Smith v. Cook

Decision Date15 April 2020
Docket NumberNo. 17-4118,17-4118
Citation956 F.3d 377
Parties James H. SMITH, Petitioner-Appellant, v. Brian COOK, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: C. Harker Rhodes IV, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Jason Manion, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: C. Harker Rhodes IV, Erin E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Mary Anne Reese, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: SUTTON, BUSH, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge.

An Ohio jury convicted James Smith of crimes arising from twelve armed robberies that occurred over a six-month period. After exhausting his remedies in state court, Smith filed a habeas petition in federal district court. The district court rejected Smith's claims but granted a certificate of appealability on three issues. Having reviewed Smith's claims, we AFFIRM.

I.

Just after 2:00 a.m. on July 12, 2012, a masked gunman attempted to rob a Red Robin restaurant in Columbus, Ohio. Two employees escaped and flagged down a nearby police officer. Police quickly converged on the restaurant and spotted a man, matching the employees' description of the robber, running away from the restaurant. As he ran, the man discarded a red sweatshirt, do-rag, black tank top, and black workers' gloves with light-colored "CAT" emblems on the backs of the hands—all of which matched descriptions of the clothes worn by the Red Robin robber. In the pocket of the sweatshirt, officers found a handgun matching the one used in the Red Robin robbery. Police soon apprehended Smith nearby. Forensic analysis found DNA material matching Smith on the sweatshirt, tank top, and handgun.

A week later, an eleven-count indictment charged Smith with crimes arising from the Red Robin incident. Smith retained Javier Armengau, a local criminal defense attorney, as defense counsel. Columbus detectives soon connected Smith to a string of similar, unsolved restaurant robberies that had occurred between February and July of 2012, which the police had dubbed the "Restaurant Closer Robberies." These robberies and the Red Robin incident displayed "a strikingly consistent method of operation." State v. Smith , No. 13AP-973, 2015 WL 872753, at *3 (Ohio Ct. App. Mar. 3, 2015). Each involved "the robbery of a restaurant at or after closing time"; "[t]he employees" of each restaurant, "forced at gunpoint to assist the robber, were handled in similar ways"; and surveillance tapes revealed that the robber wore similar clothing in most of the incidents. Id. Until Smith's arrest, police had not identified any suspects connected to these robberies.

To confirm the connection, Columbus detectives requested cell phone records for a phone number that Smith, a prior offender, had given to his probation officer.1 The records revealed that Smith's phone had been used near the location of—and at the approximate time of—most of the robberies. Smith had no cell phone with him when he was arrested, and police never located the phone, but the records showed that after Smith's arrest, no outgoing calls were made on the device and all incoming calls went to voicemail. The records also showed 4,677 calls from Smith's girlfriend to the phone during the six-month period preceding Smith's arrest. Based on the above evidence, the Franklin County Prosecutor's Office filed a new 142-count indictment against Smith for crimes arising out of the Red Robin incident and the other Restaurant Closer Robberies—nineteen separate incidents in all. The prosecution subsequently dismissed the charges connected to one of those incidents; the counts arising from the remaining eighteen robberies proceeded to trial.

In April 2013, less than a month after the superseding indictment, Smith's attorney, Armengau, was himself arrested. A grand jury ultimately indicted him for eighteen sex crimes against five women. State v. Armengau , 93 N.E.3d 284, 292 (Ohio Ct. App. 2017). The indictment charging Armengau, like that charging Smith, was filed in the Franklin County Court of Common Pleas and initially assigned to the Franklin County Prosecutor's office. The county prosecutor, however, immediately requested that a special prosecutor from the Ohio Attorney General's office handle the case, "in order to avoid the appearance of either favoritism or bias against [Armengau] for the reason that he is a local criminal defense attorney that practices in this court on a regular basis and has pending cases as opposing counsel with assistant prosecutors from this office." See Notice of Appointment of Special Prosecutor, State v. Armengau , No. 13CR-04-2217 (Ohio Ct. C.P. Franklin Cty. May 6, 2013). For similar reasons, all the Franklin County judges presiding over the active matters Armengau was handling as counsel recused themselves from Armengau's case, including the judge handling Smith's case (Judge Frye). See Request for Recusal, State v. Armengau , No. 13CR-2217 (Ohio Ct. C.P. Franklin Cty. June 27, 2013).

At Smith's request, Armengau continued to represent Smith in his criminal defense through the end of trial. During Smith's trial, Armengau's criminal charges were "[u]nknown to the jury." Smith , 2015 WL 872753, at *2. Smith (through Armengau) sought and received continuances to better prepare for trial on June 17, 2013, July 11, 2013, and August 8, 2013. See Docket, State v. Smith , No. 13CR-1342 (Ohio Ct. C.P. Franklin Cty. Aug. 8, 2013). Smith's trial eventually took place at the end of September 2013, roughly six months after the superseding indictment.

At the final hearing the morning of trial, prosecutors told the judge that plea negotiations "ha[d] been very brief" because their proposed sentences were "so large in this matter that [Armengau] didn't believe any type of negotiations would be fruitful." Just that morning, the prosecutors had offered, and were still willing to accept, a plea deal resulting in twenty-seven years' imprisonment. The court then addressed Armengau, who conceded that he "did not share with [Smith] this morning that the offer was 27 years." Armengau said that "he and I had discussed before, and certainly we've been in court before and discussed [his potential sentence if convicted]." Armengau relayed that Smith was "aware of what the magnitude is of potential convictions" and said that he had not shared that morning's offer because he "just kn[e]w from our discussions before" that "there was nothing even in the 20-year range that was appealing to [Smith]." "[H]e's been in [prison] for some time," Armengau added. For that reason, Armengau "really ... never sat down" with the prosecutors to negotiate a deal because "nothing in [his] discussions with [Smith] ha[d] led [Armengau] to believe that [a 27-year sentence] would be up for consideration." Smith was present during this colloquy and did not object to the way defense counsel characterized his thinking.

