State v. Lee , 2021 Ohio 2925 ( 2021 )

[Cite as State v. Lee, 2021-Ohio-2925.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109215
v. :
ANDRE LEE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: August 20, 2021
Cuyahoga County Court of Common Pleas
Case No. CR-19-643978-A
Application for Reopening
Motion No. 545002
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Callista Plemel, Assistant Prosecuting
Attorney, for appellee.
Patituce & Associates, LLC, Joseph C. Patituce and
Megan M. Patituce, for appellant.
ANITA LASTER MAYS, J.:
Andre Lee has filed a timely App.R. 26(B) application for reopening.
Lee is attempting to reopen the appellate judgment, rendered in State v. Lee, 8th
Dist. Cuyahoga No. 109215, 2020-Ohio-6738, that affirmed his conviction and
sentence for the offenses of murder (R.C. 2903.22(B)), felonious assault (R.C.
2903.11(A)(1)), carrying a concealed weapon (R.C. 2923.12(A)(2)), drug possession
(R.C. 2925.11), and possessing criminal tools (R.C. 2923.24). We decline to reopen
Lee’s appeal for the following reasons.
I. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
In order to establish a claim of ineffective assistance of appellate
counsel, Lee is required to establish that the performance of his appellate counsel
was deficient, and the deficiency resulted in prejudice. Strickland v. Washington,
466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111
L.Ed.2d 767 (1990).
In Strickland, the United States Supreme Court held that a court’s
scrutiny of an attorney’s work must be highly deferential. The court further stated
that it is all too tempting for a defendant to second-guess his attorney after
conviction and that it would be too easy for a court to conclude that a specific act or
omission was deficient, especially when examining the matter in hindsight. Thus, a
court must indulge in 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.
Moreover, even if Lee establishes that an error by his appellate
counsel was professionally unreasonable, Lee must further establish that he was
prejudiced; but for the unreasonable error there exists a reasonable probability that
the results of his appeal would have been different. Reasonable probability, with
regard to an application for reopening, is defined as a probability sufficient to
undermine confidence in the outcome of the appeal. State v. May, 8th Dist.
Cuyahoga No. 97354, 2012-Ohio-5504.
II. First Proposed Assignment of Error
Lee’s first proposed assignment of error is that:
The failure to inquire into the conflict in the attorney-client
relationship before denying Mr. Lee’s motion to discharge counsel is
structural error.
Lee, through his first proposed assignment of error, argues that the
trial court erred by denying his request for new counsel. Specifically, Lee argues that
the trial court’s denial of the request for new counsel resulted in structural error.
Substitution of trial counsel is required if a defendant can demonstrate good cause,
conflict of interest, breakdown in communications, or irreversible conflict.
In order to warrant a substitution of counsel during trial, the defendant
must show good cause, such as a conflict of interest, a complete
breakdown in communication or an irreconcilable conflict which leads
to an apparently unjust verdict. * * * If a court refuses to inquire into a
seemingly substantial complaint about counsel when he has no reason
to suspect the bona fides of the defendant, or if on discovering
justifiable dissatisfaction a court refuses to replace the attorney, the
defendant may then properly claim denial of his Sixth Amendment
right. * * * In the absence of a conflict which presents such a Sixth
Amendment problem, the trial court has discretion to decide whether
to grant a continuance during the course of trial for the substitution of
counsel, and that decision will be reversed only if the court has abused
its discretion. * * *
(Citations omitted.) United States v. Calabro, 467 F.2d 973, 986 (2d Cir.1972).
Herein, a review of the trial court transcript clearly demonstrates that
Lee failed to establish good cause for the discharge of court-appointed trial counsel
and the need for the appointment of new trial counsel. Lee failed to demonstrate a
conflict of interest with counsel, a breakdown in communication with counsel, or
any irreconcilable conflict. See tr. 9-12; State v. Pruitt, 18 Ohio App.3d 50, 480
N.E.2d 499 (8th Dist.1984); State v. Patterson, 8th Dist. Cuyahoga No. 100086,
2014-Ohio-1621.
In addition, we find no structural error based upon the trial court’s
denial of Lee’s request for new trial counsel. Structural errors are those errors that
are so intrinsically harmful as to require automatic reversal without consideration
of their effect on the outcome of the trial. State v. Hill, 92 Ohio St.3d 191, 2001-
Ohio-141, 749 N.E.2d 274; State v. Webster, 8th Dist. Cuyahoga No. 102833, 2016-
Ohio-2624. We find no structural error based upon the trial court’s denial of a
request for new trial. Lee has failed to establish any prejudice through his first
proposed assignment of error.
