State v. Smith
2017 Ohio 7740
| Ohio Ct. App. | 2017Background
- Police intercepted a FedEx delivery to 921 Chittenden Ave containing a karaoke machine with six kilos of cocaine; officers conducted a controlled delivery to the residence.
- Appellant James E. Smith, Jr. answered the door, signed for the package under a false name, moved it inside, and later drove away in a Mercury Sable titled to a company he runs; officers stopped the car and found the FedEx package on the backseat and a second karaoke machine with six more kilos of cocaine in the trunk.
- Multiple cell phones were seized from Smith and his business; forensic analysis linked Smith's phones to California numbers and FedEx tracking activity for shipments between California and Columbus.
- Co-defendant/witness Mark Chafin (passenger who moved the box) told the court he would invoke the Fifth Amendment to all further questioning; defense sought to admit an affidavit from Chafin (not in record) asserting innocence and sought to call him at trial.
- Jury convicted Smith of two counts of possession and two counts of trafficking (first-degree felonies based on amount). At sentencing Smith filed an affidavit of indigence; the trial court imposed mandatory fines totaling $20,000 (deferred during incarceration) and rejected a finding of indigency.
- On appeal Smith raised three errors: allowing Chafin to invoke the Fifth and not compelling testimony; excluding Chafin’s affidavit under Evid.R. 804(B)(3); and imposing the $20,000 fine despite his affidavit of indigence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by permitting Chafin to invoke the Fifth and not requiring question-by-question assertion | State: Court properly allowed invocation where witness, represented by counsel, unequivocally refused to answer further questions and there was a real risk of incrimination | Smith: Trial court should have required question-by-question assertion under Arnold; blanket invocation prevented testimony that would exculpate him | Court: No error; witness’ unequivocal, counsel-guided refusal and case facts supported Fifth Amendment risk; any procedural shortcoming harmless |
| Whether the trial court erred by excluding Chafin’s affidavit under Evid.R. 804(B)(3) | State: Affidavit was inadmissible hearsay and lacked corroborating circumstances showing trustworthiness | Smith: Affidavit was a declaration against penal interest and necessary to present a full defense | Court: No abuse of discretion; affidavit not in record and, on merits, trial court reasonably concluded it lacked the required indicia of trustworthiness |
| Whether the trial court erred by imposing mandatory fines after Smith filed an affidavit of indigence | State: Court considered ability to pay and properly imposed mandatory fines | Smith: Affidavit required waiver or further inquiry; fine violates R.C. 2929.18(B)(1) absent finding of ability to pay | Court: No error; record shows court considered present/future ability to pay (bond, cash, employment potential) and Smith failed to meet burden to prove inability to pay |
Key Cases Cited
- State v. Arnold, 147 Ohio St.3d 138 (Ohio 2016) (liberal construction of Fifth Amendment privilege; witness must show objectively reasonable danger of incrimination)
- State v. Kirk, 72 Ohio St.3d 564 (Ohio 1995) (trial court may exclude witness who will only assert the Fifth and offer no testimony)
- Hoffman v. United States, 341 U.S. 479 (U.S. 1951) (privilege requires a real and appreciable risk of incrimination)
- State v. Gipson, 80 Ohio St.3d 626 (Ohio 1998) (burden is on offender to demonstrate inability to pay mandatory fines under R.C. 2929.18)
- State v. Sumlin, 69 Ohio St.3d 105 (Ohio 1994) (admission of hearsay of unavailable declarant under Evid.R. 804 within trial court discretion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for abuse of discretion)