The Akron Legal News

Man who killed confidential informant loses another appeal

ANNIE YAMSON
Special to the Legal News
Published: March 16, 2016

A man who was convicted for the aggravated murder of a confidential informant was denied habeas corpus relief for a second time when the federal 6th U.S. Circuit Court of Appeals considered his case.

Raymond Smith appealed from the judgment of the U.S. District Court for the Northern District of Ohio, which denied Smith’s habeas petition but certified several issues for appeal.

“Smith asserts three claims of error in this appeal,” reads the opinion from the 6th Circuit court, authored by visiting Judge Paige Hood. “For the reasons set forth below, the district court’s order denying habeas relief is affirmed.”

According to case summary, Smith was convicted by a jury on Dec. 5, 1995, for the murder of Ronald Lally, a witness in a criminal case against Smith.

Lally was a confidential informant who was wired by police and made a controlled buy from Smith and his son, Danny, in 1993. His body was found on Jan. 19, 1994 in a Cleveland cemetery.

An autopsy revealed that Lally had been shot in the head and then severely beaten, causing brain injuries and a skull fracture. He was also cut in the neck with a knife.

The coroner’s report noted that, if Lally was not dead when he was left in the cemetery, exposure to the cold combined with his injuries would have eventually killed him.

Six months later, Danny implicated his father in the homicide in an attempt to make a deal on other criminal charges he was facing.

Smith and his friend, Stanley Jalowiec, who was also involved in the murder, were charged, tried and each was sentenced to death.

In 2008, Smith’s sentence was commuted to life imprisonment after he was adjudicated intellectually disabled.

A direct appeal and several petitions for postconviction relief proved fruitless for Smith. In 2000, he filed a petition for a writ of habeas corpus in the district court.

The denial of the writ formed the basis for Smith’s most recent appeal, which called into question the state’s handling of witness testimony.

At issue was the testimony of Michael Smith, Smith’s other son.

During Smith’s trial, Michael was out of state and determined to be unavailable to testify.

In lieu of his personal appearance, the trial court admitted Michael’s deposition testimony in which he stated that he was sitting in the back seat of a car while, just outside, his father and Jalowiec shot and beat Lally to death.

Smith contended that, by admitting the deposition, the trial court violated his right to confront a witness and he accused the state of purposely procuring Michael’s absence during trial.

In support, Smith offered the affidavit of Ditanvia Geiger, dated Jan. 14, 1997, attesting to the fact that Michael told her that the assistant county prosecutor and a detective on the case “sent him to the state of Arizona prior to the trial of Raymond Smith.”

Reviewing these claims, the circuit court first noted that Smith was not denied his rights under the Constitution’s Confrontation Clause.

“The Ohio Supreme Court found that the testimony indicated Michael was out of the state and that reasonable efforts by the state to make him available to testify at trial were unsuccessful,” Hood wrote.

According to the high court, there was no evidence that the state was responsible for Michael’s absence.

Rather, the record showed that Michael made himself unavailable because he felt that his life was in danger.

“The Confrontation Clause guarantees an opportunity for effective cross examination,” Hood wrote. “Smith’s counsel had an opportunity and did cross examine Michael at his deposition.”

In keeping with the district court’s position on matter, the appellate panel noted that Smith failed to show that Michael’s testimony was unreliable or that it would have been different if he had given live testimony.

With regard to the Geiger affidavit, Hood noted that the Ohio Court of Appeals was the last court to consider the issue and it found that the argument was barred by res judicata.

The district court then held that the affidavit would not have materially changed the case that could have been presented on direct appeal.

“The Ohio courts clearly and expressly relied on Ohio’s res judicata doctrine in denying Smith’s request for an evidentiary hearing or other relief based on the Geiger affidavit,” Hood wrote. “The district court held that even if the Geiger affidavit constitutes ‘some’ evidence outside of the record, the affidavit is not clear and convincing evidence that the Ohio Supreme Court was wrong, on direct appeal, in its assessment of the state’s representations regarding Michael’s unavailability for trial.”

The circuit court held that Smith failed to show that previous state court rulings on the Geiger claim were “lacking in justification or resulted in the conviction of one who is actually innocent.”

“Smith is not entitled to habeas relief on this issue,” Hood wrote.

Smith’s final appellate claim was also premised on the Geiger affidavit, but couched as a claim that the prosecution purposely suppressed information about its knowledge of Michael’s whereabouts, violating precedent established in 1963’s Brady v. Maryland.

“Smith’s Brady claim falls short on several fronts,” Hood wrote.

The appellate panel ruled that Smith could not prove that the state was ever in possession of the Geiger affidavit or that it purposely suppressed the evidence.

It also pointed out that the affidavit was not material to Smith’s innocence.

“Its supposed ‘materiality’ resides in its usefulness to impeach testimony, unrelated to Smith’s guilt or innocence, but related only to representations made by the prosecution team regarding Michael’s unavailability,” Hood wrote.

Turning again to the district court’s disposition of the issue, the court of appeals held that “the unavailability of the Geiger affidavit did not result in such ‘prejudice’ as to undermine the integrity of the Ohio Supreme Court’s finding that Michael was adequately shown to be unavailable for trial to justify admission of his deposition transcript.”

Since Smith failed to show both cause and prejudice — both of which were needed to overcome his procedural default — the court of appeals found no error in the district court’s decision to deny habeas relief.

Circuit Judges David McKeague and Jane Stranch joined Hood to affirm the district court’s judgment.

The case is cited Smith v. Bagley, case No. 14-3413.

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