State v. Magwood

[Cite as State v. Magwood, 2019-Ohio-5238.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108155
v. :
JONATHAN MAGWOOD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 19, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-611500-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Gregory J. Ochocki, and Mary Frey, Assistant
Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Noelle A. Powell, Assistant Public Defender, for appellant.
PATRICIA ANN BLACKMON, J.:
Jonathan Magwood (“Magwood”) appeals from the trial court’s
denial of his petition for postconviction relief and assigns the following errors for
our review:
I. The trial court erred by denying Magwood relief on his post-
conviction petition when the evidence presented with the
petition showed that Mr. Magwood received ineffective
assistance of counsel.
II. The trial court erred by denying Magwood relief on his post-
conviction petition when the evidence presented with the
petition showed that the state withheld Brady material.
Having reviewed the record and pertinent law, we affirm the trial
court’s judgment. The apposite facts follow.
On May 3, 2017, the trial court found Magwood guilty of three counts
of rape in violation of R.C. 2907.02(A)(2), a first-degree felony, kidnapping with a
sexual motivation specification in violation of R.C. 2905.01(A)(4), a first-degree
felony, and petty theft. These convictions stemmed from an incident that occurred
on August 20, 2016, at a Taco Bell on the west side of Cleveland. According to the
victim, T.J., she went into the women’s restroom at the Taco Bell, Magwood forced
his way into the bathroom after her, and then he raped her. DNA evidence
confirmed that Magwood and T.J. engaged in sexual conduct, and video surveillance
evidence showed that Magwood followed T.J. into the Taco Bell and forced his way
into the women’s bathroom. Magwood’s defense throughout the trial was that this
conduct was consensual.
On June 7, 2017, the court sentenced Magwood to 22 years in prison.
Magwood filed a direct appeal, and this court reversed the petty theft conviction and
affirmed Magwood’s remaining convictions as well as his prison sentence. State v.
Magwood, 8th Dist. Cuyahoga No. 105885, 2018-Ohio-1634.
On July 24, 2018, Magwood filed a petition for postconviction relief,
arguing that the state failed to disclose Brady1 material, and his trial counsel was
ineffective for failing to investigate T.J.’s credibility and failing to present mitigating
evidence at sentencing. On December 21, 2018, the court held a hearing on
Magwood’s petition, and on December 27, 2018, the court denied the petition. It is
from this order that Magwood appeals.
Postconviction relief
This court reviews a trial court’s decision on postconviction relief
petitions for an abuse of discretion. State v. White, 8th Dist. Cuyahoga No. 90544,
2008-Ohio-4228, ¶ 19, citing State v. Calhoun, 86 Ohio St. 3d 279, 281, 714 N.E.2d
905 (1999).
Pursuant to R.C. 2953.21(A)(1)(a),
[a]ny person who has been convicted of a criminal offense * * * who
claims that there was such a denial or infringement of the person’s
rights as to render the judgment [constitutionally] void or voidable
* * * may file a petition in the court that imposed sentence, stating the
grounds for relief relied upon, and asking the court to vacate or set
aside the judgment or sentence or to grant other appropriate relief.
A postconviction petition does not provide a petitioner a second
opportunity to litigate his or her conviction. State v. Steffen, 70 Ohio St. 3d 399, 410,
639 N.E.2d 67 (1994); State v. Smith, 8th Dist. Cuyahoga No. 93534, 2010-Ohio-
1869, ¶ 11. Rather, it is a means to reach constitutional issues that would otherwise
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
be impossible to reach because the evidence supporting those issues is not contained
in the record. Id. at ¶ 12.
Ineffective assistance of counsel
To succeed on a claim of ineffective assistance of counsel, a defendant
must establish that his or her attorney=s performance was deficient and that the
defendant was prejudiced by the deficient performance. Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). However, “a court need not
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. The object
of an ineffectiveness claim is not to grade counsel’s performance.” Id. at 697. See
also State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 3743 (1989).
In the case at hand, Magwood argues that “trial counsel’s
performance fell below an objective standard of reasonableness in two crucial ways
— the failure to investigate the alleged victim and the failure to make a thorough
mitigation presentation.” Magwood first argues that defense counsel failed to
investigate T.J.’s credibility, which would have “uncovered” 2011 and 2015 police
reports alleging, respectively, that T.J. “behaved in a physically aggressive manner”
and that T.J. abused emergency room medical services.
