Smith v. Jago

• Decision Date: 04 January 1990
• Docket Number: No. 88-3775,88-3775
• Citation: 888 F.2d 399
• Parties: Arthur H. SMITH, Petitioner-Appellee, v. Arnold R. JAGO, Supt., Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 399

888 F.2d 399

Arthur H. SMITH, Petitioner-Appellee, v. Arnold R. JAGO, Supt., Respondent-Appellant.

No. 88-3775.

United States Court of Appeals, Sixth Circuit.

Argued March 28, 1989.

Decided Oct. 20, 1989.

Rehearing and Rehearing En Banc Denied Jan. 4, 1990.

George H. Lancaster, Jr. (argued), Ohio Public Defender Com'n and Arthur H. Smith, Columbus, Ohio, for Arthur H. Smith, petitioner-appellee.

John J. Gideon (argued), Office of the Atty. Gen. of Ohio, Columbus, Ohio, for Arnold R. Jago, respondent-appellant.

Before: ENGEL, Senior Circuit Judge; ^* BOGGS, Circuit Judge; and COHN, District Judge. ^**

ENGEL, Senior Circuit Judge.

Respondent Arnold Jago, Superintendent of the London Correctional Institution, appeals from a judgment of the United States District Court for the Southern District of Ohio granting Petitioner Arthur Smith's petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 and from the denial of a motion to alter or amend that judgment pursuant to Fed.R.Civ.P. 59(e). The principal issue on appeal is the extent to which the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), apply where it is alleged that deficient conduct by trial counsel adversely affected the outcome of the defendant's direct appeal as of right. Also involved is the deference to be accorded a state appellate court's determination of a mixed question of law and fact made by the appellate court while reviewing the denial of a petition for post-conviction relief after a full evidentiary hearing in the state trial court.

I.

At approximately 10:00 p.m. on September 6, 1980, a robbery occurred at El Rancho Grande Restaurant in Wooster, Ohio. At least three men dressed in army fatigues and wearing ski masks committed the crime. The men, brandishing an assortment of weapons, ordered the employees and patrons to the floor and took their watches, wallets, jewelry and cash. The approximately thirty victims were then placed in the restrooms, where they remained until after the robbers left. Police officers arrived at the scene and interviewed the witnesses, but were unable to obtain any positive evidence as to the identities of the men who had committed the robbery. Physical evidence found by the police at the scene included bullet fragments fired by one of the men involved and a spent shell casing.

Two weeks later, on September 20, 1980, City of Upper Arlington police involved in an investigation of a "man-with-a-gun" report were called to the Scioto Trails, a local restaurant. In the parking lot of that establishment they found and impounded an automobile, later determined to be registered in the name of Gary Burress, one of Petitioner Smith's codefendants. Inside the car, the police found, among other things, an AR-15 automatic rifle, a wallet containing Smith's driver's license, a watch later identified as belonging to Smith, a watch later identified as being the property of one of the El Rancho Grande robbery victims, and miscellaneous clothing.

That same night, Ronald Bondurant, Smith's other codefendant, was stopped not far from the Scioto Trails by a police officer. The officer found in Bondurant's possession a .45 caliber automatic weapon, a gas mask, and a flashlight. Examination of Bondurant's papers disclosed a receipt issued to him for the purchase of an AR-15 rifle and ammunition. It was later learned that the receipt was for the weapon found in Burress' car, which tests indicated had fired the bullet found at the El Rancho Grande. Another police officer picked up Smith in Upper Arlington that same night. Smith allegedly explained his presence there by telling the officer that three men had kidnapped him in Columbus, had taken him to Upper Arlington, and had dumped him in the street after taking his watch and wallet. Smith, who was held briefly on an outstanding warrant for a Grand Theft which occurred in 1975, was later released.

Smith and his two codefendants were subsequently arrested and charged with aggravated robbery. Ohio Rev.Code Ann. Sec. 2911.01. All three were incarcerated at the Wayne County Jail. Shortly before Smith and his codefendants were tried before a jury, Smith's trial counsel learned of the existence of a prosecution witness, named Gerry Wayt, who claimed that Smith's two codefendants had told him that they and two other men, neither of whom was Smith, had committed the El Rancho Grande robbery. Wayt, who has a lengthy criminal record, had been confined with Smith's codefendants while they were awaiting trial.

