Ryan S. Smith refused a judge’s order last fall to give a DNA sample, insisting to police that he didn’t care what court papers said.
“You are gonna have to Taser me if you want my DNA,” an officer reported Smith saying.
So police did just that, jolting Smith with electricity before swabbing the inside of his mouth.
Now the judge in the case wants to know why.
“This isn’t pretty,” Niagara County Court Judge Sara Sheldon Sperazza told lawyers involved in the case during a recent court appearance. “I’m fearful of how he’s been treated.”
Sperazza ordered several Niagara Falls police officers and an assistant district attorney to appear in her court Monday and provide sworn testimony to explain how Smith came to be shocked by a Taser on Sept. 29, 2008.
According to police records obtained by The Buffalo News, officers involved had been told by superiors to “use any means necessary” to collect the sample.
Criminal and civil attorneys say that Smith had a constitutional right to refuse the DNA request.
The judge could have ordered Smith jailed until he gave the sample, the lawyers said, but police and prosecutors had no legal authority to force him to provide one.
“If someone refuses to give their DNA, then they can be held in contempt and be held in jail until they comply,” said Patrick Balkin of Lockport, Smith’s defense lawyer.
Balkin said he never heard of anyone in the nation collecting a DNA sample using a Taser.
“It’s the worse thing I’ve ever seen,” he said. “You don’t even see people in a Third World country treated like this.”
After the DNA sample was obtained and tested, a grand jury last December handed up a 24-count indictment against Smith, 21, of Niagara Falls, in relation to a shooting and a gas station robbery. The indictment includes multiple counts of robbery, burglary, kidnapping, assault and criminal use of a firearm, as well as single counts of resisting arrest and menacing.
The last two charges accuse Smith of pointing a gun at a Niagara Falls police officer who responded to the robbery at a Sunoco gas station in the city on Dec. 24, 2006.
Smith also is accused in the July 27, 2006, shooting of Joseph Harris in the victim’s Niagara Falls home.
Smith’s DNA profile was on file in a state criminal justice databank because he had been jailed for two incidents that took place in 2005.
Sperazza granted him youthful- offender status in those cases.
Smith had responded to an order by Sperazza to provide a new DNA sample last August, before the latest cases landed him in Niagara County Court, but that sample was lost. After that, the court order for another new sample was obtained.
On Sept. 29, Niagara Falls Detectives Jim Galie and Frank Coney located Smith on Niagara Street and told him they needed to swab the inside his mouth for DNA, but Smith “was being uncooperative,” according to a report filed by Officer George W. McDonell.
McDonell responded to the call with Capt. David LeGault and Warrant Officer Bill Gee.
On the way to Police Headquarters, Smith said, “Man, this is messed up. I already gave them my DNA. I’m not giving it up again,” McDonell reported.
Once at headquarters, Smith told Officer Ryan G. Warme, “You are gonna have to Taser me if you want my DNA. I don’t care what the [court] paper says,” according to the police incident report.
Then Smith was taken to the Crime Scene Unit, where Officer Jason Sykes was to take the swab. When Smith again refused, Galie, Coney, Sykes, Warme and McDonell tried to reason with him, McDonell said.
“I ain’t giving up my DNA again, I already gave it up once,” Smith reportedly said. “I’ll sit in jail, I ain’t giving it up again. You’re going to have to taze me.”
Galie then contacted Detective Lt. William Thomson and Assistant District Attorney Doreen M. Hoffmann, McDonell reported.
“It was relayed the officers could use any means necessary to secure the sample,” he wrote.
At that point, McDonell used a Taser to apply a “drive stun” to Smith’s left shoulder. After that, he wrote, Smith complied with the order to provide his DNA.
According to his lawyer, Smith was handcuffed and on the floor when he was Tasered, and was rendered unconscious for a short time. He barely recalls the DNA being taken.
“You get pretty disoriented when you get hit by 50,000 volts,” Balkin said.
After the sample was taken, Smith was charged with second- degree contempt for failure to obey a court mandate.
On the report, the section where officers are asked if the suspect was read his Miranda rights has a check in the box marked “No.”
In any case in which a Taser is used, Niagara Falls officers are required to file a “use of force” form.
On Monday, Balkin plans to call all of the officers involved to testify except Warme, who has been jailed and suspended from his job since FBI agents charged him in October with wire fraud, conspiracy to distribute crack cocaine and other charges.
Balkin said he also plans to call Hoffmann to the witness stand.
“I’d like to give [Hoffmann] some credit in this case. I sure can’t picture any district attorney thinking that they would use a Taser,” Balkin said.
Hoffmann told The News that she will offer a very different version of what happened that day than Smith did.
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