, Kossoris told jurors.

Kossoris said one official will testify that Smith said of Paul's complaints: "I'll get him back for that."

Just before noon on March 23, five hours after his mother kissed him goodby, Paul's body was found in a brush fire off Black Canyon Road near Simi Valley, Kossoris said.

Kossoris said evidence shows that Smith gagged Paul with a wad of blue cloth, wrapped five layers of duct tape around his head, handcuffed him and raped him, then strangled him and set his body on fire.

The prosecutor told jurors that they should reach a verdict recommending that the judge condemn Smith to die in the gas chamber for the crimes.

Smith's attorneys have said a brain disorder kept Smith from talking until age 6 and left him too mentally handicapped and immature to have intentionally killed Paul.

But the attorneys, James Farley and Willard Wiksell, are withholding an opening statement to jurors until all the prosecution witnesses are heard, which could take three weeks.

Judge Steven Z. Perren told jurors that they must sentence Smith either to death or life imprisonment because Smith admitted that he murdered Paul during the commission of other felonies. Those felonies, kidnaping and sexual assault, serve as special circumstances that require such a sentencing instruction under California law.

Jahn Bodnar, a plumber working on an addition at Smith's house, testified that on the morning of Paul's death, Smith borrowed a hammer to nail a blanket across a doorway in his house and forbade anyone to use the stairway behind the blanket.

"Several times he glanced over the blanket," Bodnar, who was born in Hungary, testified through an interpreter. "I could see him from the chin up."

Bodnar said he then heard two sets of footsteps on the stairs sometime between 11 a.m. and noon.

Another witness testified that he saw Smith and Paul driving west through the San Fernando Valley in a car that had a pair of handcuffs dangling inside.

During his opening statement, Kossoris had shown jurors a blackened pair of handcuffs that investigators found near Paul's burned body.

He also showed them photographs of blue shorts found by Smith's mother. Investigators say a swatch cut from the shorts was used for the gag that was stuffed into Paul's mouth and secured with duct tape wrapped around his head.

Investigators found duct tape, rope and gloves in Smith's car and a cassette tape in his bedroom, Kossoris said. He said Smith's voice is heard on the tape saying that "he didn't like Paul, that Paul talks back, that he was a behavior problem--things like that."

Kossoris also held up yellowed newspapers found in Smith's room that give details of the McMartin case, in which day-care workers were exonerated of molestation charges, and the prison release of Charles Rothenberg after he served time for setting fire to his son.

Testimony is scheduled to continue today.

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