State v. Smith

• Decision Date: 05 January 2000
• Docket Number: No. 98-912.,98-912.
• Citation: 721 NE 2d 93,87 Ohio St.3d 424
• Parties: THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
• Court: Ohio Supreme Court

87 Ohio St.3d 424

721 NE 2d 93

THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.

No. 98-912.

Supreme Court of Ohio.

Submitted October 12, 1999.

Decided January 5, 2000.

Gregory White, Lorain County Prosecuting Attorney, and Jonathan E. Rosenbaum, Assistant Prosecuting Attorney, for appellee.

Irving B. Sugerman and Nicholas Swyrydenko, for appellant.

ALICE ROBIE RESNICK, J.

Appellant, Raymond Smith, has raised eleven propositions of law. We have reviewed each and have determined that none justifies reversal of appellant's conviction for aggravated murder. Pursuant to R.C. 2929.05(A), we have also independently weighed the aggravating circumstance against the evidence presented in mitigation, and reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we affirm appellant's conviction and death sentence.

VOIR-DIRE/PRETRIAL ISSUES

Admission of Deposition

In his second proposition of law, appellant argues that his right to confront witnesses against him was violated when the court permitted, and then admitted, the deposition of Michael Smith without a showing that Crim.R. 15(F) was satisfied.

Michael Smith testified that he witnessed the Lally murder. Prior to voir dire, defense counsel raised the issue of whether the defense's motion to suppress Michael's deposition should have been granted, and a colloquy took place between the parties and the trial judge. The judge indicated that when he permitted the taking of the deposition on June 16, 1995, it was done with the understanding that Michael was going to testify at trial and that "it had to be a damn good reason why he wouldn't." The court at that time declined to disturb its denial of the defense motion to suppress.

However, during the voir-dire process, the court conducted a hearing regarding the admissibility of Michael Smith's deposition. Cleveland Police Detective Michael Beaman testified that he had been trying to locate Michael Smith in the Cleveland area for several months without success. Although Michael Smith was leasing an apartment in Cleveland that was current on rental payments, Beaman could not find him even with the assistance of the landlord, neighbors, and the county housing authority police. Beaman was also unsuccessful in locating Michael Smith through phone calls of numbers that Michael Smith had phoned during the time he was staying at the prosecution-provided motel room at the time just prior to his deposition.

Leiby testified that Michael Smith contacted him on June 5, 1995, and told him that he received what "we felt was a death threat." Leiby further stated that at the close of Michael's deposition, appellant threatened Michael by saying, "I raised the boy and now I have got to kill him." Subsequent to giving the deposition, Michael failed to report to his probation officer and a warrant was issued for his arrest.

In August 1995, Michael Smith was located and was held in the Cuyahoga County Jail for two days with the intent of transferring him to the Lorain County jail facility. However, Cuyahoga County authorities had no warrant on Michael, so the jail refused to hold him. Leiby stated that they were also concerned about Michael's safety at the Lorain County Jail, since both appellant and Jalowiec were being held there. Therefore, they decided at that time that Michael would be released early. Yet, four or five weeks later, Michael again failed to contact his probation officer and another warrant was issued for his arrest. Numerous attempts by Leiby to locate Michael were unsuccessful, even though Michael indicated at his deposition that he would be available to testify at trial. Leiby further stated that they took the deposition, since the prosecution was concerned for Michael's health and well-being. Among other things, Michael had attempted suicide on April 2, 1995. At the close of the hearing, the trial court ruled that the deposition would be allowed unless Michael was found.

Before closing argument at the trial phase, the prosecutor informed the court that Michael Smith had telephoned Detective Leiby from out of state two days earlier and indicated his willingness to testify. However, Michael was afraid that there were probation warrants out for his arrest. Leiby informed Assistant Prosecutor Rosenbaum of the phone call, and Rosenbaum told Leiby to tell Michael that he would pay for Michael's way to come back from wherever he was to testify. However, Rosenbaum could not make any promises regarding his probation. Michael called Leiby back that same night, and Leiby informed him of the situation. After that conversation, the state did not hear from Michael again. Subsequently, the deposition was submitted to the jury as an exhibit during its deliberations.

