The Akron Legal News

Man who choked friend to death loses his appeal

ANNIE YAMSON
Special to the Legal News
Published: June 5, 2014

A three-judge appellate panel in the 8th District ruled recently that the Cuyahoga County Court of Common Pleas properly convicted Damon Smith of involuntary manslaughter and felonious assault.

Smith was charged in 2012 with codefendant Cynthia Robinson on two counts of murder and two counts of felonious assault.

Prior to trial, Robinson pleaded guilty to aggravated assault and was placed on three years of community control.

Smith’s case, however, proceeded to a jury trial.

The charges stemmed from an evening during which Robinson and her boyfriend, Melvin Jackson, went over to Smith’s apartment to watch TV.

Robinson testified that the three of them drank beer and liquor and smoked crack cocaine.

At some point in the night, Robinson and Jackson began fighting and their disagreement turned physical.

Smith and Robinson both told police that they were the ones who called 911.

The emergency operator heard screaming and fighting in the background and twice during the phone call Jackson could be heard saying “I can’t breathe.”

Cleveland police called back a few minutes after the original phone call and Smith got on the line and said, “Right now I’m holding somebody down ... Right now he’s not fighting, right now I need this person out of my house.”

Jackson could not be heard in the background during the second call.

Paramedic Larry Boyer testified that he and another paramedic were the first to arrive on the scene.

He told the trial court that Smith and Robinson were calmly waiting outside when they pulled up.

Smith claimed that there was a man inside “tearing up the place” so Boyer waited for police to arrive.

But when they did not hear any noise coming from inside, Boyer and his partner entered the apartment alone.

Jackson was found kneeling on the floor, facedown on a couch cushion.

Boyer could not find a pulse and the paramedics were unsuccessful at reviving him.

He was pronounced dead after being transported to a hospital.

Smith told responding officers that Jackson had tried to choke Robinson and he was trying to defend her.

According to him, Jackson hit him in the face so he put Jackson in a chokehold.

He also tried to scare Jackson with a sword he had laying around but ended up cutting himself in the process.

A forensic pathologist testified during trial that the cause of death was asphyxia due to cervical compression.

She said the death was consistent with pressure that was continually applied after a loss of consciousness.

Crime scene detectives testified that Smith’s apartment was cluttered but there was no sign of a physical struggle. Two crack pipes were recovered from atop a bedroom dresser.

Smith was “calm and cooperative” during his police interview but his story differed slightly from Robinson’s.

She stated that Jackson attacked Smith first and claimed she was the first to call police.

Smith denied smoking crack that evening and insisted that Robinson put Jackson in a chokehold after he began to attack her.

He also said the paramedics were being untruthful and that he stayed inside the apartment until they arrived.

Smith admitted to choking Jackson but maintained that Jackson never went limp.

After the jury returned guilty verdicts and the trial court sentenced him to serve five years in prison, Smith appealed, challenging the weight of the evidence supporting his convictions.

“Smith argues that the jury lost its way because it rejected his claim of self defense,” wrote Presiding Judge Larry Jones on behalf of the court of appeals. “He points to the facts that he called 911 and was cooperative with police to support his self defense claim.”

The appellate panel pointed out that Smith gave police inconsistent versions of the evening’s events.

At first, he never mentioned that Robinson had also put Jackson in a chokehold.

It was only when he found out Jackson’s cause of death that Smith insisted that Robinson choked Jackson first.

The court of appeals also consulted the 911 recordings. In the first one, it heard Jackson stating that he could not breathe.

During the second call, however, Smith told the dispatcher that Jackson was no longer fighting and that he was holding him down. Jackson could no longer be heard in the background.

“The state’s theory was that Smith choked Jackson until he lost consciousness, continued to choke him until he stopped breathing and then left him facedown in the couch cushion, further obstructing his airway,” wrote Jones. “Faced with conflicting evidence, the jury chose to reject Smith’s claims.”

Likewise, the appellate panel rejected Smith’s argument that his convictions were against the weight of the evidence.

The court of appeals proceeded to address Smith’s remaining arguments that he received ineffective assistance of counsel and that the trial court erred by failing to instruct the jury on aggravated assault.

The judges found little merit to Smith’s claims and affirmed the convictions and sentence handed down in the Cuyahoga County court.

Judges Kathleen Keough and Melody Stewart concurred.

The case is cited State v. Smith, 2014-Ohio-2057.

[Back]