State v. Smith

• Decision Date: 26 July 2000
• Docket Number: No. 98-552.,98-552.
• Citation: 731 NE 2d 645,2000 Ohio 166
• Parties: THE STATE OF OHIO, APPELLEE, v. SMITH, N.K.A. MAHDI, APPELLANT.
• Court: Ohio Supreme Court

731 NE 2d 645

2000 Ohio 166

THE STATE OF OHIO, APPELLEE, v. SMITH, N.K.A. MAHDI, APPELLANT.

No. 98-552.

Supreme Court of Ohio.

Submitted March 7, 2000.

Decided July 26, 2000.

[2000 Ohio 326]

Julia R. Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson, Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, J. Joseph Bodine, Jr., Angela Greene and Richard J. Vickers, Assistant State Public Defenders, for appellant.

MOYER, C.J.

Appellant Smith raises ten propositions of law. We have reviewed each one and have determined that none justifies reversal of Smith's conviction for aggravated murder and the other crimes he committed. Pursuant to R.C. 2929.05(A), we have also independently reviewed the record, weighed the aggravating circumstance against the mitigating factors, and reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we affirm Smith's convictions and death sentence.

Inquiry on Racial Bias/Effective Assistance

In his first proposition of law, Smith asserts that counsel were ineffective for failing to question the venire concerning religious or racial bias, since the crimes in issue were interracial in nature. Smith contends that counsel's ineffectiveness throughout trial, including the presentation of "racially charged evidence," can be traced to counsel's failure to examine the jurors on racial bias prior to trial.

[2000 Ohio 327]

Since Smith failed to raise this issue before the court of appeals, we consider this issue to be waived. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus.

Smith argues, albeit in a footnote, that if his argument is considered waived, his appellate counsel gave him ineffective assistance.¹ However, we find that Smith has failed to demonstrate ineffective assistance of trial counsel.

Reversal of a conviction for ineffective assistance requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

Smith asserts many conclusions, one of which is that the trial was racially charged, since the murder was committed by a black man and the victim was "a man of Arabic descent who operated a grocery store in the inner city." Characteristic of Smith's arguments under this proposition is his conclusion that "because the conflict between blacks and the immigrant newcomers envelops the overall debate on black/white relations, racism may have been a factor in the jury's decision to convict Smith of aggravated murder." (Footnote omitted.) Other examples of Smith's argument that the entire trial was fraught with racially charged evidence include trial counsel's strategy during the mitigation phase to highlight the black "gangsta" movie "Menace II Society," relying on the testimony of an Islamic jail counselor, citing the movie "Malcolm X," and relating defendant's story of life in the inner city.

Smith relies on Turner v. Murray (1986), 476 U.S. 28, 36-37, 106 S.Ct. 1683, 1688-1689, 90 L.Ed.2d 27, 37, for the proposition that a capital defendant accused of an interracial crime is entitled to have the venire questioned so as to reveal any possible racial bias. Smith contends that, in the racially charged atmosphere of this case, competent counsel would have taken advantage of that entitlement.

In our view, Smith's arguments are purely speculative and unconvincing. We have held that "the conduct of voir dire by defense counsel does not have to take a particular form, nor do specific questions have to be asked." State v. Evans (1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042, 1056. Moreover, as we noted in State v. Watson (1991), 61 Ohio St.3d 1, 13, 572 N.E.2d 97, 108, under Turner v. Murray, the actual decision to voir dire on racial prejudice is a choice best left to a capital defendant's counsel. Id., 476 U.S. at 37, 106 S.Ct. at 1688, 90 L.Ed.2d at 37, and fn. 10.

[2000 Ohio 328]

Here, the mitigation transcript indicates that counsel elicited testimony that Smith saw the movie "Menace II Society" earlier on the day of the shooting. In the beginning of the movie, a black man shoots and kills a nonblack storeowner. However, this fact was evidently elicited to support the expert testimony that Smith suffered a mental defect that caused him to become psychotic for a temporary period of time. In the defense psychologist's professional opinion, it was no coincidence that, after seeing what occurred in the movie, Smith committed a similar crime later that day. Clearly, counsel were attempting to portray Smith as someone who was unstable and prone to psychotic displays such as the murder of Darwish, which reprised a scene in the film Smith had seen earlier that day. Far from creating a racially charged atmosphere, it appears that trial counsel attempted to explain Smith's murder of Darwish in a way that could lead jurors to view Smith as less blameworthy for his actions.

Counsel's chronicling of Smith's life story in the inner city does not indicate ineffective assistance. It was likely designed to portray Smith as a victim of his background and upbringing, and thus not deserving of death. The testimony of the Islamic jail counselor attempted to show Smith as a person who has now turned to religion. The references to Malcolm X were raised by defense counsel during examination of the Islamic counselor. As brought out in the trial transcript, such questions appear to have been designed to elicit testimony that the type of Islamic belief Smith was turning to was not the "nationalistic brand" of Islamic belief once espoused by Malcolm X. Moreover, Smith's troubled inner city background and his religious conversion are unquestionably valid mitigating factors, and it was not ineffective assistance to bring them to the jury's attention.

Counsel could have properly determined that the examination of jurors' racial views during voir dire would be unwise, since the subject of racial prejudice is sensitive to most people, and raising it during voir dire could cause some jurors to be less candid if confronted with direct questions attempting to discern any hint of racial prejudice. In addition, our reading of the record leads us to conclude, contrary to Smith's assertions, that racial issues were not "woven into the fabric of trial."

Yet, even if we viewed counsel's trial strategy as questionable, such a strategy should not compel us to find ineffective assistance of counsel. In these situations, we normally defer to counsel's judgment. State v. Clayton (1980), 62 Ohio St.2d 45, 49, 16 O.O.3d 35, 37, 402 N.E.2d 1189, 1192. Since we find no legitimate basis for Smith's assertions that counsel were ineffective for not examining the venire on racial or religious bias, this proposition is not well taken.

Competency Evaluation

In Proposition of Law No. 5, Smith contends that the trial court erred in failing to order a competency evaluation sua sponte. Smith claims that numerous

[2000 Ohio 329]

incidents, when considered together, should have alerted the trial court that defendant was mentally incompetent. Among the incidents cited are Smith's refusal to heed counsel's advice to accept a plea bargain prior to trial; his refusal to waive a jury trial in favor of a three-judge panel; his insistence on appearing at trial in jail clothes and a kuffa (prayer cap); his waiver of a potentially valid Batson claim; his declaration in chambers that he did not want any family members testifying at his mitigation hearing; his decision not to give an unsworn statement during the mitigation phase and his refusal to speak at his sentencing hearing; and his refusal to continue cooperating with the defense expert psychologist.

It has long been recognized that "a person who lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri (1975), 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103, 113. "Fundamental principles of due process require that a criminal defendant who is legally incompetent shall not be subjected to trial." State v. Berry (1995), 72 Ohio St.3d 354, 359, 650 N.E.2d 433, 438, citing Pate v. Robinson (1966), 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815.

In Ohio, R.C. 2945.37(B) requires a competency hearing if a request is made before trial. But "if the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court's own motion." Id. Thus, "the decision as to whether to hold a competency hearing once trial has commenced is in the court's discretion." State v. Rahman (1986), 23 Ohio St.3d 146, 156, 23 OBR 315, 325, 492 N.E.2d 401, 410. The right to a hearing "rises to the level of a constitutional guarantee where the record contains `sufficient indicia of incompetence,' such that an inquiry * * * is necessary to ensure the defendant's right to a fair trial." State v. Berry, 72 Ohio St.3d at 359, 650 N.E.2d at 439, citing Drope and Pate, supra.

However, the record in this case does not reflect "sufficient indicia of incompetence" to have required the trial court to conduct a competency hearing. During the mitigation hearing, defense psychologist, Robert Kahl, testified that Smith suffers a mental illness, but he was not certain how to categorize it. Yet, Kahl also opined that Smith was competent to stand trial. "The term `mental illness' does not necessarily equate with the definition of legal incompetency." Berry, supra, 72 Ohio St.3d 354, 650 N.E.2d 433, syllabus. "A defendant may be emotionally disturbed or even psychotic and still be capable of...