Smith v. Warden, Toledo Corr. Inst.
| Decision Date | 18 June 2019 |
| Docket Number | No. 17-3220,17-3220 |
| Parties | CHRISTOPHER SMITH, Petitioner-Appellant, v. WARDEN, TOLEDO CORRECTIONAL INSTITUTION, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0308n.06
JANE B. STRANCH, Circuit Judge. Christopher Smith was convicted of armed robbery in Ohio state court and sentenced to 18 years' imprisonment. He challenges this conviction in a habeas petition under 28 U.S.C. § 2254. The district court determined that two of his claims failed on the merits and his other five claims were procedurally defaulted. We agree that Smith's claims are procedurally defaulted—with one minor exception—but hold that the ineffective assistance of appellate counsel excuses the procedural default of his Brady claim. For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.
Because Smith's legal claims depend on the strength—or weakness—of the evidence against him, we discuss the evidence adduced at his bench trial and a post-trial hearing in detail.
A black man wearing sunglasses, a facemask, and a wig entered a wireless telephone store in Cincinnati at about 3:40 p.m. on October 17, 2007. He pointed a gun in the air and took the till, which contained $700 or $800. A store employee could not identify the robber when the police later showed him a photo array because the robber's face was obscured.
Thomas Moore was driving nearby when he noticed a man peering into the store window. This man put on a wig, pulled something up around his neck, pulled out a gun, and entered the store. Moore called 911. A few minutes later, Moore saw this man run out of the store carrying what looked like a laptop and climb into the front passenger seat of a blue Ford Expedition. Moore followed, getting a partial number for the temporary license plate and noting the name of the car dealer, which he relayed to 911. Before he lost sight of the Expedition, Moore saw the passenger, whose face was no longer obscured, from about 10 feet away. Moore did not see him for long—maybe the time that it took "for two or three cars to pass."
Based on the information provided by Moore, the Cincinnati police called the car dealership and learned that it had sold the Expedition to Jennifer Potts. Potts told the police that she had bought the car for Christopher Smith, the defendant, to drive.
The police then generated a photo array containing Smith's image. About three hours after the robbery, a police officer who already had Smith "in mind as a suspect" showed Moore this photo lineup. Moore identified Smith as the robber and passenger in the Expedition. Over six months later, in May 2008, Moore identified Charles Allen as the driver.
Shortly after responding to the call for this robbery, the police found the blue Expedition parked at a nearby apartment complex. A K-9 unit found a black t-shirt in the rear yard of a house in the vicinity. Officers also recovered a pair of sunglasses, a wig, and a nylon case from a trash can at the apartment complex.
Tracey Sundermier, a serologist for the Hamilton County Coroner's Crime Lab, conducted DNA testing on the t-shirt, sunglasses, and wig. She obtained multi-source DNA profiles by swabbing the inside collar area of the t-shirt and by "vigorously swabb[ing] the entire surface of the inside of the wig." She also swabbed the sunglasses but was unable to obtain a DNA profile. Smith was excluded from the DNA profile developed from both the t-shirt and the wig. Charles Allen could not be excluded from either profile. The portion of the population that could not be excluded from the DNA profile developed from the wig was 1 in 3.44 million.
The police learned that Smith was on parole and spoke to his parole officer. Smith was on parole for armed robbery and was subject to electronic location monitoring. For his ankle monitor to work, it had to be within a certain distance of a transmitter, which Smith was supposed to carry with him. Smith cut his ankle bracelet off a little under two hours after the robbery.
Smith told his parole officer that he had cut his ankle bracelet off because he was scared. He said that he had heard about the robbery from someone he had allowed to borrow his car and he had seen the police go to his apartment. He refused his parole officer's entreaties to turn himself in but asked her to check the GPS to verify his location at the time of the robbery and told her where his transmitter could be found. He also told her to "run the test" when he heard from her that the police had recovered the wig and other physical evidence. Smith's ankle monitor was not working from 2:35 until at least 4:20 p.m. on October 17, 2007, though, because of a "cuff leave violation," meaning that the transmitter was too far from the ankle bracelet for it to work. Thedefense provided evidence that this was a common problem with Smith's GPS tracker, occurring almost every day.
