Supreme Court Denies Challenge to Retrial for Police Interference in Attempted Murder Case

Justices Clarence Thomas and Samuel Alito dissented, saying the Sixth Circuit erred in ordering a retrial in the attempted murder case from Ohio.

Supreme Court Associate Justice Clarence Thomas poses for an official portrait at the East Conference Room of the Supreme Court building in Washington on Oct. 7, 2022. Alex Wong/Getty Images

The U.S. Supreme Court decided on Jan. 27 not to take up Ohio’s appeal of a lower court ruling ordering the retrial of a man convicted of attempted murder.

The man argues that the police unfairly influenced the victim during the identification process.

Justices Clarence Thomas and Samuel Alito dissented from the high court’s new ruling in Davis v. Smith. The decision came in the form of an unsigned order. The order did not indicate the votes of the justices in the majority.

In his dissenting opinion that was joined by Alito, Thomas wrote that the federal Antiterrorism and Effective Death Penalty Act (AEDPA) restricts the ability of federal courts to review criminal convictions from state courts.

The statute allows the relief that was approved by the U.S. Court of Appeals for the Sixth Circuit only in “exceedingly rare circumstances” where it is reasonable and does not conflict with Supreme Court rulings.

“This court also has a job to do,” Thomas wrote.

“While ‘primary responsibility for the Sixth Circuit’s error rests with the Sixth Circuit,’ we too must ‘correct classic AEDPA abuses, especially when a lower court brazenly commits errors for which we have repeatedly reversed it.”

Ohio filed a petition with the Supreme Court in October 2024, arguing that the Sixth Circuit’s ruling that a state-level trial court erred when it did not suppress the identification “drifts so far from this Court’s teachings that the Court should summarily reverse.”

The respondent, David M. Smith, filed a brief in November 2024 arguing that the Sixth Circuit applied the law correctly.

Thomas recounted the facts of the case.

Smith met the victim, Quortney Tolliver, in 2015, through a friend they had in common, weeks before she was attacked at her mobile home. Smith and Tolliver drove 80 miles to buy crack cocaine. After Smith had run out of the drug, he offered to buy some from Tolliver, who said she no longer had any. The pair agreed to take another trip to buy drugs.

Smith did not pick up Tolliver to begin the journey, and someone went to Tolliver’s home, beat her with a hammer, and robbed her. Doctors put Tolliver in a two-week medically induced coma.

When she awoke, she failed to identify any of the individuals in police photos as the perpetrator. Police discovered that a telephone number associated with Smith “had exchanged 85 texts or calls with Tolliver’s phone number in the 24 hours before the attack,” Thomas wrote.

Police said cellphone-location data placed Smith near Tolliver’s home on the day of the attack. They also said physical evidence from the scene of the crime matched Smith’s DNA.

Weeks after the first interview with Tolliver, police officer Greg Johnson told the victim he believed Smith was her attacker. Johnson said Smith was “very violent” and “hoping you’re dead.”

Tolliver told Johnson “that she either dreamt or remembered that Smith hit her with a hammer.”

Weeks later, Tolliver attended court for sentencing on an unrelated matter and asked Johnson for a meeting. Tolliver told Johnson she was now “one hundred percent sure” Smith had attacked her, Thomas wrote.

When Johnson asked why Tolliver had not revealed the information previously, she replied that she withheld it because her mother was present during the interview and she didn’t want her to learn she had been selling drugs. She said she also held back because she didn’t want to admit to selling drugs while drug charges were pending against her at the time.

Ohio charged Smith with attempted murder and other offenses. Before the trial, Smith asked the court to suppress the identification of him by Tolliver, arguing that Johnson “was unnecessarily suggestive when interviewing her.”

The trial court declined to do so, and a jury convicted Smith of attempted murder, felony-level assault, aggravated robbery, and aggravated burglary. He received a 22-year prison sentence.

Smith appealed, repeating his motion to suppress the identification. The Ohio Court of Appeals affirmed the verdict in 2018 even though it “acknowledged that Johnson’s identification procedure was unnecessary and impermissibly suggestive.”

Thomas wrote that the court stated correctly that “identifications tainted by unduly suggestive police procedures” may be excluded only in very rare situations. The Supreme Court ruled in 2012 that an identification may be suppressed only if the evidence poses “a very substantial likelihood of irreparable misidentification.”

The Ohio Court of Appeals had applied precedent correctly, he wrote, finding that the identification was reliable enough to pass muster. The Ohio Supreme Court declined to review the ruling.

Smith applied to a federal district court for relief, but the court ruled for the state. Smith then appealed to the Sixth Circuit, which reversed and ordered Ohio to retry Smith.

Thomas wrote that the Sixth Circuit’s “errors have real consequences.”

Ohio now has to “retry Smith for a crime committed nearly a decade ago. That result comes at a steep cost for both society and victim,” Thomas said.