Pursuant to Evid.R. 608(B),
[s]pecific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’s character for truthfulness, other
than conviction of [a] crime as provided in Evid.R. 609, may not be
proved by extrinsic evidence. They may, however, in the discretion of
the court, if clearly probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness * * * concerning the
witness’s character for truthfulness or untruthfulness * * *.
We note that Magwood is speculating on appeal that his counsel failed
to investigate T.J. As the trial court found, “Magwood did not provide any evidence
in support of his Petition * * * that his trial counsel did not have knowledge of, or
possession of, the above-described reports prior to trial.” Furthermore, as the state
argued, there is no evidence in the record regarding whether defense counsel
“decided not to use [the reports] for trial strategy purposes.”
The first police report, which concerned a domestic violence situation
involving T.J., resulted in T.J.’s arrest but did not lead to a conviction. This report
is inadmissible under Evid. R. 608(B). See also State v. Rogers, 8th Dist. Cuyahoga
No. 62840, 1993 Ohio App.LEXIS 3056 (“Evid.R. 609(A) limits an impeachment of
a witness to convictions and clearly does not allow the introduction of evidence
which merely shows the witness to be under indictment.”)
The second police report concerns T.J. repeatedly visiting an
emergency room in Geauga County for a non-emergency injury to her arm.
Apparently, the emergency room staff had to call security and this resulted in police
involvement. According to the state, “[t]here is in no way, shape or form in that
report a police officer saying she’s lying.” Furthermore, there is no evidence in the
record that T.J. was arrested, charged, or convicted in relation to this report.
Magwood has failed to show that the police reports in question in the
case at hand are clearly probative of T.J.’s truthfulness or untruthfulness. T.J.’s
credibility is certainly at the heart of this case, but Magwood is not alleging that T.J.
filed false police reports or was untruthful in any other way regarding the 2011 and
2015 police reports. Therefore, we cannot say that trial counsel was ineffective for
failing to investigate T.J.’s credibility.
Turning to Magwood’s second argument regarding ineffective
assistance of counsel, “[t]he extent to which counsel presents mitigation evidence at
a sentencing hearing is generally a matter of trial strategy.” State v. Tinsley, 8th
Dist. Cuyahoga No. 105551, 2018-Ohio-278, ¶ 17. “Debatable trial tactics and
strategies generally do not constitute deficient performance” in the context of
ineffective assistance of counsel claims. State v. Boyd, 8th Dist. Cuyahoga No.
100225, 2014-Ohio-1081, ¶ 30.
In the case at hand, the trial court’s denial of Magwood’s
postconviction relief petition states that Magwood provided evidence to the court in
his mitigation of penalty report regarding his background, including his mental
health and that he was sexually abused as a child. Furthermore, the court stated
that “even if his trial counsel had presented additional detail regarding Magwood’s
background, there is no reasonable probability that information would have affected
this Court’s sentencing decision.”
Upon review, we cannot say that the counsel’s performance at trial
was deficient, and we cannot say that Magwood was prejudiced at trial. The victim’s
testimony was corroborated by forensic and video evidence, and the trial court
explicitly found that its verdict would have remained the same had the additional
evidence at issue been introduced in court. Accordingly, Magwood’s first assigned
error is overruled.
Brady Claim
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963), governs situations when the state withholds evidence that tends to exculpate
a criminal defendant. “When the prosecution withholds material, exculpatory
evidence in a criminal proceeding, it violates the due process right of the defendant
under the Fourteenth Amendment to a fair trial.” State v. Johnston, 39 Ohio St. 3d
48, 60, 529 N.E.2d 898 (1988). Brady violations may be found regardless of
whether the defense requested the evidence and “irrespective of the good faith or
bad faith of the prosecution.” Brady at 83, 87. In determining whether suppressed
evidence is material, courts consider whether “there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87
L. Ed. 2d 481 (1985). “A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” Id.
The “defendant bears the burden to show that the evidence not
produced was materially exculpatory, or that the failure to produce the evidence was
based on bad faith, in order to demonstrate a due-process violation.” State v.
Hartman, 2d Dist. Montgomery No. 26609, 2016-Ohio-2883, ¶ 84, 64 N.E.3d 519,
citing State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 74-
77.
