State v. Griffith , 2013 Ohio 256 ( 2013 )

[Cite as State v. Griffith, 2013-Ohio-256.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97366
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICKY C. GRIFFITH
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-549701
Application for Reopening
Motion No. 458184
RELEASE DATE: January 29, 2013
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, OH 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} On August 31, 2012, the applicant, Ricky Griffith, pursuant to App.R. 26(B),
applied to reopen this court’s judgment in State v. Griffith, 8th Dist. No. 97366,
2012-Ohio-2628, in which this court affirmed Griffith’s conviction for one count of
felonious assault. Griffith now argues that his appellate counsel should have argued the
following: (1) trial counsel was ineffective when she stated during voir dire and opening
statements that Griffith and another witness would testify, and then she failed to call any
witnesses; (2) the prosecutor engaged in misconduct by vouching for the credibility of the
victim; (3) trial counsel was ineffective for failing to object to the prosecutor’s
misconduct; (4) trial counsel was ineffective for failing to request a jury instruction on the
inferior degree of aggravating menacing; (5) Griffith’s sentence is disproportionately
harsh; and (6) cumulative errors deprived Griffith of due process. On October 31,
2012, the state of Ohio filed its brief in opposition. For the following reasons, this court
denies the application to reopen.
{¶2} 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.
{¶3} 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.
{¶4} 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.
{¶5} 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.
{¶6} The evidence at Griffith’s trial showed that when the victim, Caresse Cortez,
returned to her car from having been inside a post office, a pickup truck was parked next
to it, and there was a new paint mark on the side of her car. While Cortez was trying to
rub out the mark, Griffith returned to his pickup truck and told Cortez to “move out of the
way, bitch.” She replied that he had hit her car, and she was trying to rub out the mark.
He stated that he did not hit her car and called her a “spic.” Cortez then asked for
Griffith’s insurance information, which he refused to give her. He then shoved her out
of the way to open his door. Cortez bounced off her car and back into his door, which
caused the door to close on Griffith’s finger. Griffith screamed in pain and said, “now
I’m going to hit your car dumb spic bitch.” He slammed his truck door against Cortez’s
car and dented it. Realizing that Griffith was leaving the scene, Cortez moved behind
and just to the side of the truck to take a photograph of his license plate. Griffith told
her, “[g]o ahead, get a good picture, get it good, bitch.” He then backed up his truck.
Cortez had to move out of the way for fear of being struck. Subsequently, in discussing
the matter with the police, Griffith admitted that he saw Cortez behind his vehicle and
that he “gunned it to get out of there.” 2012-Ohio-2628, ¶ 5 and 6.
{¶7} Griffith’s first argument — that his trial counsel was ineffective because she
told the jury that she would call witnesses but then did not — is unpersuasive because of
res judicata and lack of prejudice. Griffith’s appellate counsel made the same argument,
and this court thoroughly examined the issue and concluded there was no error.
{¶8} Griffith’s next arguments are that the prosecutor engaged in misconduct by
vouching for Cortez’s credibility and that defense counsel was ineffective for failing to
object to the misconduct. During closing argument, the prosecutor reviewed the facts
and stated that Cortez’s testimony showed that Griffith was angry, yelling racial slurs,
pushing, and slamming the door into Cortez’s car. He told the jury that, “You’ll make
the determination if she’s credible or not. I submit to you that she absolutely is. She
has things to back that credibility up.” (Tr. 325-326.) The prosecutor then referred to
the police officer’s testimony that he saw the damage to Cortez’s car and to Cortez’s
photographs of her car as corroboration of Cortez’s credibility. Griffith’s counsel did
not object. This is the only instance of misconduct Griffith argues.
{¶9} A prosecutor may not express a personal opinion as to the credibility of a
witness. Nevertheless, the test for prosecutorial misconduct is whether the remarks were
improper, and if so, whether they prejudicially affected the accused’s substantial rights.
The touchstone is the fairness of the trial. In examining whether the statements rendered
the trial unfair, a court should consider several factors, including: (1) whether the
evidence is strong, (2) whether the statements misled the jury, (3) whether the remarks
were isolated or extensive, and (4) whether the remarks were deliberate or accidental.
Slagle v. Bagley, 457 F.3d 501 (6th Cir.2006); and State v. Davis, 116 Ohio St.3d 404,
2008-Ohio-2, 880 N.E.2d 31.
{¶10} In the present case, the prosecutor’s remark is isolated and is sandwiched
between an affirmation that the jury is the determiner of credibility and an analysis of the
evidence showing corroboration. It is difficult to conclude that such a remark misled the
jury or resulted in prejudice. Accordingly, this court will not second-guess appellate
counsel’s reasonable professional judgment in declining to argue this point.
Furthermore, if the direct argument on prosecutorial misconduct was unpersuasive, then
the indirect argument through the lens of ineffective assistance of counsel would also be
unpersuasive.
{¶11} Griffith next claims that his trial counsel was ineffective for failing to
request a jury instruction on the inferior degree of aggravated menacing. However, in
State v. Griffie, 74 Ohio St.3d 332, 1996-Ohio-71, 658 N.E.2d 764, the Supreme Court of
Ohio affirmed the denial of an App.R. 26(B) application to reopen, which argued that trial
counsel should have requested a jury instruction on a lesser-included offense. The court
ruled that “[f]ailure to request instructions on lesser-included offenses is a matter of trial
strategy and does not establish ineffective assistance of counsel.” Id. at 333. This is
especially true in the present case, because trial counsel’s strategy was to characterize
Griffith’s actions as innocent: he was just trying to leave a parking lot incident; he was
not knowingly trying to harm or scare Cortez. Therefore, appellate counsel was not
ineffective in rejecting this proposed assignment of error.
{¶12} Griffith also argues that his sentence was contrary to law, because it was too
harsh. He did not harm Cortez, and Griffith asserts that similar offenders received lesser
sentences than he received. Trial counsel probably preserved this argument by asking
for probation, noting that the man who had raped Griffith and his brother as children had
gotten three years, and stating that in many other felonious assault cases the victim was
hurt.
{¶13} In order to prevail on a disproportionately harsh sentence argument, the
appellant must clearly and convincingly establish that his sentence is inconsistent with
sentences of similar defendants in similar cases. Felonious assault under R.C.
2903.11(A)(2), knowingly cause or attempt to cause physical harm by means of a deadly
weapon, to wit a motor vehicle, is a second degree felony, punishable by probation or a
prison sentence from two to eight years in yearly increments. The trial judge imposed a
four-year sentence. In imposing the sentence, she recounted 17 criminal incidents in
which Griffith was involved.1 She also noted that she did not see remorse from
Griffith and that his statement at sentencing was inconsistent with Cortez’s credible
testimony. The judge further indicated that Griffith’s random act of violence was
The trial judge did not always state whether these were convictions or merely arrests.
1
disconcerting and invoked the need to protect the public. Given the general seriousness
of the case, Griffith’s criminal history, the midrange of the sentence, the judge’s stated
need to protect the public from random acts of violence, and the clear and convincing
standard to overturn the sentence, it is understandable that appellate counsel in the
exercise of professional judgment declined to pursue this issue.
{¶14} Finally, Griffith argues cumulative error. Because his other assignments of
error are not well-founded, this argument is necessarily unpersuasive. Griffith has not
established a genuine issue as to whether he was deprived of the effective assistance of
appellate counsel.
{¶15} Accordingly, this court denies the application to reopen.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
KENNETH A. ROCCO, J., CONCUR