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Appeals court: Former Canfield doc’s rape case confession inadmissible



Published: Sat, February 2, 2013 @ 12:04 a.m.

By Peter H. Milliken

milliken@vindy.com

YOUNGSTOWN

A three-judge panel of the 7th District Court of Appeals has ruled unanimously that a statement to police by a former Canfield physician charged with raping a female patient is inadmissible in his trial.

Mahoning County Prosecutor’s Office staff had appealed a ruling by visiting Judge Thomas J. Pokorny of common pleas court that excluded the statement former physician Larry Lee Smith made to Canfield police on Oct. 8, 2010.

Smith, 73, was charged with raping the patient during an Oct. 4, 2010, office visit.

“The trial court applied the appropriate legal standard when it found that appellee’s [Smith’s] will was overborne and his capacity for self-determination was critically impaired due to coercive conduct by the police,” during a 47-minute, secretly recorded interrogation, the appeals panel ruled Friday.

Smith denied having sexual contact with his patient no fewer than five times, admitting such contact with the patient’s consent only after Detective Brian McGivern erroneously told him at least seven times he could legally engage in sexual activity with his patients, the appeals court noted.

When he filed the appeal, Ralph M. Rivera, an assistant county prosecutor, said the prosecution has no reasonable chance of success in its case against Smith unless his statement to police is admissible in a trial.

Smith’s medical license was revoked by the Ohio State Medical Board on May 12, 2011.

That revocation was based on Smith’s misdemeanor conviction related to his personally furnishing a controlled substance to a patient and on the board’s finding that he engaged in sexual misconduct with two patients to whom he provided Suboxone as treatment for drug addiction.

In another case related to a defendant charged with rape, Judge James C. Evans of commonpleas court ruled Friday that one statement by defendant Willie Parker to Youngstown police was admissible as evidence, but a second statement during a voice-stress analysis was inadmissible.

A grand jury last July indicted Parker, 50, of Akron, on 20 counts of rape and 20 counts of gross sexual imposition on a minor in Mahoning County between Sept. 1, 1999, and Sept. 28, 2001.

In a judgment entry, Judge Evans wrote that Detective Sgt. David Lomax failed to warn Parker of his right to remain silent before conducting the VSA — a test which the judge said researchers found to be of “poor” evidentiary quality.

“In his efforts to prove deception, Officer Lomax relied on improper and coercive comments in his efforts to convince defendant that he did something unlawful,” Judge Evans ruled.


Comments

1retiredfella(31 comments)posted 1 year, 5 months ago

Again money walks

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