State v. Smith
| Docket Number | 23AP-146 |
| Decision Date | 28 December 2023 |
| Citation | 2023 Ohio 4800 |
| Parties | State of Ohio, Plaintiff-Appellee, v. James E. Smith, Jr., Defendant-Appellant. |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas No. 15CR-4092
On brief:
[Janet A. Grubb, First Assistant Prosecuting Attorney], and Taylor M. Mick, for appellee.
On brief:
Sterling E. Gill, II, for appellant.
DECISION
{¶ 1} Defendant-appellant, James E. Smith, Jr., appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for leave to file a delayed motion for new trial based on newly discovered evidence.
{¶ 2} On August 21, 2015, appellant was indicted on two counts of possession of cocaine, in violation of R.C 2925.11, and two counts of trafficking in cocaine, in violation of R.C. 2925.03. Following a jury trial, appellant was convicted on all counts.
{¶ 3} The following recitation of the evidence presented at trial is drawn from this court's decision on appellant's direct appeal, State v. Smith, 10th Dist. No. 16AP-772, 2017-Ohio-7740. On August 11, 2015, law enforcement officials received notification regarding "a FedEx package that possibly contained a controlled substance." Id. at ¶ 3. The suspect package "was addressed to 'Jesica Aviles' [on] Chittenden Avenue in Columbus from a sender located on Veronica Drive in Coachella, California; the FedEx tracking number indicated that the package was shipped from a Kinko's in LaQuinta, California." Id. Officers found inside the FedEx package "six kilos of cocaine encased within a karaoke machine." Id. The officers subsequently "placed one package of cocaine, several packages of fake cocaine, and a GPS transmitter and another electronic device back into the karaoke machine, resealed the karaoke machine in the FedEx box, and obtained authorization to conduct a controlled delivery of the package to the Chittenden Avenue residence." Id.
{¶ 4} The following day, "a special agent for a drug traffic force, posing as a FedEx delivery person and equipped with electronic recording devices, approached the Chittenden Avenue residence," and "[s]urveillance and tactical teams positioned nearby the home monitored the delivery." Id. at ¶ 4. At the time the special agent arrived, "[t]hree men unknown to the special agent were on the front porch to the home: appellant, George Spencer, and Mark Chafin." Id. The special agent stated that "he had a package for 'Jesica,' and appellant responded, 'Yeah, yeah.'" Id. Appellant then "told the agent his name was Burt Johnson and [he] was a resident of the house, signed for the package, and indicated that he did not think the box needed to be signed for." Id. When the special agent "told appellant that the package could be stolen if left on the front porch, * * * appellant moved the package from the porch to inside the doorway of the house." Id. The special agent then left the residence.
{¶ 5} Several minutes following the controlled delivery, "Chafin removed the FedEx box from the home, placed it into the backseat of a Mercury Sable, and returned to the porch." Id. at ¶ 5. The vehicle was "titled to TSF Investment Company, LLC, a company for which appellant is the CEO." Id. A short time later, "appellant and Chafin got into the Sable" and appellant "drove the Sable down Chittenden Avenue with Chafin in the front passenger seat." Id.
{¶ 6} At the end of the street, uniformed detectives stopped the vehicle and officers "found the unopened FedEx package sitting on the back seat of the Sable behind the passenger seat." Id. at ¶ 6. The officers "seized $1,014 in cash and three cell phones from appellant's person." Id. During the inventory of the vehicle, "officers recovered from the trunk a second, virtually identical karaoke machine containing an additional six kilos of cocaine." Id.
{¶ 7} Eight days later, upon obtaining a warrant, "officers searched a business owned by appellant named 'The Speed Factory' located [on] Groves Road, Unit 35, in Columbus." Id. at ¶ 7. Among the items seized by officers were "a cell phone from the garage area and a cell phone from a bag hanging on a coat rack." Id.
{¶ 8} At trial, "[a]n expert in mobile device forensics testified to analyzing the five cell phones recovered" from appellant's business or on his person. Id. at ¶ 8. One of the cell phones "found on appellant contained records of calls to the same southern California number at least 11 times from August 4 to August 12, 2015," and "[t]ext messages recovered from the phones found on appellant contained tracking numbers that matched the FedEx records of other packages sent between Columbus and California." Id. Further, "[a]t least one of those phones had accessed FedEx.com to track three packages between Columbus and California," and "[s]creenshots of texts from the Nokia phone taken from the coat rack of appellant's business included California addresses related to locations of five other FedEx packages shipped between Columbus and California coupled with texts relaying the Chittenden Avenue address." Id.