Finally, turning to Smith, the court said:

I'm not going to take time now to have you talk any more to Mr. Armengau about a potential plea. You have time during this trial to think about it as you watch the evidence come in .... If you decide that you want to negotiate toward maybe pleading guilty to something in this case, tell Mr. Armengau, and we'll make sure you guys have time to talk privately, and then Mr. Armengau and you have time to talk to the prosecutors. Otherwise, we'll assume that you just simply want to go to trial. But you're facing a lot of time. If you want to at some point pull the plug and say, Okay, I'll take the deal, we'll give you time to figure out what that deal is and so forth, okay?

Smith nodded his head, and the prosecutors stated that the twenty-seven-year plea offer would "stay[ ] on the table," "at least for the first few days of trial." The offer apparently remained available until the jury retired for deliberations, and during seven days of trial proceedings Smith never asked for a break to discuss a possible deal with his attorney.

Per a prior agreement with Smith, the prosecution dismissed all charges related to one robbery after the close of trial. The jury ultimately convicted Smith for crimes arising out of twelve robberies and acquitted him of those arising from the remaining five. After the jury's verdicts, the judge entered bench verdicts on the prior-offender gun charges,2 which he matched to the jury verdicts—guilty on prior offender charges arising from twelve incidents, and not guilty as to all others. Smith was sentenced to eighty-four years' imprisonment.

In November 2013, Smith (through new, appointed counsel) appealed his convictions to the Ohio Court of Appeals, which affirmed. Smith , 2015 WL 872753, at *3. The Ohio Supreme Court declined discretionary review. State v. Smith , 142 Ohio St.3d 1520, 2015 -Ohio- 2341, 33 N.E.3d 67 (2015). Smith then filed this petition pursuant to 28 U.S.C. § 2254. The district court denied relief but granted a certificate of appealability on the three issues presented in this appeal. Smith v. Warden, Se. Corr. Inst. , No. 2:16-CV-533, 2017 WL 4349095, at *31–32 (S.D. Ohio Sept. 29, 2017).

II.

Smith first raises a Confrontation Clause challenge to his convictions. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...."). Because of the overwhelming evidence that the Restaurant Closer Robberies had in fact occurred, Armengau decided to pursue a misidentification defense. He devised a trial strategy that would focus on highlighting discrepancies in how witnesses described the robber in each incident, the differences between those descriptions and Smith, and the cell phone records connecting Smith to the robberies—a connection Armengau deemed flimsy. Consistent with this strategy, Armengau negotiated a deal whereby, for each robbery, the state would...

To continue reading

Request your trial
36 cases
  • Wofford v. Woods
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 13, 2020
    ...(6th Cir. 2010) ; see also, e.g. , Bauder v. Dept. of Corrections , 619 F.3d 1272, 1274–75 (11th Cir. 2010). But see Smith v. Cook , 956 F.3d 377, 387–88 (6th Cir. 2020) (casting doubt on the "continued vitality" of Campbell and Jells after Johnson , in light of the latter's "healthy presum......
  • Johnson v. Bobby
    • United States
    • U.S. District Court — Southern District of Ohio
    • December 28, 2021
    ... ... the facts before it are sufficient to create a reasonable ... doubt as to the defendant's competence. Pate v ... Smith , 637 F.2d 1068, 1071 (6th Cir. 1981), citing ... Drope , 420 U.S. at 180. In Drope v. Missouri , ... the Supreme Court described the ... most favorable to the prosecution to preserve the jury's ... role as factfinder. Smith v. Cook , 956 F.3d 377, 396 ... (6th Cir. 2020), quoting Jackson , 443 U.S. at 326 ... It looks at “whether there is sufficient evidence ... ...
  • McCray v. Horton
    • United States
    • U.S. District Court — Western District of Michigan
    • August 24, 2021
    ... ... handed to prison authorities for mailing to the federal ... court. Cook v. Stegall , 295 F.3d 517, 521 (6th Cir ... 2002) ... The ... petition raises 11 grounds for relief, as follows: ... findings of state appellate courts, as well as the trial ... court. Sumner v. Mata , 449 U.S. 539, 546-547 (1981); ... Smith v. Jago , 888 F.2d 399, 407 n.4 (6th Cir ... 1989) ... Section ... 2254(d) limits the facts a court may consider on ... ...
  • Ruza v. Mich. Dep't of Corr.
    • United States
    • U.S. District Court — Western District of Michigan
    • July 9, 2021
    ... ... that the procedural rule applies, it does not constitute a ... procedural default. Smith v. Cook, 956 F.3d 377, 385 ... (6th Cir. 2020) (citing Clinkscale v. Carter, 375 ... F.3d 430, 441-42 (6th Cir. 2004) (“Although the ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Trials
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...memory, and impeach witness’s credibility by demonstrating bias, prejudice, ulterior motive, or untruthful disposition); Smith v. Cook, 956 F.3d 377, 390-91 (6th Cir. 2020) (confrontation right allows cross-examination of witness in defendant’s presence unless defendant explicitly and knowi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT