State v. Humphrey , 2023 Ohio 1834 ( 2023 )

[Cite as State v. Humphrey, 2023-Ohio-1834.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. Nos. 29479; 29480
:
v. : Trial Court Case Nos. 2020 CR 03714;
: 2020 CR 03896
OCTAVIUS LAMONT HUMPHREY :
: (Criminal Appeal from Common Pleas
Appellant : Court)
:
...........
OPINION
Rendered on June 2, 2023
...........
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
OCTAVIUS LAMONT HUMPHREY, Appellant, Pro Se
.............
WELBAUM, P.J.
{¶ 1} Octavius Lamont Humphrey appeals pro se from his conviction and sentence
on three counts of murder, four counts of having a weapon while under disability, and
three firearm specifications in two cases.1
1Humphrey also was found guilty of other charges that the trial court found subject to
merger as allied offenses of similar import.
-2-
{¶ 2} Humphrey challenges the legal sufficiency and the manifest weight of the
evidence to sustain some of his convictions. He also alleges that prosecutorial
misconduct deprived him of a fair trial, that he was arrested unlawfully without a warrant
and without probable cause, and that a search warrant for his home was issued without
probable cause. Finally, he argues that he received constitutionally ineffective assistance
of trial counsel.
{¶ 3} For the reasons set forth below, we conclude that the challenged convictions
are supported by legally sufficient evidence and are not against the weight of the
evidence. We also are unpersuaded by Humphrey’s arguments about prosecutorial
misconduct, the lawfulness of his arrest, the existence of probable cause for a search
warrant, and ineffective assistance of counsel. Accordingly, the trial court’s judgment will
be affirmed.
I. Facts and Couse of Proceedings
{¶ 4} In December 2020, a grand jury indicted Humphrey in Montgomery C.P. No.
2020 CR 3714 on six counts of having a weapon while under disability. Later that month,
a grand jury indicted Humphrey in Montgomery C.P. No. 2020 CR 3896 on six counts of
murder with firearm specifications, six counts of felonious assault with firearm
specifications, and two counts of having a weapon while under disability. On Humphrey’s
motion, the trial court consolidated the two indictments.
{¶ 5} In April 2021, Humphrey filed a five-branch suppression motion. He later
withdrew four of the branches, retaining only a challenge to the validity of a search warrant
for his home and cell phones. The trial court overruled the suppression motion as well as
-3-
a motion to dismiss on speedy-trial grounds. During an April 2022 final pretrial
conference, Humphrey waived his right to a jury trial on all charges in Case No. 2020 CR
3714 and on the two weapon-under-disability charges in Case No. 2020 CR 3896. The
murder and felonious-assault charges in Case No. 2020 CR 3896 proceeded to trial
before a jury.
{¶ 6} The charges in both cases stemmed from a triple homicide at 2654 North
Gettysburg Avenue. At 5:48 p.m. on November 24, 2020, a police dispatcher received a
911 call from Dontay Alston, one of the victims. He told the dispatcher that he had been
shot by “Mont.” Law-enforcement officers responded and forced entry into the locked
home. Once inside, they discovered the lifeless bodies of Alston and two other men,
Michael Jackson and Justin Wilson. The three victims had been shot to death. Large
quantities of marijuana and cash were found inside the home.
{¶ 7} Investigators from the Dayton police department and the Montgomery
County sheriff’s office immediately began seeking the identity of “Mont.” Through their
law-enforcement network they identified an individual named Monte Fleming as
previously having visited 2654 North Gettysburg Avenue. Investigators also discovered
that Monte Fleming was the cousin of victim Dontay Alston.
{¶ 8} Shortly after the shooting, victim Michael Jackson’s fiancé, Dalisa Mitchell,
was taken to the police department and interviewed. Mitchell explained to investigators
that there was a “Monte” and a “Mont” and that they were different people.2 Through their
law-enforcement contacts, police also learned that the defendant, Octavius Lamont
2 The trial transcript spells Fleming’s first name alternatively as “Monte” and “Montay.”
-4-
Humphrey, was known by the nickname “Mont.” The investigators showed Mitchell two
photo spreads, one containing Monte Fleming’s picture and one containing the
defendant’s picture. Mitchell identified Fleming as someone she had seen at 2654 North
Gettysburg Avenue, but she did not know his name. When shown the other photo spread,
Mitchell identified the defendant as being “Mont.” Mitchell testified at trial that she had
known defendant Humphrey for approximately 15 years, that she always had known him
as “Mont,” and that other people also referred to him by that nickname. She testified that
she had seen the defendant purchasing marijuana at 2654 North Gettysburg on at least
two prior occasions. With regard to Monte Fleming, Mitchell confirmed that he was victim
Dontay Alston’s cousin. She did not know him very well and had seen him only once
outside the house at 2654 North Gettysburg. She had never known him to use the
nickname “Mont.”
