State v. SmithState v. Smith
Joshua L. Smith, #A527-017, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio45601, defendant-appellant, pro se
O P I N I O N
M. POWELL, P.J.
{¶ 1} Defendant-appellant, Joshua Smith, appeals a decision of the Fayette County Court of Common Pleas denying his motion for a new trial and his application for postconviction DNA testing.
{¶ 2} In the early morning hours of January 1, 2006, the Washington Court House Police Department received a call from appellant who reported he had witnessed the murder
{¶ 3} Later that same morning, while being questioned by police, appellant claimed J.M., a former friend and current Chillicothe resident, got into an argument with Morrison and hit her on the head with a PVC pipe while the trio was walking from a local bar. Upon investigating appellant‘s claim further, the police discovered that J.M. was not in Washington Court House that morning. Thereafter, following a police investigation, appellant was arrested and indicted for the murder of Morrison.
{¶ 4} A jury trial was held in July 2006. At trial, appellant testified that his original statement to police implicating J.M. in Morrison‘s murder was false. Instead, appellant testified he left the bar with Morrison that night, but that after she had walked ahead of him, he saw her attacked and beaten by two men smoking crack cocaine in an alley behind his former residence. After seeing Morrison attacked, appellant became scared, ran into the vacant home, and hid in a small furnace room. Thereafter, while appellant hid in the furnace room, the two men dragged Morrison inside the house and hit her with a PVC pipe. Although he claimed to know one of the men who attacked Morrison, appellant refused to identify the attacker because he felt threatened and believed that his family was in danger.
{¶ 5} Phillip Henry testified on behalf of the state. Henry testified he was an acquaintance of appellant who had previously played pool with him at a bar. Henry further testified that while serving time for DUI and a probation violation, he was placed in a four-man cell with appellant, who, at the time, was awaiting trial. The other two cellmates were Jeremy Hudson and Mike Wagner. After Henry was placed in the cell with appellant, the two began to talk and appellant asked Henry to be a witness for his defense and “to say that [he] was [working] on the bar that night.” Appellant told Henry that he almost confessed
{¶ 6} On July 14, 2006, the jury found appellant guilty of murder. That same day, the trial court sentenced appellant to a mandatory prison term of 15 years to life. Appellant appealed his conviction. In January 2009, we affirmed appellant‘s conviction. State v. Smith, 12th Dist. Fayette No. CA2006-08-030, 2009-Ohio-197.
{¶ 7} In 2013, appellant filed an application for DNA testing and an amended application in 2014. Appellant also filed a motion for a new trial, arguing ineffective assistance of trial counsel and Brady violations by the state pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). On December 7, 2015, the trial court denied appellant‘s motion for a new trial and his applications for postconviction DNA testing.
{¶ 8} Appellant now appeals, raising four assignments of error. The first and second assignments of error will be addressed together.
{¶ 9} Assignment of Error No. 1:
{¶ 10} TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO INVESTIGATE AND SUBPOENE WITNESSES IN VIOLATION OF THE 6TH AND 14TH AMENDMENT RIGHTS TO THE UNITED STAT. [sic]
{¶ 11} Assignment of Error No. 2:
{¶ 12} THE CUMMLATIVE EFECT OF COUNSEL NOT INVESTIGATING AND/OR SUBPOENA WITNESSES DENIED THE DEFENDANT A FAILR TRIAL IN VIOLATION OF HIS 6TH AND 14TH AMENDMENT RIGHTS TO THE UNITED STATES CONSTITUTION. [sic]
{¶ 13} Appellant argues he received ineffective assistance of counsel because his
{¶ 14} Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. State v. Szefcyk, 77 Ohio St.3d 93, 96 (1996); State v. Hicks, 12th Dist. Butler No. CA2004-07-170, 2005-Ohio-1237, ¶ 10. Appellant‘s ineffective assistance of counsel claim raises both an issue he raised in his direct appeal and which we rejected (failure to investigate appellant‘s cellmates), and an issue that could have been raised on direct appeal (failure to subpoena appellant‘s cellmates). Appellant is consequently barred by res judicata from raising these issues. See State v. Chamberlain, 12th Dist. Brown No. CA2015-03-008, 2015-Ohio-2987.
{¶ 15} Appellant‘s first and second assignments of error are overruled.
{¶ 16} Assignment of Error No. 3:
{¶ 17} THE STATE‘S FAILURE TO TURN OVER STATEMENT‘S TO THE DEFENSE WAS IN VIOLATION OF CRIM.R. 16 AND BRADY V. MARYLAND, AND VIOLATED THE DEFENDANT‘S 6TH AND 14TH AMENDMENT RIGHTS TO THE UNITED STATES CONSTITUTION. [sic]
{¶ 18} Appellant argues the state improperly withheld favorable evidence from the defense in violation of the United States Supreme Court‘s opinion in Brady, 373 U.S. 83. Specifically, appellant asserts the state failed to turn over to him statements from Grace Armstrong, Melody Reid, and Gregory Haddox. In their statements, all three witnesses
{¶ 19} “The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” State v. Johnston, 39 Ohio St.3d 48 (1988), paragraph four of the syllabus, citing Brady. Evidence is material under Brady “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Johnston at paragraph five of the syllabus. ”Brady and its progeny apply only to evidence unknown to the defendant at the time of the trial.” State v. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 40.
{¶ 20} In order to establish a Brady violation, a defendant must show that (1) the evidence at issue was favorable to him because it was either exculpatory or impeaching; (2) the evidence was suppressed by the state, either willfully or inadvertently; and (3) prejudice ensued. State v. Widmer, 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-62, ¶ 91, citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936 (1999). The Brady test is stringent. State v. Jackson, 57 Ohio St.3d 29, 33 (1991). The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense. State v. Fulton, 12th Dist. Clermont No. CA2002-10-085, 2003-Ohio-5432, ¶ 33, citing United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2393 (1976).
{¶ 21} In their statements, Armstrong and Haddox both state that on the night of the murder, Morrison gave them a ride from Eddy‘s Bar to My Place Bar, a young African-American man rode with them, Morrison dropped off Armstrong and Haddox at My Place
{¶ 22} Upon reviewing the record, we find that the state‘s failure to provide the statements from Armstrong, Reid, and Haddox to appellant did not violate Brady because the statements were not material to appellant‘s guilt or punishment and there is no reasonable probability that the outcome of appellant‘s trial would have been different had the statements been provided to appellant.
{¶ 23} Whether in his initial interview by the police or during his trial testimony, appellant‘s statements indicate he was with Morrison at the scene of the crime after he and Morrison both left Eddy‘s shortly before 2 a.m. on January 1, 2006. At trial, appellant testified that his original statement to police implicating J.M. in Morrison‘s murder was false. Appellant then testified he was with Morrison shortly before her murder and that she was murdered by two men smoking crack cocaine in an alley behind his former residence. By contrast, the witness statements all place Morrison at an earlier time on the night of the murder, either at Eddy‘s or in her car, and do not corroborate appellant‘s trial testimony with regard to the circumstances of Morrison‘s murder. None of the witnesses had any firsthand knowledge regarding the murder, nor do they support appellant‘s theory that he witnessed
{¶ 24} We also note that while the witness statements were never given to appellant, the names of the witnesses and a summary of their statements were provided to appellant in February 2006 as part of the state‘s response to appellant‘s discovery request. Specifically, the names of the witnesses and a summary of their statements were included in notes from the Washington Court House Police Department which were part of the state‘s discovery package. The summary of the witness statements indicates that at Eddy‘s on the night of the murder, (1) Haddox talked to Morrison before he left the bar around 11:30 p.m. on December 31, 2005, (2) Armstrong saw Morrison talk with an African-American man who was looking for sex, (3) Morrison left and returned to the bar several times that night, (4) according to Reid, an African-American man was trying to make sexual advances toward Morrison, and (5) the last time Reid saw Morrison at the bar was around 2 a.m. on January 1, 2006. The names of the witnesses and a cursory description of their statements were also listed in a separate document included in the discovery package.1
{¶ 25} In light of the foregoing, we find that the state did not suppress evidence that was material either to appellant‘s guilt or punishment, and as such, there was no Brady violation.2
{¶ 26} Appellant‘s third assignment of error is overruled.
