State v. Raymond Smith
| Decision Date | 25 March 1998 |
| Docket Number | 96CA006331,98-LW-1785 |
| Parties | STATE OF OHIO, Appellee v. RAYMOND SMITH, Appellant C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF LORAIN, OHIO CASE NO. 95CR046838
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Defendant, Raymond A. Smith, appeals from his conviction for Aggravated Murder and his death sentence. We affirm.
On or about January 19, 1994, Defendant set out and completed an intricate plan to murder Ronald Lally, a government informant, who was scheduled to testify against the Defendant and his son ("Danny") in their upcoming January 1994 drug trafficking trials.
In June of 1993, Ronald Lally, a crack addict, contacted the Elyria Police Department and volunteered his services to provide information to the police in order to bring down his crack cocaine suppliers, Defendant and Danny. Thereafter Ronald Lally was wired when he purchased drugs from Defendant and Danny. On August 8, 1993, Defendant was arrested on drug trafficking charges. Danny was arrested for drug trafficking on August 12, 1993. Ronald Lally was scheduled to testify against Defendant and Danny in their January 1994 drug trafficking trials. Around 10 a.m. on January 19, 1994 Detective Michael Beaman was called to a driveway in a Cleveland cemetery where he discovered Ronald Lally's body.
Michael Smith, another son of the Defendant, provided a detailed account of the events which occurred on January 18 and 19, 1994. Michael described his father speaking to Ronald Lally while in Joann Fick's Chrysler LeBaron convertible on route from Lorain County to the cemetery in Cleveland. Michael listened to the Defendant discussing the tape that Ronald Lally made with Defendant on it. Michael also described how Defendant pointed a gun at Ronald Lally's head and then shot him in the head in the driveway of the cemetery. Michael also heard Ronald Lally yell that he was shot in the head. Michael stated that Defendant and Stan Jalowiec attempted to put Ronald Lally's body in the trunk of Joann Fick's LeBaron, but could not get it in. Michael also felt the car run over Ronald Lally several times.
Ronald Lally's death was determined to be caused by a combination of a gunshot to the head, brain damage from being repeatedly beat on the head, and exposure to the cold. The examiner found that Ronald Lally was cut in the neck with a knife and was run over by a vehicle. Investigators discovered that blood containing the DNA of Ronald Lally was found in the trunk of Joann Fick's Chrysler LeBaron convertible. Joann Fick testified that when Raymond Smith and Stan Jalowiec returned her vehicle to her the next morning, she noticed blood in the interior of the car. She also concluded that the exterior had just been washed because it was a sheet of ice.
Defendant was indicted on March 8, 1995, by a Lorain County Grand Jury for Aggravated Murder, R.C. 2903.01(A), with a firearm specification and a death penalty specification. The jury trial commenced on November 28, 1995. On December 5, 1995, Defendant was found guilty of Aggravated Murder, R.C. 2903.01(A), with a firearm specification, R.C. 2941.141, and with an aggravating circumstance specification, R.C. 2941.14. In addition, there was a death penalty specification accompanying the count: that the offense was intended to prevent a witness from testifying during a criminal proceeding (R.C. 2929.04(A)(8)). On January 5, 1996, the trial court sentenced Defendant to death in accordance with the jury's sentencing verdict.
Defendant timely appeals the judgment of the trial court and raises fourteen assignments of error. We have rearranged slightly the assignments to facilitate review.
Because the first two assignments of error deal with whether the trial court properly allowed for the deposition of Michael to be taken and properly denied Defendant's motion in limine to prevent the deposition of Michael from being admitted into evidence, we address Defendant's first and second assignments of error together.
On June 1, 1995, the prosecution filed a motion to take the deposition of Michael prior to Defendant's trial. The trial court held a hearing on the motion on June 12, 1995. Despite Defendant's objections, the trial court granted the prosecution's motion to take Michael's deposition. The prosecution took Michael's deposition on June 16, 1995. Defendant and his attorney were present at the deposition, and Defendant's attorney cross-examined Michael during the deposition.
In terms of the first assignment of error, Defendant avers that the trial court erred by finding that it was probable that Michael would not be able to attend or would be prevented from attending Defendant's trial. He further contends that the evidence presented at the hearing substantiated that Michael was in a safe place, that the incarcerated defendants (including Defendant) could not pose a physical threat to Michael, and that Michael was willing and able to testify at the trial in this matter. In his second assignment of error, Defendant argues that the prosecution could not prove that it made a reasonable and good faith effort to secure Michael's presence at trial. Defendant further asserts that his Sixth Amendment right to confront witnesses was violated when the trial court permitted Michael's deposition transcript to be admitted into evidence at Defendant's trial.
Trial courts maintain discretion to allow for depositions of witnesses to be taken and used in lieu of a witness testifying at trial pursuant to Crim.R. 15. State v. Koontz (1979), 65 Ohio App.2d 264, 269-70. See State v. Hill (1967), 12 Ohio St.2d 88, paragraph one of the syllabus. Crim.R. 15 states:
The Twelfth District Court of Appeals found:
Crim.R. 15(A), which controls the use of depositions in criminal matters, states that the court shall order that the deposition of a prospective witness be taken if (1) it appears probable that the witness will be unable to attend a trial or hearing, and (2) it is necessary to take the witness's deposition "*** in order to prevent a failure of justice ***."
State v. Pastor (Dec. 31, 1984), Butler App. No. CA84-05-056, unreported, 1984 Ohio App. LEXIS 12156, *9. Reviewing courts assess a trial court's deposition determination under an abuse of discretion standard. Id. at *10. In a recent case, the Third District Court of Appeals addressed a Defendant who asserted that his right to confrontation was violated because the prosecution failed to make a showing of unavailability of two witnesses. The court noted that "[t]he purpose of the Sixth Amendment right of an accused to confront all witnesses against him is to secure for the defendant the opportunity to cross-examine such witnesses." State v. Bailey (June 3, 1997), Hancock App. No. 5- 97-01, unreported, 1997 Ohio App. LEXIS 2791, *2-3. See Ohio v. Roberts (1980), 448 U.S. 56, 63, 65 L.Ed.2d 597, 606; State v. Keairns (1984), 9 Ohio St.3d 228, 229. Furthermore, courts have concluded that the Confrontation Clause requires a showing that a witness is unavailable, that a defendant and his attorney are present at the deposition, and that a defendant's attorney cross- examined the witness at the deposition. State v. Bailey, supra, at *2-8. See Keairns, supra, at 230. The Sixth District Court of Appeals found that "[t]he trial court did not abuse its discretion by permitting a deposition" where the witness was an eyewitness to a crime, where the witness' testimony was material, where the witness' attendance at trial was uncertain, and where the defense attorney cross-examined the witness at the deposition. State v. Cousino (Oct. 22, 1976), Wood App. No. WD-76-9, unreported, 1976 Ohio App. LEXIS 6885, *3-4. See State v. Hill, 12 Ohio St.2d at paragraph one of the syllabus.
In the case at bar, the prosecution requested that Michael be deposed because Michael asserted that Defendant, his father threatened to kill him. Ronald Lally, the murder victim, was a former witness who was scheduled to testify against the Defendant and Danny in their drug trafficking trials. Ronald Lally was killed just a few weeks before he was scheduled to testify. This prosecution was for a murder of a primary witness against Defendant in a prior, less serious case. It was not error to allow...
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