{¶ 9} After discovering that defendant Humphrey was “Mont” and that he had a
connection to 2654 North Gettysburg, investigators learned that a black Buick car was
registered to him and that 220 Morgan Avenue was a possible address for him. In the
early morning hours of November 25, 2020, law-enforcement officers converged on 220
Morgan Avenue, which was approximately three miles away from the crime scene, and
saw the black Buick parked outside. Police surrounded the house and began
broadcasting for Humphrey to come out. Humphrey’s girlfriend exited the house and
confirmed Humphrey’s presence. After approximately 45 minutes, Humphrey came
outside and was arrested. He was in possession of a cell phone at that time.
{¶ 10} Police promptly obtained search warrants for both 2654 North Gettysburg
-5-
Avenue and 220 Morgan Avenue. Inside the Morgan Avenue home, they found a second
cell phone belonging to Humphrey as well as three operable firearms, none of which were
the murder weapon. They also found bags of marijuana and cash bundled with rubber
bands. Inside the residence at North Gettysburg, police found bags and rubber bands
similar to the ones found at Morgan Avenue. A firearm was located near victim Jackson’s
body, but it had not been fired. Police also found cell phones belonging to the three
victims.
{¶ 11} Subsequent cell-phone analysis established that one of Humphrey’s
phones had been near 2654 North Gettysburg at the time of the murders. That phone
was moving away from the crime scene at the time of victim Alston’s 911 call. Humphrey
also made a phone call from jail in which he admitted having been at 2654 North
Gettysburg shortly before the shooting. During that call to his girlfriend, Humphrey denied
having gone inside the house.
{¶ 12} In March 2022, a parole search resulted in the murder weapon being found
in the home of an individual named William Clark. Investigators ultimately determined that
Clark had not been involved in the shootings and that the gun possibly had been brought
into his home by a female, homeless drug addict.
{¶ 13} Following several days of testimony, the jury found Humphrey guilty on all
six counts of murder and all six counts of felonious assault as well as accompanying
firearm specifications. The trial court separately found him guilty on all weapon-under-
disability charges in Case No. 2020 CR 3714 and both of those charges in Case No. 2020
CR 3896.
-6-
{¶ 14} After merging allied offenses, the trial court sentenced Humphrey on three
counts of having a weapon while under disability in Case No. 2020 CR 3714. It imposed
a three-year prison term on each count and ordered those terms to be served
consecutively. In Case No. 2020 CR 3896, the trial court sentenced Humphrey on three
counts of murder, three firearm specifications, and one count of having a weapon while
under disability. It imposed prison terms of 15 years to life on each of the three counts of
murder, three years on each of the three firearm specifications, and three years for having
a weapon while under disability. The trial court ordered these sentences to be served
consecutively. Finally, the trial court ordered the sentences in both cases to be served
consecutively. Humphrey has appealed pro se in both cases, advancing six assignments
of error.
II. Sufficiency and Weight of the Evidence
{¶ 15} In his first two assignments of error, Humphrey challenges the legal
sufficiency and manifest weight of the evidence to sustain his convictions in Case No.
2020 CR 3896.
{¶ 16} With regard to legal sufficiency, Humphrey contends the record contains no
evidence linking him to any of the crimes committed inside the residence at 2654 North
Gettysburg. He claims the State did not connect him to the murder weapon, which was
found more than a year later in someone else’s home. He also points out the absence of
DNA evidence or surveillance footage linking him to the crime scene. Although police
found cash and marijuana in his home at 220 Morgan Avenue, Humphrey contends the
denominations were not “exactly the same” as the cash found at the crime scene. He also
-7-
argues that the similarity of marijuana bags and rubber bands found at his home and at
the crime scene was not particularly significant. Finally, he notes that cell phone records
were not precise enough to place him at the crime scene at the time of the shootings.
{¶ 17} With regard to the manifest weight of the evidence, Humphrey reiterates the
foregoing arguments. He also asserts that he was friends with victim Justin Wilson and
that the State presented no evidence explaining why he would kill his friend. Humphrey
points out that significant quantities of cash and marijuana were left at the crime scene,
suggesting that the motive for the shootings was not “greed.” He also cites Dalisa
Mitchell’s testimony that she knew a few people who use the nickname “Mont.”
{¶ 18} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 19} Our analysis is different when reviewing a manifest-weight argument. When
a conviction is challenged on appeal as being against the weight of the evidence, an
appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, and determine whether, in resolving conflicts in
the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v.
-8-
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A judgment should be
reversed as being against the manifest weight of the evidence “only in the exceptional
case in which the evidence weighs heavily against the conviction.” State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 20} With the foregoing standards in mind, we conclude that Humphrey’s
convictions in Case No. 2020 CR 3896 were based on legally sufficient evidence and
were not against the weight of the evidence. The primary issue in the case was the identity
of the shooter. Victim Alston told the 911 dispatcher that he had been shot by “Mont.”
Investigators promptly identified two potential suspects, Monte Fleming and defendant
Octavius Lamont Humphrey. However, Dalisa Mitchell advised them that the defendant
was the only one of these two men to be known by the nickname “Mont.” She also testified
that the defendant previously had purchased marijuana from 2654 North Gettysburg. In
addition, cell-phone records revealed that one of Humphrey’s phones was in the vicinity
of 2654 North Gettysburg minutes before the shooting, and Humphrey himself admitted
in a jail telephone call that he had been at 2654 North Gettysburg shortly before the
murders. Finally, the State presented evidence that similar bags of drugs and bands of
cash were found at the crime scene and at Humphrey’s house. This evidence, if believed,
was legally sufficient to prove Humphrey’s guilt beyond a reasonable doubt.
{¶ 21} Humphrey’s convictions also were not against the weight of the evidence.
The evidence linking him to the crimes included victim Alston’s identification of the shooter
as “Mont” and Mitchell’s identification of Humphrey as “Mont.” The accuracy of this
identification was corroborated by the cell phone records, Humphrey’s jailhouse phone
-9-
call, and, to some extent, the presence of similar-appearing bags of marijuana and
bundles of cash at the crime scene and in Humphrey’s house. The existence of DNA
evidence, surveillance footage, or evidence directly linking Humphrey to the murder
weapon would have made the State’s case stronger, of course, but the absence of such
evidence did not make his convictions against the weight of the evidence that was
presented. Dalisa Mitchell’s characterization of Humphrey and victim Justin Wilson as
“friends” and the presence of drugs and cash left at the crime scene were relevant
considerations for the jury, but these facts also fail to persuade us that the convictions
were contrary to the weight of the evidence.
{¶ 22} Mitchell’s statement that she “probably” knew a few people called “Mont”
likewise fails to establish that Humphrey’s convictions were against the weight of the
evidence. As set forth above, Mitchell initially explained that she had known defendant
Humphrey by the nickname “Mont” for 15 years and that victim Alston’s cousin Monte
Fleming did not use that nickname. The following exchange then occurred between the
prosecutor and Mitchell regarding Humphrey’s being “Mont”:
Q: Okay. You only know—how many Monts do you know?
A: I probably know a few, but—
Q: In this particular case.
A: In this situation I know just him.
Trial Transcript Vol. III at 465-466.
{¶ 23} Mitchell’s testimony that she probably knew multiple people called “Mont”
may have surprised the prosecutor, and we are uncertain what Mitchell meant when she
clarified that she knew only Humphrey by that nickname “[i]n this situation.” She may have
-10-
meant that Humphrey was the only “Mont” she knew who had any plausible connection
to the residence at 2654 North Gettysburg. In any event, the record contains no evidence
of anyone known as “Mont” other than Humphrey being in the vicinity of the crime scene
minutes before the shooting. After reviewing the entire record, weighing the evidence and
all reasonable inferences, and considering witness credibility, we cannot say that the jury
clearly lost its way and created a manifest miscarriage of justice. The evidence did not
weigh heavily against Humphrey’s convictions in Case No. 2020 CR 3896. For the
foregoing reasons, we overrule the first and second assignments of error.