After the trial began on April 6, 1981, but before any testimony was heard, Smith's trial counsel learned that the prosecution had subsequently decided not to call Wayt. Smith's trial counsel then orally renewed a previously denied motion to sever Smith's trial from that of his codefendants. Claiming that he intended to use the subsequently discovered statement of Wayt, Smith's trial counsel argued that because Smith's defense would inculpate his codefendants, severance was required. The trial court denied the motion.

Smith's trial counsel later attempted to have Wayt's testimony introduced under an exception to the "hearsay rule." At an in-chambers conference, Smith's trial counsel explained his strategy to the trial judge. By calling Smith's codefendants to the stand and inducing each to invoke his Fifth Amendment privilege against self-incrimination, Smith's trial counsel would have them declared "unavailable." This, it was claimed, would allow Smith's counsel to move to admit Wayt's testimony under the admission against interest exception to the hearsay rule. Ohio R.Evid. 804(B)(3). Fearing a mistrial, the trial court instructed Smith's trial counsel not to call his codefendants to the stand, and Smith's trial counsel complied with the trial court's instructions. No effort was made to preserve the proffered testimony for review on appeal.

In addition to the facts set out above, the evidence at trial revealed that on October 6, 1980, many or all of the witnesses who were at the El Rancho Grande on the night of the robbery participated in a photographic lineup, but were unable to make a positive identification of any of the men involved. At trial, one witness was able, however, to identify Smith with "reasonable certainty" as one of those involved in the El Rancho Grande robbery. Two other witnesses thought Smith was involved or that he looked familiar. A significant number of the other witnesses, however, were unable to make any identification at all.

Confronted with this evidence, Smith presented an alibi defense. Smith and his witnesses testified that on the day of the robbery, he was helping members of his fiance's family move into a new home. In support of this claim, Smith introduced into evidence a receipt identifying himself as the individual who rented a U-Haul truck on the day of the robbery. The receipt indicated that the truck was rented by Smith at 2:00 p.m. and returned at 6:00 p.m. The U-Haul employee who was working at the rental location at issue on the date in question testified that while he could not identify Smith at trial, he would have required Smith, in accordance with company procedure, to show his driver's license as identification. Smith and his codefendants were each convicted of one count of aggravated robbery, and Smith was sentenced to a term of seven to twenty-five years imprisonment.

Smith challenged his conviction on direct appeal, claiming inter alia, that the trial court erred in denying his motion to sever. The Ohio Court of Appeals affirmed the conviction, finding that any error committed by the trial court was harmless because Smith's trial counsel had failed to preserve Wayt's testimony properly for appeal. The Ohio Supreme Court dismissed Smith's motion for leave to appeal.

Smith then sought post-conviction relief in state court, claiming that he had been denied effective assistance of counsel. In his petition, Smith argued, through new counsel, that his trial counsel's failure to call Wayt as a witness and to preserve the proffered testimony in the record prejudiced the result at trial and on appeal. The trial judge conducted an evidentiary hearing at which Smith's trial counsel testified. By stipulation, the parties introduced a statement of Wayt's proffered testimony. The government also introduced the testimony of one Gary Dees, who stated that Smith and his codefendants had admitted committing the robbery. The government claimed that, despite the fact that Dees had a criminal record, it would have called him to testify had Wayt been allowed to testify at Smith's trial. The trial court found that Smith's counsel had not been ineffective and that Smith had not been prejudiced by his counsel's actions. The Ohio Court of Appeals affirmed, agreeing that no prejudice had resulted. The Ohio Supreme Court again denied leave to appeal.

Smith then filed a pro se petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio. In his petition, Smith alleged that he was denied effective assistance of counsel because his trial counsel failed "to adduce evidence known to be exculpatory to petitioner." The district court granted Smith's petition, ordering that a writ of habeas corpus issue unless the State of Ohio commenced a retrial of the petitioner within 30 days. In its opinion, filed on March 10, 1988 ("March Opinion"), the district court found that Smith was denied effective assistance of counsel because his trial counsel had failed to preserve the proffered testimony on the record for appeal, and thus prejudiced Smith in his direct appeal. Respondent Jago then moved to alter or amend the judgment of the district court, claiming that the district court erred in finding that Smith had been prejudiced. The district court denied the motion in an opinion and order filed on July 25, 1985 ("July Opinion").

Repeating claims raised in his ...