State v. Smith
2017 Ohio 776
| Ohio Ct. App. | 2017Background
- On Feb. 2, 2014 Michael Macklin was killed in a drive‑by shooting in East Toledo; Deontay Smith (appellant) was indicted on aggravated murder, murder, two counts of felonious assault, discharge of a firearm on/over a roadway, participating in a criminal gang, and related specifications.
- Key eyewitness Blair Hueston (passenger in victim’s car earlier; later a passenger in an SUV from which shots were fired) identified Smith as the shooter after initially giving inconsistent statements and claiming fear of retaliation.
- Police recovered a Glock 22 (40 cal.) and ammunition during a search of Jerry McNeal’s home; Matthew Kroggel testified he sold that Glock to Smith weeks earlier.
- Detective William Noon (gang expert) testified Smith was affiliated with the Stickney 33 Bloods, appeared in gang‑sign photos, associated with known members, and that the gang engages in drug sales; the jury heard a gang‑related song referencing threats.
- The jury convicted Smith on Counts 1–6 and found all gang/firearm specifications true; trial court imposed life with parole eligibility after 25 years (for merged murder counts) plus consecutive specification terms.
- Smith appealed raising five assignments of error: sufficiency of gang participation evidence and specifications; prosecutorial misconduct; ineffective assistance for failing to object to summation; manifest weight challenge; sentencing error for imposing post‑release control on aggravated murder.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Smith) | Held |
|---|---|---|---|
| Sufficiency of evidence for "actively participates" under R.C. 2923.42(A) | Evidence (associations, photo of gang sign, drug sales, eyewitness ID of shooter, sale of gun) shows Smith took an active role benefitting the gang | State proof only showed passive association; insufficient to prove active participation | Affirmed: evidence sufficient to prove active participation beyond passive association |
| Sufficiency of criminal‑gang specifications (R.C. 2941.142) | Smith committed violent felonies while participating in the gang (same facts as above) | Specifications not proven because participation element lacking | Affirmed: specifications supported by sufficient evidence |
| Prosecutorial misconduct in rebuttal closing | Prosecutor’s comments about defense not questioning certain witnesses were permissible commentary on inferences from evidence | Comments improperly shifted burden and prejudiced jury | Not well‑taken: remarks improper in part but did not deprive Smith of a fair trial |
| Ineffective assistance for failing to object to summation | N/A (State) | Trial counsel’s failure to object was professionally deficient and prejudicial | Not well‑taken: no deficient performance because remarks did not amount to reversible misconduct; jury instructed to disregard argument as not evidence |
| Manifest weight of the evidence (overall guilt) | N/A (State) | Jury verdict against manifest weight given witness inconsistencies and incentives to lie | Not well‑taken: credibility determinations for witnesses were for jury; not an exceptional case requiring reversal |
| Sentencing: post‑release control imposed on aggravated murder | N/A (State) | Trial court erred by imposing post‑release control on an unclassified felony (aggravated murder) | Well‑taken: delete 5‑year mandatory post‑release control for aggravated murder; otherwise affirm judgment |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (Ohio 1997) (standard for reviewing sufficiency of the evidence)
- State v. Williams, 74 Ohio St.3d 569, 660 N.E.2d 724 (Ohio 1996) (Jenkins/Jenks sufficiency standard language cited)
- State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (Ohio 1991) (definitive sufficiency test)
- State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (Ohio 1990) (prosecutorial misconduct test)
- State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (Ohio 1987) (prosecutorial misconduct standard requiring deprivation of fair trial)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑pronged test for ineffective assistance of counsel)
- State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (Ohio Ct. App. 1984) (manifest weight standard)
- Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (Ohio 1984) (deference to trier of fact on witness credibility)
- State v. Clarke, 119 Ohio St.3d 239, 893 N.E.2d 462 (Ohio 2008) (post‑release control applicability to classified felonies)