III. Prosecutorial Misconduct
{¶ 24} In his third assignment of error, Humphrey alleges that prosecutorial
misconduct deprived him of a fair trial. His argument is that police tampered with evidence
by moving items inside his home and at the crime scene and that the prosecutor
introduced pictures of those items at trial.
{¶ 25} The test for prosecutorial misconduct is whether the challenged actions
were improper, and if so, whether they deprived the defendant of a fair trial. State v.
McGail, 2015-Ohio-5384, 55 N.E.3d 513, ¶ 9 (2d Dist.). The question is whether the
misconduct so infected the trial with unfairness that the convictions came in violation of
the defendant’s right to due process. Id.{¶ 26} We see no prosecutorial misconduct here. As the State correctly notes,
police officer Stephen Hargraves testified at trial and essentially admitted what Humphrey
alleges. Hargraves explained that items sometimes are moved, intentionally or otherwise,
when crime-scene technicians perform their work. He testified that items may be moved
-11-
so a placard can be placed next to them. Other times they may be moved for purposes
of inventorying or obtaining better photographs. He also acknowledged that items
sometimes may be moved inadvertently.
{¶ 27} Humphrey has failed to explain how incidental movement of the items at
issue—which included things such as marijuana, baggies, slippers, a pop bottle, a
suitcase, and items on a coffee table and on a bed—had any possible effect on the
outcome of his case. We do not see how knowing the precise original location of items
such as these could have led the investigation in a different direction or how the items
being moved by evidence technicians could have prejudiced him. Moreover, given that
Hargraves testified and acknowledged the movement Humphrey alleges, the jury was
able to consider that fact when evaluating the evidence. Under these circumstances, we
see no misconduct and no prejudice to Humphrey. The third assignment of error is
overruled.
IV. Legality of Arrest
{¶ 28} In his fourth assignment of error, Humphrey challenges the legality of his
arrest outside his home. He argues that police lacked probable cause to make the arrest
and that he later made unspecified incriminating statements during a post-arrest
interrogation. Although he does not say so explicitly, Humphrey appears to be making a
suppression argument based on the alleged illegality of his arrest.
{¶ 29} In response, the State notes that Humphrey withdrew the branch of his
pretrial suppression motion challenging the legality of his arrest and, therefore, that we
are limited to plain-error review. The State argues that no error exists, plain or otherwise,
-12-
because police possessed probable cause to arrest Humphrey outside his home.
{¶ 30} Upon review, we agree with the State. “[A] warrantless arrest based upon
probable cause and occurring in a public place does not, in general, violate the Fourth
Amendment.” State v. Brown, 2d Dist. Montgomery No. 26219, 2015-Ohio-1163, ¶ 12.
The existence of probable cause to arrest turns on whether reasonably reliable facts and
circumstances within the arresting officers’ knowledge were sufficient to cause a prudent
man to believe the suspect had committed or was committing a crime. Id.{¶ 31} Here one of the victims made a 911 call and reported that he had been shot
by “Mont.” Upon forcing entry into the home at 2654 North Gettysburg, police found three
victims who had been shot to death. Through their own investigation, law-enforcement
officers quickly learned that the “Mont” referenced by the 911 caller could be defendant
Humphrey. They then spoke to Dalisa Mitchell, the fiancé of one of the victims. She
confirmed that she had known Humphrey as “Mont” for 15 years and that he previously
had visited 2654 North Gettysburg to purchase marijuana. She also told investigators that
their other potential suspect, Monte Fleming, did not go by the nickname “Mont.” Police
then confirmed Humphrey’s address and observed his car parked outside his house. They
took him into custody when he came outside.
{¶ 32} Collectively, the information reported by the dying 911 caller and the
information provided by Mitchell gave police probable cause to believe that Humphrey
was the shooter. At a minimum, it is not plainly erroneous to reach such a conclusion.
Therefore, the warrantless arrest did not violate the Fourth Amendment. Humphrey’s
fourth assignment of error is overruled.
-13-
V. Validity of Search Warrant
{¶ 33} In his fifth assignment of error, Humphrey challenges the issuance of a
search warrant for 220 Morgan Avenue. Specifically, he contends a search-warrant
affidavit failed to establish probable cause that things mentioned in the affidavit would be
found in his home.
{¶ 34} “In determining the sufficiency of probable cause in an affidavit submitted in
support of a search warrant, ‘[t]he task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances set forth in the
affidavit before him, * * * there is a fair probability that contraband or evidence of a crime
will be found in a particular place.’ ” State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640(1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Ordinarily, “a probable cause inquiry must be
confined to the four corners of the affidavit.” State v. Klosterman, 114 Ohio App.3d 327,
332-333, 683 N.E.2d 100 (2d Dist.1996).
{¶ 35} “ ‘[T]he duty of a reviewing court is simply to ensure that the magistrate had
a “substantial basis for * * * conclud[ing]” that probable cause existed.’ ” State v. Jones,
143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 13, quoting Gates at 238-239,
quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
In doing so, “reviewing courts must examine the totality of the circumstances.” Id., citing
Gates at 238. “ ‘[T]rial and appellate courts should accord great deference to the
magistrate’s determination of probable cause, and doubtful or marginal cases in this area
should be resolved in favor of upholding the warrant.’ ” Id. at ¶ 14, quoting George at
-14-
paragraph two of the syllabus.
{¶ 36} The search warrant for 220 Morgan Avenue described the evidence to be
seized as follows:
Any Blood, Hair, Fiber, Clothing, or other Trace Evidence, including but not
limited to Fingerprints and DNA. Unknown handgun and any other firearms
or ammunition. Any writings, photographs or mail matter. Any documents or
items showing possessory interest in 220 Morgan Ave, Dayton, Ohio. The
person of Octavius Humphrey Black Male [date of birth and Social Security
number omitted]. Any illegal narcotics inside the residence. Black 2008
Buick 4 door sedan Ohio Plate JAW3018 VIN ending in 3512. Cash.
{¶ 37} Regarding probable cause to believe the foregoing things would be found
inside Humphrey’s residence, the trial court noted that substantially similar facts were
recited in warrant affidavits for 220 Morgan Avenue, 2654 North Gettysburg Avenue,
Humphrey’s cell phones, and his car. The trial court explained:
The affidavits for the warrants are virtually identical: each 1)
describing the time and location of the homicides; 2) stating that Mr.
Humphrey was positively identified by Ms. Mitchell as “Mont”; 3) stating a
male 911 caller reported that “Mont” shot them; 4) informing the reviewing
Judge that “Mont” was a regular participant in splitting up the drugs and that
a shipment of drugs was delivered to the Residence on November 24, 2020;
5) providing the three victims’ locations within the Residence and stating
they’d been shot; 6) setting forth the Officers’ observations from within the
-15-
Residence including the presence of over $24,000 in cash, spent .45 caliber
bullets, cellular telephones and over 6 pounds of marijuana and 7) detailing
that a public records search indicated Mr. Humphrey had a 2008 Buick 4
door sedan with a license plate number of JAW3018 registered in his name,
and that in the early morning hours of November 25, 2020 Officers drove by
his Home at 220 Morgan Avenue and observed the car parked in the
driveway.
Id. at 9-10.
{¶ 38} Considering the totality of the circumstances detailed in the warrant
affidavits, the trial court found probable cause to believe the evidence sought would be
found in the locations to be searched. The trial court also found that the affidavits and
warrants were not overbroad, that the items sought were described with sufficient
particularity, and that the facts contained in the affidavits were not stale.
{¶ 39} With regard to the warrant for 220 Morgan Avenue, Humphrey contends
“the front of the search warrant does not state a name that they’re looking for at 220
Morgan Avenue nor does the warrant support probable cause or a nexus that links Mr.
Humphrey or any property from 2654 N. Gettysburg Ave to 220 Morgan Ave.” He claims
the supporting affidavit did not support a finding that evidence of a crime would be found
inside his residence.
{¶ 40} Upon review, we find Humphrey’s arguments to be unpersuasive. The
search warrant did identify Humphrey as a person who might be found inside 220 Morgan
Avenue. In any event, it appears that he exited the house and was taken into custody
prior to execution of the warrant.
-16-
{¶ 41} With regard to probable cause, the trial court did not err in its ruling. The
affidavit supported a finding that Humphrey was the suspected shooter in a triple homicide
at 2654 North Gettysburg, the location of drug activity involving Humphrey and others.
The affidavit noted the 911 caller’s reference to the shooter as “Mont.” Based on
information obtained from Dalisa Mitchell, the affidavit stated that drugs had been
transported to the North Gettysburg address on November 23, 2020, to be divided for
sale. According to the affidavit, Mitchell told police that Humphrey, who she knew as
“Mont,” often was present at 2654 North Gettysburg “during the breakdown of drugs.” The
affidavit also stated that Mitchell denied knowing anyone other than Humphrey who used
the nickname “Mont.” Finally, the affidavit stated that police had found more than $24,000
in cash, more than six pounds of marijuana, and spent .45 caliber shell casings at the
crime scene. These facts established a fair probability that evidence related to the
murders or contraband such a drugs, cash, firearms, and other items would be found in
Humphrey’s home. The trial court certainly had a “substantial basis” for finding that
probable cause existed. Accordingly, the fifth assignment of error is overruled.
VI. Ineffective Assistance of Counsel
{¶ 42} In his sixth assignment of error, Humphrey alleges that his trial counsel
provided constitutionally ineffective assistance. Without elaboration, he identifies 10 ways
in which he believes his attorney failed to represent him effectively.
{¶ 43} To succeed on an ineffective-assistance claim, a defendant must establish:
(1) his trial counsel’s performance was deficient; and (2) the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674-17-
(1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989), paragraph two of the syllabus. To establish deficient performance, a
defendant must show that his trial counsel’s performance fell below an objective standard
of reasonable representation. Strickland at 688; Bradley at 142. To establish prejudice, a
defendant must show “a reasonable probability that, but for counsel’s errors, the
proceeding’s result would have been different.” State v. Hale, 119 Ohio St.3d 118, 2008-
Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688 and Bradley at paragraph
two of the syllabus. The failure to make a showing of either deficient performance or
prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697.
{¶ 44} When reviewing ineffective-assistance claims, “ ‘we will not second-guess
trial strategy decisions, and “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” ’ ” State v.
English, 2d Dist. Montgomery No. 26337, 2015-Ohio-1665, ¶ 10, quoting State v. Mason,
82 Ohio St.3d 144, 157-158, 694 N.E.2d 932 (1998), quoting Strickland at 689. Therefore,
“ ‘trial counsel is allowed wide latitude in formulating trial strategy[.]’ ” State v. Collins, 2d
Dist. Miami No. 2010-CA-22, 2011-Ohio-4475, ¶ 15, quoting State v. Olsen, 2d Dist. Clark
No. 2009-CA-110, 2011-Ohio-3420, ¶ 121. “Debatable strategic and tactical decisions
may not form the basis of a claim for ineffective assistance of counsel, even if, in
hindsight, it looks as if a better strategy had been available.” State v. Conley, 2015-Ohio-
2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Cook, 65 Ohio St.3d 516, 524-525,
605 N.E.2d 70 (1992).
1. Failure to file suppression motion
-18-
{¶ 45} Humphrey first alleges ineffective assistance of counsel based on his
attorney’s failure to file a motion to suppress evidence collected from 220 Morgan
Avenue. This argument lacks merit because his attorney did seek suppression of the
items found inside his home. In the sole branch of the suppression motion that was not
withdrawn, counsel unsuccessfully challenged the adequacy of the search warrant for
220 Morgan Avenue. Humphrey has not identified anything else that his attorney should
have done.
2. Failure to allow Humphrey to call witnesses or to testify at trial
{¶ 46} Humphrey contends his attorney provided ineffective assistance by not
allowing him to call witnesses or to testify on his own behalf. But Humphrey has not
identified any particular witnesses that should have been called. Nor does the record
reflect what testimony absent witnesses would have provided or how such testimony
would have affected the outcome. As for Humphrey’s failure testify, the record reflects
that he made that decision himself. Under these circumstances, he cannot establish
ineffective assistance of counsel.
3. Failure to “state case law” in speedy-trial motion
{¶ 47} Humphrey alleges ineffective assistance of counsel based on his attorney’s
failure to recite case law in an unsuccessful motion to dismiss on speedy-trial grounds.
As the State notes, however, defense counsel did cite the applicable statute and set forth
a timeline of events with tolling arguments. Therefore, the pertinent issues were properly
presented to the trial court. Humphrey has failed to demonstrate that defense counsel’s
addition of a case-law citation would have changed the trial court’s ruling.
-19-
4. Stipulation to 911 call
{¶ 48} Humphrey contends his attorney provided ineffective assistance by
stipulating that it was victim Alston’s voice on the 911 call. Prior to the stipulation,
however, the State represented that Dalisa Mitchell knew Alston and was prepared to
identify his voice on the call recording. We note too that police found the cell phone used
to make the 911 call in Alston’s hand when they entered the house. Under these
circumstances, we see no ineffective assistance of counsel arising from the stipulation.
5. Failure to identify and call confidential informant as a witness
{¶ 49} Humphrey challenges his attorney’s failure to seek the identity of a
confidential informant or to call the informant as a witness. As the State notes, however,
defense counsel did seek the informant’s identity. The trial court overruled the motion. As
a result, defense counsel could not call the informant as a witness. In any event,
Humphrey also cannot establish prejudice because we have no idea what testimony the
informant might have provided.
6. Allowing the prosecutor to use illegally-obtained evidence
{¶ 50} Humphrey contends his attorney improperly allowed the prosecutor to use
illegally-obtained evidence to suggest robbery as a motive for the shooting. But Humphrey
has not identified any illegally-obtained evidence. Humphrey had no standing to challenge
the search that led to the discovery of evidence inside 2654 North Gettysburg. With regard
to the search of Humphrey’s home at 220 Morgan Avenue, we have overruled his
assignment of error challenging the validity of a search warrant for that location.
Accordingly, defense counsel did not provide ineffective assistance by “allowing” the
-20-
prosecutor to use any evidence.
7. Failure to subpoena a female
{¶ 51} Humphrey alleges ineffective assistance of counsel based on his attorney’s
failure to subpoena a “female” referenced in an incident report. For its part, the State
suggests that the unidentified female was Dalisa Mitchell, who did testify at trial. But if it
was not Mitchell, Humphrey has not identified the female or explained how her absence
prejudiced him. Indeed, Humphrey cannot demonstrate prejudice on this record because
we have no way of knowing what testimony the unnamed female might have provided.
8. Failure to subpoena a deputy
{¶ 52} Humphrey also challenges his attorney’s failure to subpoena sheriff’s
deputy Benjamin Hale. He asserts that Hale was the first law-enforcement officer who
encountered Mitchell at the crime scene. The State responds that Humphrey’s claim
about Hale encountering Mitchell is unsupported by the record because Hale did not
testify at trial. Regardless, Humphrey once again cannot demonstrate prejudice because
we do not know what testimony Hale might have provided if he had been called as a
witness.
9. Failure to raise argument on motion to suppress
{¶ 53} Humphrey alleges ineffective assistance of counsel based on his attorney’s
failure to raise an argument concerning a lack of probable cause for a search warrant at
220 Morgan Avenue. As explained above, however, defense counsel did seek
suppression of the evidence found inside 220 Morgan Avenue. Counsel argued a lack of
probable cause, and the trial court overruled the motion.
-21-
10. Failure to address requested information
{¶ 54} In a final argument, Humphrey contends his attorney “failed to address the
information that [he] asked for under the compulsory process clause so that [he] would
have had a meaningful opportunity to present a case in his favor that equal matches that
of the prosecution.”
{¶ 55} In support of his argument, Humphrey cites pages 71 through 77 of his trial
transcript. On those pages, Humphrey engaged in a discussion with the trial court during
which he aired grievances. He began his argument as follows:
Under the depository process clause of Ohio state’s 15 states was
slightly irritations and work that puts emphasis on but not limited to the
(indiscernible) of defense witnesses. The depository (phonetic) process
clause defers in one significant respect from the confrontation clause and
other procedural guarantees of the Sixth Amendment (indiscernible), but
not unlimited. The right to be informed of the charges against him to receive
a speedy trial his desire.
Trial Tr. Vol. I at 71-72.
{¶ 56} Humphrey and the trial court proceeded to address various issues including
speedy trial, his indictment, a motion to dismiss, a motion to suppress, subpoenaing
witnesses, compulsory process, Brady violations, a confidential informant, and the
confrontation clause. Although Humphrey’s particular concern on appeal is unclear, it
appears that he may be complaining about never learning the identity of the confidential
informant. As noted above, however, defense counsel did seek that information. The trial
court simply overruled the motion. Under these circumstances, we see no ineffective
-22-
assistance of counsel. The sixth assignment of error is overruled.
VII. Conclusion
{¶ 57} Having overruled each of Humphrey’s assignments of error, we affirm the
judgments of the Montgomery County Common Pleas Court.
.............
LEWIS, J. and HUFFMAN, J., concur.