State v. Banks , 2021 Ohio 511 ( 2021 )

[Cite as State v. Banks, 2021-Ohio-511.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108166
v. :
DA’MONTAIS BANKS, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: February 19, 2021
Cuyahoga County Court of Common Pleas
Case No. CR-17-622412-A
Application for Reopening
Motion No. 540657
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brandon A. Piteo, Assistant Prosecuting
Attorney, for appellee.
David N. Patterson, for appellant.
EILEEN A. GALLAGHER, P.J.:
On August 19, 2020, the applicant, Da’Montais Banks, Jr., pursuant
to App.R. 26(B), applied to reopen this court’s judgment in State v. Banks, 8th Dist.
Cuyahoga No. 108166, 2020-Ohio-3029, in which this court affirmed his
convictions for aggravated murder, murder, attempted murder, aggravated robbery,
kidnapping, felonious assault, grand theft, criminal gang activity, having weapons
while under disability, tampering with evidence and discharge of a firearm on or
near prohibited premises. Many of these charges carried criminal gang activity
specifications. Banks now argues that his appellate counsel was so ineffective that
he should be entitled to a “do over.” Specifically, he maintains that his appellate
counsel should have argued that his trial counsel failed to file a motion to suppress
evidence from his illegally seized cell phone, failed to request a limiting instruction
on other acts evidence and that the trial judge erred in denying a motion in limine
precluding the state’s gang expert from testifying, particularly because the judge
failed to issue written findings of fact and conclusions of law. The state filed its brief
in opposition on October 10, 2020. For the following reasons, this court denies the
application.
In order to establish a claim of ineffective assistance of appellate
counsel, the applicant must demonstrate that counsel’s performance was deficient
and that the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534,
1996-Ohio-21, 660 N.E.2d 456.
In Strickland, the United States Supreme Court ruled that judicial
scrutiny of an attorney’s work must be highly deferential. The court noted that it is
all too tempting for a defendant to second-guess his lawyer after conviction and that
it would be all too easy for a court, examining an unsuccessful defense in hindsight,
to conclude that a particular act or omission was deficient. Therefore, “a court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland at 689.
Specifically, in regard to claims of ineffective assistance of appellate
counsel, the United States Supreme Court has upheld the appellate advocate’s
prerogative to decide strategy and tactics by selecting what he thinks are the most
promising arguments out of all possible contentions. The court noted:
“Experienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S.
745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker
arguments might lessen the impact of the stronger ones. Accordingly, the court
ruled that judges should not second-guess reasonable professional judgments and
impose on appellate counsel the duty to raise every “colorable” issue. Such rules
would disserve the goal of vigorous and effective advocacy. The Supreme Court of
Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366,
672 N.E.2d 638.
Moreover, even if a petitioner establishes that an error by his lawyer
was professionally unreasonable under all the circumstances of the case, the
petitioner must further establish prejudice: but for the unreasonable error there is
a reasonable probability that the results of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. A court need not determine whether counsel’s
performance was deficient before examining prejudice suffered by the defendant as
a result of alleged deficiencies.
Banks’ arguments concern the testimony of the Cleveland Police
Department gang expert, Detective Mobley. In late 2015, Mobley was monitoring
gang activity through social media posts and saw evidence that Banks was involved
with the Heartless Felons gang. In December 2015, Banks was shot in a drive-by
shooting.1 Mobley testified that he seized Banks’ cell phone as evidence at that time.
He correctly guessed the cell phone’s passcode as numbers Banks repeatedly used
and which were associated with the Heartless Felons gang. He was thus able to place
the cell phone in “airplane mode,” which would prevent the phone from being
remotely wiped. He did not search the contents of the phone at that time.
In February 2016, Banks consented to have police search his phone
but they also obtained a search warrant for the phone which contained photos and
messages identifying Banks as a Heartless Felon.