For Brady purposes, the United States Supreme Court “disavowed
any difference between exculpatory and impeachment evidence * * *.” Kyles v.
Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). “When the
‘reliability of a given witness may well be determinative of guilt or innocence,’
nondisclosure of evidence affecting credibility falls within this general rule.” Giglio
v. United States, 405 U.S. 150, 154, 92 S. Ct. 736, 31 L. Ed. 2d 104 (1972), quoting
Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).
The linchpin of a Brady violation follows: “evidence is material, and
constitutional error results from its suppression by the government, ‘if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’” Id., quoting Bagley at 682. On
appeal, we apply a de novo standard of review to Brady claims. State v. McGuire,
8th Dist. Cuyahoga No. 105732, 2018-Ohio-1390, ¶ 19.
In the case at hand, Magwood argues that the state failed to disclose
relevant information relating to Cleveland Police Detective Morris Vowell
(“Detective Vowell”), who took T.J.’s statement as part of the investigation in this
case. At the December 21, 2018 hearing, Magwood introduced into evidence
Detective Vowell’s 2011 internal affairs report that the state disclosed as Brady
material in another matter. The gist of the report was that Detective Vowell had
been indicted for using a police computer for personal reasons. Ultimately, the
charges against Detective Vowell were dismissed. Magwood argued that the
“information in question goes to the heart of the professional integrity and
credibility of the investigating detective in this case,” and the state’s failure to
disclose the information deprived Magwood of the opportunity to impeach Detective
Vowell.
The state, on the other hand, argues that the 2011 charges against
Detective Vowell were public record as evidenced by news articles outlining the
detective’s legal troubles. According to the state, this information — albeit not the
internal affairs report — was not in the exclusive control of the police or the
prosecution. Although the state conceded that it turned the report over to the
defense in another case subsequent to the case at hand, the state did not concede
that Detective Vowell’s 2011 internal affairs report was Brady material. Rather, the
state argued that the evidence was given to other defense counsel as a precaution; it
was not suppressed in the case at issue, because it was known to the public; it was
not material in that it would not have changed the outcome of the proceedings; and
it was not admissible because it did not result in a conviction.
In Cindric v. Edgewater Yacht Club, 8th Dist. Cuyahoga No. 68365,
1996 Ohio App. LEXIS 1793 (May 2, 1996), this court held that “evidence of a theft,
whether alleged or admitted, is not probative — and certainly not ‘clearly’ probative
— on the issue of [a party’s] truthfulness (that is a theft does not necessarily involve
the telling of a falsehood).” Furthermore, in denying Magwood’s postconviction
relief petition, the trial court stated in its journal entry that “even if the information
contained within the Internal Affairs log regarding Detective Vowell had been
disclosed by the State prior to Magwood’s trial, there is no reasonable probability
that this Court’s verdict would have been different.” Additionally, prior to issuing
the journal entry, the court stated the following at the hearing on Magwood’s
petition: “I can represent a hundred percent that Detective Vowell’s testimony
played no role in reaching the conclusion that I did. His credibility or lack of
credibility was irrelevant.”
In Magwood’s direct appeal, this court summed up Detective Vowell’s
role in this case and testimony at trial as follows:
Detective Vowell took T.J.’s statement approximately one week after
the incident. He testified that she was crying, upset, and very emotional
during the statement. At one point, the detective turned off the
recorder and called a rape advocate to sit with T.J. because she was
“crying and upset and sh[a]ken up.” When T.J. regained her
composure, the detective continued with the interview.
As part of his investigation, Detective Vowell obtained the video
surveillance footage from Taco Bell and the assault evidence kit
collected by the SANE nurse. Through the DNA obtained from the
sexual assault kit, Detective Vowell identified Magwood as a suspect,
and T.J. later identified Magwood from a photo array as the person who
attacked her.
Upon review, we find that Magwood’s Brady claim lacks merit,
because allegations that Detective Vowell used a work computer for personal
reasons is not material to Magwood’s guilt in the case at hand. See State v. Brown,
115 Ohio St. 3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 49 (“As a rule, undisclosed
evidence is not material simply because it may have helped the defendant to prepare
for trial”).
Accordingly, Magwood’s second assigned error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR