State v. SmithState v. Smith
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 16, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger Smith, pro se.
{1} Defendant-appellant Roger Smith appeals the Hamilton County Common Pleas Court‘s judgment overruling his “Motion for Leave to File Motion for New Trial pursuant to
Procedural Posture
{2} In 2007, Smith was indicted with his brother Ricky on two counts of murder in violation of
{3} The altercation occurred in the front yard of Kristal Williams‘s house, in the presence of Williams and others who had gathered there. Williams and her friends Rasheka Smith and Markuita Dale testified at trial. They provided consistent accounts of the events leading to Gorley‘s fatal injury, and when pressed by the defense on cross-examination, each denied appearing at trial under threat or intimidation by the police or the prosecuting attorney.
{4} The witnesses testified that Gorley had stopped by Williams‘s house to use a phone to summon a bootleg cab. Gorley then waited for his ride on Williams‘s front porch, where the witnesses sat drinking and talking. Gorley was still there an hour or so later when Smith, who lived on the street directly behind Williams‘s house, approached the porch and engaged Gorley in a verbal exchange. The nature of that exchange was not apparent to the witnesses, but it ended with Williams asking Smith to leave.
{5} A half hour later, as Gorley was descending the porch steps, Smith‘s brother Ricky emerged from the side of Williams‘s house and struck Gorley in the back of the head with a claw hammer. Smith followed and began punching Gorley. Gorley fought back, and all three men went to the ground, where they briefly
{6} The three witnesses observed that the chest area of Gorley‘s shirt was bloody, and Rasheka Smith saw “slits” on Gorley‘s chest and arms. Dale summoned emergency medical assistance. Gorley was taken to the hospital, where he died three days later. The cause of death was a stab wound to his heart.
{7} The fight occurred after dark, with limited illumination from streetlights and a neighboring building. And the witnesses admitted to having shared a pint of liquor that day. Nevertheless, the witnesses were, in varying degrees, acquainted with the Smith brothers and thus readily identified them as Gorley‘s assailants. And the witnesses consistently maintained that they had not seen a knife in anyone‘s hand.
{8} From the scene, the police recovered a knife blade laying in blood on the ground in Williams‘s side yard and a knife handle near a truck parked in the rear yard of Smith‘s residence. And the police also observed small cuts on Smith‘s hands. The knife blade and handle were found to bear traces of Gorley‘s blood. Gorley‘s blood was also found on Smith‘s pants and right shoe and as part of a mixture of blood on Smith‘s left shoe. Ricky was excluded, but Smith could not be excluded, as a source of that mixture.
{9} The jury found Smith guilty of murder as charged in both counts of the indictment, and the trial court imposed concurrent prison terms of 15 years to life. In the direct appeal, this court overruled assignments of error challenging, among other things, the weight and sufficiency of the evidence to support the convictions, but we remanded for resentencing consistent with
{10} Smith also challenged his conviction in a timely-filed petition under
2019 Motion for Leave to File a Motion for a New Trial
{11} In 2019, Smith filed with the common pleas court his “Motion for Leave to File Motion for New Trial pursuant to
{12} Rasheka Smith averred in her affidavit that she had been “coerced by the Detectives and the State to testify,” that her testimony was “the product of coercion by the prosecution,” that the state and police “threatened [her] both directly and indirectly,” and that the police “continued to come to [her] job and harass [her] concerning appearing at court and testifying for their cause.” She also asserted that she had not seen “the disturbance” between defendant and Gorley, because of “the
{13} In his
Crim.R. 33(B) Motion for Leave
{14} In this appeal, Smith presents two assignments of error. In his first assignment of error, he contends that the common pleas court abused its discretion in denying his
{15} A new trial may be granted under
{16} On a
{17}
{18} Smith did not support his motion for leave with his own affidavit attesting to the circumstances of securing Rasheka Smith‘s affidavit. Rasheka Smith, in her affidavit, did not speak to the circumstances of making that affidavit. Also, the record of the proceedings leading to Smith‘s conviction shows that the defense had explored with the eyewitnesses at trial the dim lighting conditions and alleged coercion by the police or the prosecuting attorney. Thus, neither the motion for leave, with its supporting evidentiary material, nor the record of the proceedings at trial provided any evidence that Smith had been unavoidably prevented from timely moving for a new trial on the proposed grounds.
{19} Because the evidence offered in support of the motion for leave did not demonstrate unavoidable prevention, the common pleas court did not abuse its
Crim.R. 33(A)(1), (2), and (5) Motion for a New Trial
{20} In his second assignment of error, Smith contends that the common pleas court erred in not granting him a new trial. We do not reach the merits of that challenge.
{21} Smith‘s notice of appeal conferred upon this court jurisdiction to review only the judgment from which he appealed. In that judgment, the common pleas court overruled Smith‘s
We Affirm
{22} The common pleas court neither abused its discretion in declining to conduct a hearing, nor erred in overruling Smith‘s
Judgment affirmed.
MOCK, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.