Smith texted Potts at 5:17 p.m. and then 5:18 p.m. on October 17, 2007, telling her to report the Expedition stolen. He later told the police that he had seen a news report about this robbery, showing the car, on the five o'clock news. This news report aired at approximately 5:18 p.m.
The police apprehended Smith during a traffic stop a little over a month later. He told them that he had lent his car to "Chuck Allen," that Allen had sent him a text telling him what had happened, and that he was being framed. He said he had been avoiding the police because "he had just got done doing five years and he wasn't going to go down for something that he didn't do." He offered to submit to a buccal swab, to release his phone records, and to take a polygraph. But, once obtained, Smith's phone records did not show a text telling him what had happened.
Smith's brother, Ricardo Smith, was a close friend of Charles Allen. Seeking exculpatory evidence for his brother, Ricardo purportedly recorded his conversations with Allen. Recordings of these conversations were admitted into evidence at trial. In one, Ricardo told Allen that a witness reported that the robber was carrying a laptop when he ran out of the phone store. Allen asked, "A laptop?" Ricardo replied, "Yeah, that's what the witness said." Allen laughed and responded, "I didn't have a motherfucking laptop."
Shevon Mitchell, Smith's ex-girlfriend, testified that she recognized Ricardo's and Allen's voices on these recordings. She also testified that Allen had told her after this robbery that he had done "something stupid." Allen did not give her any details of what he had done but said he had borrowed Smith's car and that Smith was not there. She was no longer dating Smith at the time of trial and said that she would not lie for him.
Brittney Hatcher, Smith's live-in girlfriend and the mother of his daughter, testified that she saw Allen driving Smith's blue truck on October 17, 2007. Smith regularly lent his car to other people. She was watching television with Smith when they saw a news report saying that the police had found his truck. He was confused by this news report. He then noticed that the police were outside the apartment and went to go look for "Chuck" because Allen had his car.
Charles Allen testified for the prosecution in exchange for a promise that he would not be prosecuted for this crime. His charges had not been dropped at the time of trial; instead, they were being "ignored," and could be pursued later.
On the date of this incident, Smith picked Allen up in his blue truck, saying that they were going to see some women. Smith pulled into an apartment complex, told Allen to be prepared to move the car if the police came, then made a phone call and walked off. Allen did not pay attention to where Smith went.
Five to ten minutes later, Allen heard a "boom" as Smith ran into the car, using it to stop himself. Smith got into the back seat and told Allen "drive, drive." Allen shifted into the driver's seat and drove to a nearby apartment complex, where he parked the Expedition. The two men then split up on foot.
Allen never saw Smith with a wig, though Allen testified that Smith had asked him about Allen's girlfriend's wigs. When asked on cross-examination whether his DNA could be on the wig found by the police, Allen insisted that the t-shirt was the only thing his DNA could be on. He had previously left a black t-shirt in Smith's car.
Allen also denied that it was his voice on the recordings made by Ricardo Smith. He admitted, however, that it was his voice on a recording of a phone call he made to his girlfriend from jail, saying 10 or 12 times that he was "salty Rick was wired every time we met up." He explained that "salty" means "mad" or "upset."
During the closing statements in this bench trial, the prosecution argued that the court should credit the statements of Moore and Allen and find Smith guilty of aggravated robbery as a principal, not an accessory. The defense responded that this was a case of police tunnel vision and that, although the initial evidence pointed to Smith, the physical evidence and Allen's recorded statements showed that Allen, not Smith, was the robber. During the defense's closing argument, the court repeatedly interrupted counsel to bring up evidence that it believed undercut the defense's version of events.
Immediately after the closing statements, the court rendered its verdict. The court stated that Moore's eyewitness testimony was "further corroborated by the fact Chuck Allen's DNA is found on some of the evidence." After noting that a person's DNA can get on an object by touching it, the court stated: "I don't have a problem with the fact that the defendant...
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