State v. Conner

[Cite as State v. Conner, 2014-Ohio-4669.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99557
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTHONY CONNER
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-12-566159-A
Application for Reopening
Motion No. 475043
RELEASE DATE: October 22, 2014
FOR APPELLANT
Anthony Conner, pro se
#634-718
Lorain Correctional Institution
2075 S. Avon Belden Ave.
Grafton, OH 44044
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Jesse W. Canonico
Daniel T. Van
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} On May 21, 2014, the applicant, Anthony Conner, pursuant to App.R. 26(B)
and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this
court’s judgment in State v. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, in
which this court affirmed Conner’s convictions and sentences for aggravated murder,
murder, felonious assault, discharge of a firearm on or near a prohibited premises, and
having a weapon while under disability. On June 25, 2014, Conner filed a supplement
to his application, and on July 28, 2014, the state filed its brief in opposition. Conner
argues that his appellate counsel was ineffective because he did not argue (1) that the trial
court erred in failing to suppress a suggestive pretrial identification, and (2) that the
prosecutor used perjured evidence and an improper argument to secure the conviction.
For the following reasons, this court denies the application.
{¶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, 660 N.E.2d 456 (1996).
{¶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, 672 N.E.2d
638 (1996).
{¶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} In the present case in the early morning of August 20, 2012, a fight broke
out at the Sirrah House, a night club, and the club ordered everyone out. The fight
continued in the parking lot. Police officers responding to the altercation saw Conner in
a red-plaid, long-sleeve shirt shooting a black and silver .45-caliber handgun. When the
officers chased Conner, he dipped down among the cars and then emerged. The officers
caught and arrested him some distance from the nightclub, but he was without a firearm.
Subsequently, the police found a black and silver .45-caliber handgun near the location
where Conner had dipped down.
{¶7} During the fight in the parking lot, several people were injured, and Damon
Woodard was shot to death. The medical examination recovered a morgue pellet from
Woodard that had been fired from the black and silver .45-caliber handgun.
{¶8} Marquis Hollowell identified Conner as the shooter while Conner was in a
police car in the parking lot. Subsequently, during a police investigatory interview, a
detective showed Hollowell a single photograph of Conner, and Hollowell reaffirmed his
identification of Conner as the shooter. However, at trial, Hollowell testified that he
could not remember anything from that night. The trial court allowed the state to play
the entire video recording of the detective’s interview with Hollowell, including his
identification of Conner from the single photograph, to impeach or to refresh his memory.
Nevertheless, Hollowell insisted that he could not remember anything. Thus,
Hollowell never identified Conner as the shooter for purposes of trial evidence.
Conner’s trial counsel moved for a mistrial because of the prejudicial nature of video
recording. The trial judge denied the motion and instructed the jury that “[t]he
videotaped interview of Marquis Hollowell is not to be considered as substantive
evidence but only for impeachment purposes.” (Tr. 1531.)
{¶9} In his first argument, Conner submits that his appellate counsel should have
argued that the trial court erred in failing to suppress this suggestive pretrial
identification. Conner argues that showing a witness a single photograph is highly
suggestive and creates a very substantial likelihood of misidentification. State v. Battee,
72 Ohio App.3d 660, 595 N.E.2d 977 (11th Dist.1991). He further notes that the single
photograph procedure is counter to the eyewitness identification procedures specified in
R.C. 2933.83.
{¶10} This argument is not well-founded. First, the trial judge need not have
suppressed this “identification” because it was not offered as substantive evidence but for
purposes of impeachment or refreshing memory. This court further notes that neither
Battee nor R.C. 2933.83 prohibit other means of identification, if the totality of the
circumstances indicate that the identification was reliable.
{¶11} Moreover, appellate counsel continued the trial strategy that playing
Hollowell’s interview was grounds for a mistrial. In this, he made the playing of the
recording part of a larger argument that the admission of other acts evidence and
prosecutorial misconduct demanded a mistrial. Appellate counsel emphasized in this
assignment of error that playing the recording was prejudicial to Conner and denied him
his right to confrontation and to a fair trial. Appellate counsel focused on the interview
in the second assignment of error that the trial court erred in allowing Hollowell to testify1
and in allowing the state to play the recorded interview. Appellate counsel argued that
the interview was improperly proffered for impeachment purposes because there was
nothing to impeach. Hollowell’s lack of memory did not contradict his earlier
statements; he just could not remember them. Furthermore, allowing the jury to hear
Hollowell identify Conner as the shooter was material and irreparable prejudice.
Following the admonitions of the United States Supreme Court, this court will not
second-guess appellate counsel’s strategy and tactics in seeking to obtain a reversal based
on the playing of the video recording.
{¶12} Finally, Conner has not established prejudice. In its opinion, this court
repeatedly noted there was overwhelming evidence that Conner killed Woodard.
Specifically, in regard to the playing of the interview, this court stated that the trial court
instructed the jury not to consider the recording as substantive evidence, but only for
impeachment purposes. “We have no basis to find that the jury did not follow the
court’s instructions, especially in light of all of the evidence outlined previously in our
Defense trial counsel questioned Hollowell’s competency to testify because he had been
1
declared incompetent to stand trial and because he said that he could not remember anything about the
incident.
opinion.” Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶ 73. The court
indicated that with the curative instruction the interview did not play a causal role in the
conviction. Suppressing the interview ab initio would not have changed the result of the
trial.
{¶13} Conner’s second argument is that appellate counsel should have argued
prosecutorial misconduct in proffering perjured testimony and improperly characterizing
some of the witnesses as “lying felons” during closing argument. Conner endeavors to
characterize inconsistencies in Deandre Stephens’s testimony as perjured evidence. 2
The prosecutor called Stephens as a witness, and when Stephens seemed evasive in
answering, the judge granted the prosecutor’s motion to treat him as a hostile witness.
Conner first focuses on an exchange in which the prosecutor asked Stephens whether
Conner had almost run over him when everybody was running around the parking lot.
The prosecutor apparently was seeking an answer consistent with Stephens’s interview
with the detective that Conner probably could have run him over. Instead, Stephens
testified there were so many people running into each other and bumping into each other
that Conner probably could have almost run him over, but Stephens did not know if
Conner had done that and that he did not see Conner in the parking lot. Next, the
prosecutor asked Stephens if he knew whether Conner had a gun that night. Stephens
said, “No.” The prosecutor then tried to impeach him with the interview with the
Stephens and Conner were friends. They came to Sirrah House together in Stephens’s
2
girlfriend’s car.
detective in which Stephens said “No. I do not know.” It is difficult to discern how
these inconsistencies amount to perjury, much less how this testimony prejudiced Conner.
It is understandable how appellate counsel in the exercise of professional judgment
could decide not to argue this point. Finally, appellate counsel did argue prosecutorial
misconduct in characterizing some of the witnesses as “lying felons.” Thus, Conner’s
argument is unpersuasive.
{¶14} Accordingly, this court denies the application to reopen.
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR