State v. Smith, 2018 Ohio 4691

Marshall R. Smith was indicted for second-degree felonious assault after Laura Plummer testified he choked her, rendered her unconscious, and left her with visible injuries; Smith pleaded not guilty and claimed the choking was consensual during rough sex.
At trial Plummer denied any sexual relationship with Smith; the jury convicted Smith of felonious assault and he was later sentenced to a mandatory four-year term.
After conviction Smith moved for a new trial under Crim.R. 33 and Brady, alleging the State failed to disclose an audio recording of a pretrial phone call between Detective Vincent Mason and Plummer that contained exculpatory/impeachment material.
Smith also relied on post-verdict statements by his former trial counsel and a third party (Ferguson) suggesting Plummer had been uncertain about whether she and Smith had sex; counsel claimed Mason indicated Plummer told him she could not recall.
At the hearing the court admitted the recording and found Mason credible: Mason testified he had not been told Plummer said she couldn’t recall sex, and his alleged post-verdict remark to defense counsel was a poorly timed joke. The court found the recording largely cumulative or not materially favorable to Smith.
The trial court denied the new-trial motions; the appellate court reviewed the Brady claim de novo and affirmed, concluding nondisclosure did not materially prejudice the defense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether nondisclosure of the Mason–Plummer recording violated Brady (due process)	State: recording was cumulative or contained no materially exculpatory information and omission was inadvertent	Smith: recording contained favorable impeachment/exculpatory material (hesitation, uncertainty about sex, other statements) that was material and withheld	No Brady violation; recording was mostly cumulative or not favorable/material, so no reasonable probability of a different outcome
Whether Ferguson’s statements or counsel’s post-verdict report warranted a new trial	State: Ferguson did not hear trial testimony and his assertions were inadmissible; counsel’s account of Mason’s comment was not reliable	Smith: Ferguson’s information and counsel’s account showed Plummer had been uncertain and State knew; this undermined credibility	Court excluded Ferguson’s statements as inadmissible opinion and found Mason’s alleged concession was a joke; not grounds for new trial

Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecution’s suppression of material, favorable evidence violates due process)
United States v. Bagley, 473 U.S. 667 (U.S. 1985) (evidence is material if it creates a reasonable probability the result would differ)
United States v. Agurs, 427 U.S. 97 (U.S. 1976) (materiality standard focuses on effect on guilt or innocence, not trial preparation)
State v. LaMar, 95 Ohio St.3d 181 (Ohio 2002) (abuse-of-discretion standard for Crim.R. 33 generally)
State v. Johnston, 39 Ohio St.3d 48 (Ohio 1988) (Brady claims reviewed under due-process analysis rather than abuse of discretion)
State v. Brown, 115 Ohio St.3d 55 (Ohio 2007) (undisclosed evidence not material merely because it would aid trial preparation)