State v. Smith
| Decision Date | 18 March 2013 |
| Docket Number | Case No. 2012-CA-17 |
| Citation | 2013 Ohio 1226 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. MICHAEL P. SMITH Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
OPINION
For Plaintiff-Appellee
DANIEL PADDEN
Guernsey County Prosecuting Attorney
For Defendant-Appellant
STEPHEN GOLDMEIER
Assistant State Public Defender
{¶1} Appellant Michael P. Smith ("Smith") appeals from the May 24, 2012 judgment entry of the Guernsey County Court of Common Pleas convicting him of murder, attempted murder, felonious assault, having a weapon under a disability, and grand theft. Plaintiff-appellee is the State of Ohio.
{¶2} Kyle Carter's presence, along with his dog, in an apartment building at 903 Stewart Avenue, Cambridge, Ohio became a source of anxiety for Smith. In addition, Smith contended that Carter neglected to clean up after his dog, leaving waste in the front lawn. Smith first tried complaining to the leasing company, but Carter and his dog remained on the premises. Verbal altercations occurred between the two for some time.
{¶3} On March 5, 2011 Jessica Beckett, a resident of the apartment building observed Smith walk up the shared stairway that led to Becket's apartment and another apartment where Kyle Carter was currently staying. Becket testified Smith was banging on the door and yelling at them saying, "he wanted the squatters out of here and their damn dog out of here, and he was going to kill them, and he was going to beat their ass." Becket testified she was very scared of this event and eventually decided to purchase a weapon for protection.
{¶4} Carter and his girlfriend Katrina Adamik were alarmed. Carter called a friend, Trevon Bundy, and reported what had transpired between them and Smith in a voicemail message to Bundy's telephone.
{¶5} On March 8, 2011, Smith again confronted Carter to tell him that he and his dog were violating the terms of the lease and he had to go. As the verbal altercationescalated, Carter's friend from across the street, Cody Heskett, came to assist him. Smith was yelling at the two young men to come over to his porch so he could kick their ass. The shouting match grew louder, but Smith never left his porch. Heskett tore off his shirt and beat his chest, as if preparing for a fight with Smith. Carter responded to the threats and shouts with his own angry and violent words. Smith claimed that the two young men said that they had a gun back at Mr. Heskett's house, which frightened Smith. Heskett later told his brother that his intention was to go back to the house and get his shotgun so he could shoot Smith.
{¶6} Smith ran inside, grabbed his Springfield .45 Caliber semiautomatic handgun, and fired a shot from his porch toward the street at Cody Heskett. That shot missed Heskett. Smith fired a second time striking and eventually killing Kyle Carter.
{¶7} Moments before the shooting, Ms. Beckett testified that she heard Smith yell, "I'm going to get my .45 and blow you up," which she took to mean he was going to get a gun out of his apartment. At this point, Beckett called the police. However, a concerned citizen, Linda Phillips had already called the police to report that she had heard shouts threatening violence and it looked like an old man was antagonizing two boys who were out in the street.
{¶8} On or about 4:09 p.m. on that day, Lieutenant Kevin Love and Patrolman David Long of the Cambridge Police Department were on routine patrol. They received a call from dispatch, indicating some type of disturbance in the area of the apartment building. Lieutenant Love indicated it took them about a minute to travel from their location, to the dispatched location. As the officers were pulling to the dispatched intersection, Lieutenant Love testified that he heard a gunshot. Lieutenant Love thensaw a man in a white T-shirt hunch over, and put his hands on his stomach as he crossed 9th Street from the east side, to the west side of the street staggering rather slumped over. The man made it across the street, crossing between two parked cars, fell to his knees, still clenching himself, he bent over and put his forehead in the grass and then immediately fell over on his side. The Lieutenant testified there was a lot of yelling and confusion. Lieutenant Love further testified at first he could not identify the man, but later identified him as Kyle Carter.
{¶9} From their location, the Lieutenant and Patrolman deciphered through the yelling, that the man who shot Carter was in the big white house across the street, 903 Stewart, which is an apartment building on the northeast corner of that intersection.