III. Second Proposed Assignment of Error
Lee’s second proposed assignment of error is that:
Trial counsel was ineffective for failing to move to sever irrelevant and
prejudicial counts.
Lee, through his second proposed assignment of error, argues that
trial counsel was ineffective by failing to request the severance of counts for trial.
Specifically, Lee argues that he was prejudiced by the simultaneous trial of the
offenses of murder and drug possession.
Lee has failed to establish how he was prejudiced by the failure of trial
counsel to request severance for trial of the offenses for murder and drug possession.
To the contrary, the charged offenses of murder and drug possession were directly
related to each other and were simple and direct. State v. Lott, 51 Ohio St.3d 160,
555 N.E.2d 293 (1990).
In addition, Crim.R. 8(A), provides that two or more offenses may be
charged together if the offenses are of the same or similar character, or are based on
the same act or transaction, or are part of a course of criminal conduct. State v.
Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80; State v. Williams, 73
Ohio St.3d 153, 652 N.E.2d 721 (1995); State v. Ferrell, 8th Dist. Cuyahoga No.
100659, 2014-Ohio-4377. Ohio law clearly favors joining multiple offenses in a
single trial if the requirements for joinder under Crim.R. 8(A) are met. Joinder is
liberally permitted to conserve judicial resources, reduce the chance of incongruous
results in successive trials, and diminish inconvenience to the witnesses. State v.
Nitsche, 8th Dist. Cuyahoga No. 103174, 2016-Ohio-3170; State v. Dantzler, 10th
Dist. Franklin Nos. 14AP-907 and 14AP-908, 2015-Ohio-3641; State v. Morales,
10th Dist. Franklin Nos. 03AP-318 and 03AP-319, 2004-Ohio-3391. Lee has failed
to establish any prejudice through his second proposed assignment of error.
IV. Third Proposed Assignment of Error
Lee’s third proposed assignment of error is that:
Appellant was denied effective assistance of counsel where trial counsel
failed to move for the exclusion of irrelevant and prejudicial evidence.
Lee, through his third proposed assignment of error, argues that he
was prejudiced by the failure of trial counsel to request the exclusion of “irrelevant,
inconclusive, and prejudicial evidence.” Specifically, Lee argues that testimony from
a Forensic Scientist, concerning a Trace Metal Detection Test and a Griess Test,
should have been excluded pursuant to a Daubert challenge.
Lee has failed to establish any prejudicial effect by the admission of
testimony regarding a Trace Metal Detection Test and a Griess Test. To the contrary,
the testimony adduced at trial provided negative results that favored Lee. State v.
Alexander, 8th Dist. Cuyahoga No. 104281, 2017-Ohio-9011. Lee has failed to
establish any prejudice through his third proposed assignment of error.
V. Fourth Proposed Assignment of Error
Lee’s fourth proposed assignment of error is that:
The admission of opinion testimony over objection, denial of motion
for mistrial, and failure to provide a narrowly tailored limiting
instruction resulted in a denial of Appellant’s right to due process.
Lee, through his fourth proposed assignment of error, argues that he
was prejudiced by the testimony of a police officer. Specifically, Lee argues that the
statement of the police office, concerning Lee’s credibility, was improper and should
have resulted in a new trial.
The testimony of the police officer was not directed toward the
credibility of Lee as a witness.
PROSECUTOR: And did anyone else come forward to provide you with
any information with respect to the death of victim?
POLICE OFFICER: Outside of the anonymous calls that I testified
about earlier, no.
PROSECUTOR: The vehicles, the Tahoe and the Blazer, are those still
in the custody of the Cleveland Police Department?
POLICE OFFICER: No.
PROSECUTOR: What happened to them?
POLICE OFFICER: The TrailBlazer that [victim] was driving was
returned to [owner].
PROSECUTOR: Okay.
POLICE OFFICER: And the vehicle that the defendant was driving was
returned to a friend of his.
PROSECUTOR: Okay. The keys that were found with [victim’s]
belongings on the scene where he was shot, did those go with the
TrailBlazer?
POLICE OFFICER: Yes.
PROSECUTOR: And were those turned over to the owner of the Blazer
when they came to the police department to get it?
POLICE OFFICER: Yes.
PROSECUTOR: I have nothing further.
THE COURT: Mr. [Defense Counsel].
DEFENSE COUNSEL: Thank you, Judge
***
DEFENSE COUNSEL: So in response to the prosecutor’s question of
[Police Officer], I asked to approach the bench, and my argument was
that any answers elicited were going to be opinion testimony on the
credibility of my client, whose statement we just heard during the
course of the last several days. And I objected at that point, and then
the prosecutor asked another question with reference to that, and the
detective actually answered in response to the prosecutor’s question
about my client’s credibility or lack thereof.