The state proffered Detective Mobley as a gang expert. Defense
counsel filed a motion in limine seeking to disqualify him as an expert. The trial
1 This incident was unrelated to the crimes for which Banks faced trial and was
convicted.
judge summarily denied the motion, along with other motions in limine seeking,
inter alia, to preclude GPS and DNA evidence. At trial, defense counsel conducted
a voir dire of Detective Mobley regarding his qualifications and renewed the
objection to his being recognized as an expert. The trial judge, after hearing
argument, denied the objection and let Mobley testify as an expert.
Mobley testified that in various photographs and messages, some of
which came from Banks’ cell phone, Banks identified himself as a member of the
Heartless Felons by showing the gang’s hand gesture and using gang terms.
Banks now proposes that his appellate counsel should have argued
that, in December 2015, Detective Mobley illegally seized Banks’ cell phone because
as Banks was the victim of a crime, not the suspect, there was no justification to seize
the phone. Thus, any results of the search become fruit of the poisonous tree and
inadmissible.
However, Banks is unable to establish prejudice. The material from
the 2015 cell phone was not the only evidence that established Banks as a gang
member. There was also the evidence from social media that Mobley presented.
Furthermore, this court concluded there was overwhelming evidence of his guilt and
that it was unrelated to Mobley’s conclusion that Banks was a gang member.
Moreover, Banks was under investigation as a gang member in
December 2015, and the exact specifics of the phone’s seizure were not developed.
Mobley seized the phone and did only what was necessary to preserve its contents;
he did not search it. Other Ohio courts have held that the warrantless seizure of a
cell phone and subsequent search pursuant to a search warrant did not violate the
Fourth Amendment. State v. Hidey, 5th Dist. Tuscarawas No. 2016 AP 03 0017,
2016-Ohio-7233, and State v. Cunningham, 2d Dist. Clark No. 10-CA-57, 2012-Ohi0
2794. Given that Banks subsequently consented to the search of the phone and that
the police also obtained a search warrant, it is understandable that in the exercise of
professional judgment, appellate counsel declined to raise this issue.
Banks also argues that his trial counsel was ineffective for failing to
request a limiting instruction on other acts evidence in violation of his Fourth and
Fourteenth Amendment Rights. Although the evidence of Banks’ gang affiliation
was admissible to prove the gang specifications and the criminal gang activity count,
he asserts that the evidence of his gang membership was prior “bad acts” that caused
his convictions on the other counts. Again, there was no prejudice. This court ruled
that “[t]he evidence establishing Banks’ guilt of the underlying counts was both
overwhelming and unrelated to Mobley’s conclusion that Banks was in the gang.”
2020-Ohio-3029, ¶ 45. There was no prejudice from the cell phone evidence.
Banks now asserts that his appellate counsel should have argued that
it was error for the trial judge to deny the motion in limine that Detective Mobley
should not testify as an expert witness. However, appellate counsel did argue this
issue directly ─ that the trial court erred in admitting testimony of a “gang expert,”
in violation of Ohio Evid.R. 702. Following the admonishment of the Supreme
Court, this court will not second-guess appellate counsel’s tactical decision to
address an issue directly, rather than through the lens of a motion in limine.
Banks also argues that his appellate counsel was so ineffective that he
should be granted an entire “do over.” Banks’ appellate counsel argued that Counts
19 and 33, the murder counts, were not supported by sufficient evidence and were
against the manifest weight of the evidence. However, Count 19 was merged with
other murder counts, and the trial court sentenced on Count 20; thus, there was no
conviction on Count 19. This court ruled that it could not review any error not
related to an actual conviction.
Accordingly, Banks now proposes that appellate counsel’s tactical
error, which precluded an argument, shows such incompetency that he should be
allowed a new appeal. However, this court notes that appellate counsel did present
arguments on an independent murder conviction and also argued that Detective
Mobley should not have been allowed to testify as an expert. This court again notes
that there was overwhelming evidence of Banks’ guilt. Thus, prejudice cannot be
established.
Accordingly, this court denies the application to reopen.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
MARY EILEEN KILBANE, J., CONCUR