Crim.R. 15(F) provides: "[A] part or all of a deposition * * * may be used if it appears: * * * that the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition * * *."

Here, the testimony indicated that Michael Smith was out of the state and that reasonable efforts by the state to make him available to testify at trial were unsuccessful. The state's efforts to procure Michael's live testimony appear to have been reasonable, adequate, and made in good faith. The record indicates that the state continued to seek Michael's live testimony at trial up to the time when the case was submitted to the jury. There is no evidence that the state was responsible for or procured Michael's absence from Ohio. Rather, the record shows that Michael made himself unavailable because he felt that his life was in danger. Thus, the trial court did not abuse its discretion in admitting the deposition into evidence in light of Michael's unavailability to testify under Crim.R. 15(F). See, e.g., State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 361, 473 N.E.2d 264, 313; State v. Koontz (1979), 65 Ohio App.2d 264, 269-270, 19 O.O.3d 246, 249-250, 417 N.E.2d 1272, 1276.

Moreover, appellant's right to confront his accuser was not violated by the introduction of the deposition. Contrary to defense arguments, appellant was able to confront his accuser, Michael Smith, at the deposition. Appellant's defense counsel at the time cross-examined Michael, as did counsel for both co-defendants. Therefore, we overrule appellant's second proposition.

Voir-Dire Errors

In his third proposition of law, appellant contends that the court erred in granting the state's motions to excuse prospective jurors Ellingsworth and Gosselin for cause. Appellant further asserts that the trial court erred in giving disparate treatment to prospective jurors by favoring those with "pro-death penalty" views.

Appellant has waived these arguments by failing to raise them before the court of appeals. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus; State v. Hawkins (1993), 66 Ohio St.3d 339, 348, 612 N.E.2d 1227, 1234. In addition, appellant failed to object to the excusal for cause of prospective juror Ellingsworth. The only voir-dire issues appellant raised in the court of appeals concerned two Batson claims that he has not raised before this court.

Moreover, appellant's arguments under this proposition are without merit. While Ellingsworth equivocated as to whether she could impose a death sentence, she indicated several times that her views on the death penalty were so strong that they would interfere with her ability to consider imposing the death penalty. See, e.g., State v. Beuke (1988), 38 Ohio St.3d 29, 38, 526 N.E.2d 274, 284-285. Likewise, prospective juror Gosselin equivocated during voir-dire examination as to whether she could impose the death penalty. She admitted several times that her views would substantially impair her ability to sign a death verdict, but stated at other times that she could vote for a death sentence. Under such circumstances, even had appellant preserved his objections, this court would defer to the trial judge who saw and heard the jurors. Id.; State v. White (1999), 85 Ohio St.3d 433, 439, 709 N.E.2d 140, 149. Last, appellant's allegation that the trial judge gave favorable treatment to "pro-death penalty" jurors is not borne out by the voir-dire transcript. The trial judge in fact excused a fair number of prospective jurors who expressed an inability to consider imposing a life sentence. Appellant's third proposition is overruled.

TRIAL ISSUES

Out-of-Court Statements

In his first proposition of law, appellant complains that the trial court permitted, over defense objections, several out-of-court statements made by co-defendant Danny Smith. Appellant contends that the statements were irrelevant hearsay. He further submits that none of the statements by Danny qualified as exceptions to the hearsay rules, nor were they properly admitted as statements in furtherance of a conspiracy under Evid.R. 801(D)(2)(e).

Appellant first complains of statements made by Danny to Elyria police officer John Homoki, who responded to a disturbance call on September 15, 1993, at a Mr. Hero's restaurant. The disturbance involving Danny, Jalowiec, and Lally occurred approximately four months before the murder, and around one month after both appellant and Danny were arrested for aggravated trafficking as a result of Lally's controlled buy of crack from them. Homoki testified that Danny pointed to Lally and declared, "[t]hat punk-ass bitch is going to get his." When Homoki asked Danny if he was threatening Lally, Danny responded that "[t]here is no reason to threaten the mother fucker."

These statements readily appear to be relevant under Evid.R. 402, since the state's theory of the case was that appellant and co-defendants Danny Smith and Jalowiec conspired to kill Lally in retaliation for his role as a police informant making a controlled drug buy from appellant and Danny. The threatening statements by Danny, if...