So, Judge, at this time, as a result of the Ohio Supreme Court in State
v. Boston and the fact that there was direct opinion testimony of, one
fact witness of the defendant that I’m going to make a motion for
mistrial.
PROSECUTOR: Your Honor, the State of Ohio objects to that motion.
The questioning of [Police Officer] was not regarding his opinion with
respect to the defendant’s credibility in his unsworn statement that
we’ve listened to for the last three hours, but rather directly based upon
his own investigation in attempts to verify the information provided by
the defendant. So it wasn’t his, you know, he’s not ─ I don’t find him
to be credible. That wasn’t the testimony of [Police Officer]. It was,
rather, I was unable to verify the information that he provided with
respect to his credibility.
So we’d ask that the motion be denied.
THE COURT: The motion is denied.
DEFENSE COUNSEL: Thank you, Judge.
Tr. 522-528.
The testimony of the police officer was related to statements made by
Lee to the police and did not impeach the credibility of Lee. State v. Eastham, 39
Ohio St.3d 307, 530 N.E.2d 409 (1988). We further find that the trial court properly
denied the motion for mistrial, because the testimony of the police officer did not
attack Lee’s credibility. State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-
2175. Lee has failed to establish any prejudice through his fourth proposed
assignment of error.
VI. Fifth Proposed Assignment of Error
Lee’s fifth proposed assignment of error is that:
The trial court erred in admitting gruesome, irrelevant photographs
over defense objection.
Lee, through his fifth proposed assignment of error, argues that the
trial court erred by allowing the admission of two autopsy photographs. Specifically,
Lee argues that the cause of death was not in dispute, thus limiting any probative
value of the photographs.
A trial court may reject a photograph due to its inflammatory nature
if on balance the prejudice outweighs the relevant probative value. However, the
mere fact that a photograph is gruesome or horrendous is not sufficient to render it
per se inadmissible. State v. Woodards, 6 Ohio St.2d 14, 215 N.E.2d 568 (1966).
The trial court has broad discretion in the admission of evidence and unless it has
clearly abused its discretion and the defendant has been materially prejudiced by
the admission of any photograph, this court may not interfere with the trial court’s
judgment. State v. Hymore, 9 Ohio St.2d 122, 224 N.E.2d 126 (1967).
The fact that Lee stipulated to the cause of death does not
automatically render the photographs inadmissible. The two photos, state’s exhibits
199 and 120, corroborated and illustrated the testimony of the deputy medical
examiner who performed the autopsy of the victim. He testified as to the location,
extent, and cause of the wounds sustained by the victim. The state did not use the
two photographs to appeal to the jurors’ emotions and to prejudice them against
Lee. State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407 (1987); State v. Keenan,
66 Ohio St.3d 402, 613 N.E.2d 203 (1983). The state employed the photos at the
trial to corroborate and illustrate the cause of the victim’s death and to carry the
state’s ultimate burden of proof that Lee was guilty beyond a reasonable doubt. We
cannot say that the trial court abused its discretion in allowing the admission of the
two photographs. State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). Lee
has failed to establish that he was prejudiced through his fifth proposed assignment
of error.
VI. Sixth Proposed Assignment of Error
Lee’s sixth proposed assignment of error is that:
The inclusion of the flight instruction over objection of defense counsel
was reversible, prejudicial error.
Lee, through his sixth proposed assignment of error, argues that the
trial court erred by providing the jury with a flight instruction. Specifically, Lee
argues that there existed no basis to allow the trial court to instruct the jury
regarding flight.
We conclude that the trial court did not err when it instructed the jury
regarding Lee’s flight from the scene of the victim’s murder. The evidence
established that Lee fled from the murder scene. It is significant that after he fled
following the murder, Lee did not return to the scene of the murder but was arrested
the next morning following a tip. The evidence adduced at trial warranted the flight
instruction given by the trial court. State v. Wood, 2d Dist. Clark No. 2010-CA-42,
2011-Ohio-2314; State v. Frock, 2d Dist. Clark No. 2004-CA-76, 2006-Ohio-1254.
Lee has failed to establish that he was prejudiced through his sixth proposed
assignment of error.
VII. Seventh Proposed Assignment of Error
Lee’s seventh proposed assignment of error is that:
Incomplete and inaccurate self-defense jury instructions, given over
defense objection, constituted structural error and a denial of
Appellant’s due process rights.
Lee, through his seventh proposed assignment of error, argues that
the trial court improperly instructed the jury with regard to the claim of self-defense
which resulted in structural error. However, Lee fails to explain how he was
prejudiced by the trial court’s jury instruction.