{¶10} Carter Baldwin and Terrence Holdren each testified that, as they pulled up to the stop sign at Stewart Avenue and 9th Street, they saw Smith take aim at the two young boys who were standing nearby. Baldwin and Holdren indicated that they saw Smith, with his arms together, holding a gun on the banister, aiming it at one of the kids. Baldwin testified that he believed the man with the gun was aiming at one of the kids.
{¶11} After the shooting, Smith found a car with the keys still in it and drove off. He thought better of fleeing town, so he instead went to Brenda Berger, a family friend, to seek help. Smith told Mrs. Berger that he had shot at the two young men. He told Mrs. Berger that he was scared for his life, and he reacted the only way he could think of to try to scare them. He said that he had never meant to hurt the young men, just to scare them and protect himself.
{¶12} Knowing that Smith did not actually own a car, Mrs. Berger told Smith that she would not let him stay in the house and that he could not have the stolen car there.Smith left briefly to return the car to a safe location. While he was gone, Mrs. Berger called the police and informed them that Smith would be on her porch for them to come get him. After both Smith and law enforcement arrived at the house, Smith complied with the officers' orders and calmly turned himself in to the police. Soon after being taken to the county jail, Smith learned that he had caused Carter's death. When he learned this, Smith broke down and relayed to the police the events of that day.
{¶13} Smith was charged with aggravated murder of Carter, with instructions in the alternative for murder and voluntary manslaughter. He was also charged with attempted aggravated murder of Mr. Heskett, with instructions in the alternative for attempted murder and attempted voluntary manslaughter. Mr. Smith also faced charges for felonious assault against Heskett, grand theft of the car, and having a weapon under a disability.
{¶14} After a six day jury trial Smith was convicted of the lesser offenses of murder and attempted murder, grand theft, and having a weapon under a disability. His conviction for felonious assault merged with his conviction for attempted murder. He was sentenced for the murder to 15 years to life, plus a repeat violent offender specification of 10 years and a firearm specification of 3 years. He was sentenced for the attempted murder to 10 years plus three for the repeat violent offender specification. His sentence for three years for the theft and one year for the weapon under disability charge ran concurrently to his sentences for murder and attempted murder. His total sentence was 48 years to life.
{¶15} Smith raises five assignments of error,
{¶16} "I. THE TRIAL COURT'S ADMISSION OF A VOICEMAIL RECORDED BY MR. CARTER VIOLATED MR. SMITH'S CONSTITUTIONAL RIGHT TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM. SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION; SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION; CRAWFORD V. WASHINGTON, 541 U.S. 36, 124 S.CT. 1354, 158 L.ED.2D 177 2004). (STATE'S EXHIBIT CC; T.T. AT 774).
{¶17} "II. THE TRIAL COURT'S ADMISSION OF A VOICEMAIL RECORDED BY MR. CARTER VIOLATED THE PROHIBITION ON HEARSAY EVIDENCE, AS THE RECORDING WENT BEYOND MERELY ESTABLISHING MR. CARTER'S FEAR OF MR. SMITH, IN VIOLATION OF MR. SMITH'S RIGHT TO DUE PROCESS. FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. (STATE'S EXHIBIT CC; T.T. AT 774).
{¶18} "III. THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE STATE TO INTRODUCE UNRELIABLE AND UNSCIENTIFIC EXPERT TESTIMONY, VIOLATING MR. SMITH'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION; EVID.R. 702; DAUBERT V. MERRILL DOW PHARMACEUTICALS, INC., 509 U.S. 579, 113 S. CT. 2786, 125 L. ED. 2D 469 (1993). (JULY 25, 2011 ENTRY; JULY T. AT 102).
{¶19} "IV. MR. SMITH'S CONVICTIONS FOR MURDER AND ATTEMPTED MURDER ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE, IN VIOLATION OF HIS RIGHT TO DUE PROCESS. FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.CONSTITUTION; ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION. (MAY 10, 2012 JUDGMENT OF CONVICTION).
{¶20}
{¶21} In his first assignment of error, Smith maintains that the admission of a voicemail message sent by the decedent days before his death violated his right to...
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