Appeals court affirms Larry's Brown's conviction for murder in Lorain in 2016

An appeals court rejected six arguments by a Louisville, Kentucky, man convicted of shooting and killing a family member inside a Lorain residence in July 2016. Larry Brown, 43, is serving life in prison with possibility of parole after 20 years for the shooting death of 66-year-old Lani "Smitty" Smith on July 14, 2016 — a member of his extended family who was like an uncle to him, family members said. Brown was convicted of murder, felonious assault, tampering with evidence and firearms charges by a jury in Lorain County Common Pleas Court in January 2020. Judge Chris Cook pronounced sentence after jurors deliberated for about four hours following a week-long trial. Brown appealed the conviction, arguing that Cook denied his motion to dismiss the charges in violation of his constitutional rights, including the right to a speedy trial; that Cook allowed an expert witness called by the Lorain County Prosecutor's Office to change his testimony on the stand; that the verdict was against the sufficiency and weight of the evidence; that his conviction was a result of the violation of his due process rights; that the court made a mistake when it failed to instruct the jury it could find Brown guilty of lesser-included offenses, including negligent homicide, reckless homicide, assault and negligent assault; and that Brown "did not receive effective assistance of counsel as guaranteed by the Sixth Amendment." Judge Lynn Callahan, who wrote the 28-page opinion handed down Monday, and judges Jennifer Hensal and Thomas Teodosio disagreed with all of Brown's arguments. The case faced numerous delays that prevented it from being tried for 3 1/2 years after the killing. Kenneth Lieux, who represented Brown at trial, was Brown's third attorney and told the court he had enough time to prepare, according to the appeals court. "Accordingly, the record does not indicate that the result of Mr. Brown's trial would have been different absent the delay that occurred," Callahan wrote. Additionally, Brown signed a form waiving his right to a speedy trial and never raised the issue of ineffective legal assistance in court, the judges found. "In this case, the testimony at trial was both extensive and detailed, and the exhibits were exhaustive," Callahan wrote, adding that the court "could not conclude that the record demonstrates that Mr. Brown was prejudiced." Furthermore, the trial record "is replete with evidence tending to demonstrate that Mr. Brown acted purposefully or knowingly" when he shot and killed Smith as they engaged in what was called at trial "horseplay" inside Smith's kitchen and bathroom — the latter being where police later found Smith's body. "Even viewing the evidence at trial in the light most favorable to Mr. Brown, this Court cannot conclude that Mr. Brown could reasonably have been acquitted of murder or felonious assault," Callahan wrote. Also, negligent homicide is not a lesser-included offense of murder under Ohio law because murder requires intent, while negligent homicide does not and "contains an element that felony murder lacks." Scott Fowler, a witness who was in the next room when Brown shot Smith, also was found to be credible by both the jury and the appeals court. Even if his "testimony was inconsistent with his prior statements in some respects, this court cannot conclude, as Mr. Brown suggests, that it must be disregarded entirely," Callahan wrote. Allowing prosecutors to recall a T-Mobile employee, who was not an "expert" witness but rather a records custodian, to correct a misstatement in his testimony about cellular phone records introduced as evidence also did not harm Brown's case. During his initial testimony, the witness reversed the definitions of two service codes used by T-Mobile to define what kinds of calls are received. He was called back to the stand by prosecutors to correct the error, "not for purposes of addressing his credibility," Callahan wrote, calling it "an inadvertent mistake" that did not harm Brown's case. Lastly, Brown did "knowingly, voluntarily and intelligently" waive his right to a speedy trial, but his argument that he was harmed because he was not present for every pretrial hearing in the case was rejected by the court. "The foundation of Mr. Brown's arguments is the assumption that he executed multiple speedy trial waivers that were each effective only until the next pretrial date," Callahan wrote. "This proposition is incorrect." Brown fired his first attorney, Michael Duff, the day before it was set to go to trial in August 2019 before Judge James Miraldi. At the time, Duff told The Chronicle-Telegram he advised Brown to take a plea deal that would have put him in prison for 14 years, with credit for the three years he already served in Lorain County Jail awaiting trial. Brown "wouldn't listen to me, so I asked the judge to take me off the case," Duff said at the time. "I'm no longer his attorney. He's on his own ... He should have taken that deal." Brown's second attorney was Kreig Brusnahan, who had to withdraw for medical reasons. Miraldi later recused himself from hearing the case after he had a conversation with Brown's father outside of court, and it was transferred to Cook's courtroom. Brown, whose legal name is Seydi Umar Cisse but who was tried under his former name, currently is incarcerated in the Lebanon Correctional Institution, according to the Ohio Department of Rehabilitation and Corrections. After killing Smith, Brown fled to Baltimore, Maryland, where he was later arrested while seeking medical treatment for a foot injury. He was brought back to Lorain County to face charges. The murder weapon was never found. His first parole hearing is scheduled for June 2036, according to the ODRC's website. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him at @daveobrienCT on Twitter.