{¶ 9} Testimony by the officers involved in the case indicated "narcotics smugglers seldom ship drugs to their own residence but rather typically ship drugs to another residence with a fictitious name listed; likewise, the sender information listed on such a package is fictitious in a high percentage of cases." Id. at ¶ 9.
{¶ 10} Prior to trial, Id. at ¶ 10. Appellant attempted to call Chafin at trial "to testify as a defense witness and enter Chafin's affidavit into evidence." Id. Outside the presence of the jury, "counsel for Chafin stated that he had advised Chafin to assert his right against self-incrimination under the Fifth Amendment to the U.S. Constitution." Id. The trial court agreed with Chafin's counsel "that taking the stand posed a genuine risk to Chafin's Fifth Amendment rights, noting that by carrying the box to the car Chafin arguably held equal possession of the narcotics." Id. Counsel for appellant "recognized that there could be a Fifth Amendment issue but objected to not being able to ask him multiple questions and mentioned that he would like to question Chafin about whether officers threatened him to not testify, and whether that had an impact on his decision to invoke the Fifth Amendment." Id. Defense counsel failed to proffer for the record questions that he would have asked Chafin.
{¶ 11} After the jury returned, "defense counsel called Chafin to the stand" and, "[a]fter being sworn in, Chafin provided identifying information." Id. at ¶ 11. Appellant's counsel "handed Chafin his affidavit and asked whether he recognized it." Id. Acting on "his own counsel's advice, Chafin invoked his right against self-incrimination under the Fifth Amendment" and "further indicated that at his counsel's instruction, he would 'plead the fifth' in response to any question." Id. The trial court, noting "defense counsel's objection," then "instructed the jury not to draw any inference either for or against appellant on the basis of Chafin 's failure to testify." Id. On the state's objection, "the trial court did not admit Chafin 's affidavit into evidence on the basis that appellant was an unavailable witness, and the affidavit did not fall within any exception in Evid.R. 804(B)." Id.
{¶ 12} On October 13, 2016, following deliberations, the jury "returned verdicts finding appellant guilty of all counts." Id. at ¶ 12. Appellant filed a direct appeal from his convictions, raising three assignments of error in which he asserted the trial court erred in: (1) permitting Chafin to invoke his right against self-incrimination and in not ordering him to testify, (2) excluding the affidavit of Chafin, and (3) imposing a fine. In Smith, this court overruled all of appellant's assignments of error and affirmed the judgment.
{¶ 13} On July 23, 2020, appellant filed a pro se motion for leave to file a delayed motion for new trial. In the accompanying memorandum in support, appellant asserted that "[r]egardless of the information presented at trial, Mark Chafin was the person responsible for the transactional processes and possession of the drugs that he placed into [appellant's] car." (July 23, 2020 Mot. for Leave at 6.) According to appellant, Chafin, who was now deceased, did not testify because "detectives had harassed his 73-year-old mother, and he did not want to immediately go to jail following his testimony admitting sole responsibility." (July 23, 2020 Mot. for Leave at 6-7.) Appellant asserted that affidavits attached to his motion constituted newly discovered evidence.
{¶ 14} Attached to the motion were affidavits from Chafin (exhibit A), appellant (exhibit B), David Coates (exhibit C), Shawn Pryor (exhibit D), and Jeffrey Malloy (exhibit E). In Chafin's affidavit, dated September 28 2018, he asserted that "[d]uring the summer of 2016, I was waiting for auto parts shipment that also contained drugs to arrive that I ordered." (Chafin Aff. at ¶ 1.) According to Chafin, appellant "had no knowledge of what the boxes contained." (Chafin Aff. at ¶ 1.) Chafin stated that after appellant was charged "for the drugs I placed in his trunk, I was subpoenaed to go to court to testify by [appellant's] attorney." (Chafin Aff. at ¶ 4.) Chafin further averred that, after he arrived at the courthouse, an assistant prosecutor "told me that if I went in the court and testified in [appellant's] behalf, I would be going to prison that day." (Chafin Aff. at ¶ 4....
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