App.R. 26(B) mandates that Lee not only set forth assignments of
error, but Lee must also indicate the manner in which such deficiency prejudicially
affected the outcome of his appeal. Relative to this assignment of error, appellant
has failed to explain how he was prejudiced. The simple claim that the trial court’s
refusal to “include language sought by the defense” does not establish any prejudice.
State v. Simpson, Slip Opinion No. 2020-Ohio-6719; State v. Marcum, 7th Dist.
Columbiana No. 10-CO-17, 2012-Ohio-2721.
In addition, the jury instructions delivered by the trial court were
based upon the Ohio Jury Instructions that dealt with self-defense against danger of
death or great bodily harm and the use of deadly force. “The instructions found in
Ohio Jury Instructions are not mandatory. Rather, they are recommended
instructions based primarily upon case law and statutes, crafted by eminent jurists
to assist trial judges with correctly and efficiently charging the jury as to the law
applicable to a particular case.” State v. Settle, 11th Dist. Trumbull No. 2015-T-0119,
2017-Ohio-703, ¶ 25.
Herein, a review of the record indicates that the trial court employed
Ohio Jury Instructions, CR Section 421.21 with regard to its instruction on self-
defense. The jury instructions provided were identical to the language provided by
the Ohio Jury Instructions and were complete. We find no prejudicial error
associated with the trial court’s jury instructions that dealt with self-defense. State
v. Chavez, 3rd Dist. Seneca Nos. 13-19-05, 13-19-06, and 13-19-07, 2020-Ohio-426;
State v. Everett, 1st Dist. Hamilton No. C-140275, 2015-Ohio-5273. Lee has failed
to establish that he was prejudiced through his seventh proposed assignment of
error.
VIII. Eighth and Ninth Proposed Assignments of Error
Lee’s eighth proposed assignment of error is that:
Appellant’s conviction was against the manifest weight of the evidence.
Lee’s ninth proposed assignment of error is that:
The State failed to present sufficient evidence to prove each and every
element of the offense beyond a reasonable doubt.
Lee, through his eighth and ninth proposed assignments of error,
argues that his convictions were against the manifest weight of the evidence and not
supported by sufficient evidence. Lee, however, has failed to present any cognizable
argument with regard to the eighth and ninth proposed assignments of error. Thus,
Lee has failed to demonstrate how appellate counsel’s performance was deficient
and that he was prejudiced by appellate counsel’s claimed deficiencies.
In State v. Kelly, 8th Dist. Cuyahoga No. 74912, 2000 Ohio App.
LEXIS 2907 (June 21, 2000), this court established that the mere recitation of
assignments of error is not sufficient to meet the burden to prove that the applicant’s
appellate counsel was deficient for failing to raise the issues he now presents, or that
there was a reasonable probability that the applicant would have been successful if
the presented issues had been considered in the original appeal. See also State v.
Jones, 8th Dist. Cuyahoga No. 99703, 2014-Ohio-4467; State v. Hawkins, 8th Dist.
Cuyahoga No. 90704, 2009-Ohio-2246. The failure of Lee to present any cognizable
argument with regard to manifest weight and sufficiency of the evidence results in
the failure to demonstrate that his appellate counsel was deficient and that he was
prejudiced by the alleged deficiency. State v. Freeman, 8th Dist. Cuyahoga No.
95511, 2011-Ohio-5151.
Notwithstanding the failure of Lee to present any cognizable
argument in support of his eighth and ninth proposed assignments of error, a review
of the record clearly demonstrates that the convictions for the offenses of murder,
felonious assault, carrying a concealed weapon, drug possession, and possessing
criminal tools were not against the manifest weight of the evidence. In a manifest
weight analysis, an appellate court reviews the entire record, weighs the evidence
and all reasonable inferences, considers the credibility of witnesses, and resolves
conflicts in the evidence. An appellate court may not substitute its view for that of
the jury unless it finds that the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed, and a new trial ordered.
We cannot say that the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed. State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264; State v. Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541 (1997); State v. Walker, 8th Dist. Cuyahoga No. 109328, 2021-
Ohio-2037.
Finally, when reviewing the sufficiency of the evidence to support a
criminal conviction, this court is required 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. A review of the record demonstrates that sufficient evidence was
adduced at trial to support Lee’s conviction for the offenses of murder, felonious
assault, carrying a concealed weapon, and possessing criminal tools. State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991); State v. Matthews, 8th Dist. Cuyahoga
No. 97916, 2012-Ohio-5174; State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-
Ohio-20. Lee has failed to establish that he was prejudiced through his eighth and
ninth proposed assignments of error.
Application denied.
ANITA LASTER MAYS, JUDGE
MARY J. BOYLE, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR