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CRIME Appellate court upholds drug conviction



Published: Wed, January 19, 2005 @ 12:00 a.m.



A poor-quality audio surveillance tape was at the heart of the defense argument.

WARREN -- There won't be a new trial for a man convicted of selling marijuana out of his Niles computer repair shop.

Clifton D. Smith Sr. was arrested in July 2002 and was 28 at the time, operating PC Plus Computers, 409 W. Park Ave.

He appealed the Trumbull County Common Pleas Court judgment that sentenced him to 11 months in prison for trafficking marijuana.

The 11th District Court of Appeals upheld the conviction this week.

What happened

Smith would buy old computers from businesses or government agencies, refurbish the computers and resell them.

Police, however, received complaints suggesting there was drug activity at the store.

Detective Fred Raines of the Trumbull County Sheriff's Department went to Smith's computer business with an undercover informant to try to buy drugs. Niles police officer James Robbins went along but waited in the car. Robbins and Raines were assigned to the Trumbull County Drug Task Force.

During the time Raines was in Smith's store, he was wearing a device that transmitted conversations to a patrol car parked outside, where Robbins was listening. The recording was poor and contained a lot of static.

Once in the store, the confidential informant introduced Raines to Smith, using an alias for the detective. The three individuals went to the basement, where Raines bought $185 worth of marijuana.

Raines returned to Smith's store at a later date. This time, Smith said he didn't know what the detective was talking about, so Raines left.

On a subsequent date, a uniformed officer was sent to the store. The officer informed Smith that the city was looking to sell some computers and he should go to the Niles Police Station to look at them.

After Smith arrived, Raines told him the true reason he was there was to talk about the drugs. Smith was asked to provide information regarding his supplier. In exchange, the officers told him, they would make recommendations to the prosecutor's office. Smith did not accept.

He was charged with trafficking in marijuana, a fifth-degree felony. Smith pleaded innocent and, at a jury trial, was found guilty.

The appeal

Smith's appeal said the trial court erred and abused its discretion by permitting the prosecution to publish a transcript of audio surveillance tapes to the jury.

The defense lawyer, Michael A. Partlow of Cleveland, argued that he had listened to the tape several times and was unable to make out much of the conversations. The trial court overruled defense counsel's objection.

On two occasions, the trial court instructed the jury that they are to listen to the tape, that the transcript is merely an aid, and if there is a conflict between the tape and the transcript, they should defer to the tape.

Smith also argued that the trial court did not review the transcripts to ensure their accuracy.

"Smith does not point to any specific instance of inaccuracy," the appeals court opinion states. "We have listened to the audiotape and agree that it is of poor quality. However, when comparing the audiotape to the transcript, we are unable to note any material differences between the two."




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