{¶ 27} Assignment of Error No. 4:
{¶ 28} THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE
{¶ 29} Appellant argues the trial court erred in denying his application for postconviction DNA testing because the trial court did not comply with the requirements of
{¶ 30}
{¶ 31} The trial court provided three reasons for denying appellant‘s application for postconviction DNA testing: (1) the application was “untimely;” (2) the application “could have been raised by [appellant] in his original appeal;” and (3) “there is no substantive authority which requires such testing under the circumstances disclosed by the record.”
{¶ 32} Although the trial court provided reasons for denying appellant‘s application for DNA testing, we find that we must remand the case to the trial court because we are unable to assess the appropriateness of the trial court‘s denial of the application.
{¶ 33} The trial court first denied the application on the ground it was untimely. However, there are no timeliness requirements under
{¶ 34} The trial court next denied the application on the ground it could have been raised by appellant in his original appeal. However,
{¶ 35} Finally, the trial court denied the application because “there is no substantive authority which requires such testing under the circumstances disclosed by the record.” Because the trial court‘s statement is vague and conclusory and does not cite any statutory provision in support, we find we are unable to discern what the trial court means. It may be that this reason relates to specific criteria under
{¶ 36} Accordingly, because we are unable to review the trial court‘s decision, we
{¶ 37} Appellant‘s fourth assignment of error is sustained.
{¶ 38} Judgment affirmed in part and reversed in part, and cause remanded to the trial court.
S. POWELL, J., concurs.
PIPER, J., concurs in part and dissents in part.
PIPER, J., concurring in part and dissenting in part.
{¶ 39} While concurring in the resolution of the first, second, and third assignments of error, I must respectfully dissent in reversing and remanding on the fourth assignment of error. For the foregoing reasons, I would affirm on the fourth assignment of error as well.
{¶ 40} The majority determines that the trial court abused its discretion in stating its reasons for denying appellant‘s postconviction DNA testing request, because the majority is “unable to discern what the trial court means.” On the other hand, I find the trial court‘s reasons for denying the application clearly mean that the trial court found
{¶ 41} The trial court stated three independent reasons for denying appellant‘s application for postconviction DNA testing pursuant to
{¶ 42} As we stated in Curtis, unless the appellant establishes the criteria set forth in
{¶ 43} One of the reasons in Curtis for denying the postconviction DNA testing request was the trial court‘s reasoning that at the time of Curtis’ trial, DNA testing was generally accepted and the results of DNA testing were generally admissible in evidence. 2015-Ohio-2460 at ¶ 13. This same reasoning is applicable here, which is what the trial court indicated when stating the application for postconviction DNA testing was “untimely.”
{¶ 44} At the time of appellant‘s trial, DNA testing was generally accepted and the results of DNA testing were generally admissible in evidence.4 In other words, appellant cannot establish the criteria in
{¶ 45} Appellant clearly attempts to misapply the statutes authorizing postconviction DNA testing. In his case, DNA testing, or the lack of DNA use, should have been an issue raised in his direct appeal. During an initial interview with the police and at trial, appellant stated he was with the homicide victim at the scene close in time to her murder. Therefore, the presence of his DNA would not be unexpected. Similar to our determination in Curtis, “the presence of another person‘s DNA would not exonerate appellant, nor would the DNA establish the time that the DNA was placed on [the particular object to be tested].” 2015-Ohio-2460 at ¶ 14. At the time of appellant‘s trial herein, DNA evidence could have been tested and any issue regarding its existence, or use, should have been raised during his “original appeal” as stated by the trial court.
{¶ 46} Due to appellant‘s application, the trial court examined appellant‘s request in the context of the record as well as the criteria in
{¶ 47} The majority‘s reliance upon State v. Hickman, 9th Dist. Summit No. 22279, 2005-Ohio-472, is misguided. In Hickman, the trial court gave no reasons for denying the application for postconviction DNA testing. While the majority reverses for an abuse of discretion in denying appellant‘s application, the trial court sub judice did give “reasons” as
{¶ 48} Again, similar to Curtis, “[a]lthough a more complete explanation might be preferable, the statute does not require it.” 2015-Ohio-2460 at ¶ 18, citing State v. Galloway, 10th Dist. Franklin No. 07AP-611, 2008-Ohio-3470 at ¶ 16. While the majority may prefer that the trial court clarify a factual basis for its reasons,